Smith v. Belshaw
26 P. 834
Cal.
1891
Check Treatment
Garoutte, J.

— This is an action to recover damages from defendants on account of their negligence in suffering the roof of a drift in a coal mine to remain without support, by reason whereof a portion of said roof fell upon plaintiff, who was a laborer in the mine, and injured him.

A verdict for damages was rendered against M. W. Belshaw and Dickenson, and in favor of defendant Charles Belshaw.

This appeal is prosecuted by M. W. Belshaw from *430the judgment and order denying his motion for a new trial.

Under the law as applied to the facts of this case it plainly appears that no liability rests against the appellant, Belshaw. While we will not disturb the verdict of a jury where the evidence is conflicting upon substantial matters, yet in all cases the verdict must have some meritorious support from the evidence, or be set aside and disregarded.

In this case the evidence is undisputed that at the time of the accident, and for some months prior thereto, the mine was in the exclusive possession and control of defendant Dickenson, under a contract with Belshaw, who was the owner thereof; that under such contract Dickenson employed and paid the workmen; had entire charge of and authority over the mine, and received a fixed rate per ton, from Belshaw, for the coal taken therefrom, when the same was delivered to him.

The principle of law is so well settled that where one carries on an independent employment in pursuance of a contract by which he has entire control of the work and the manner of its performance, his employer is not liable for any negligence of which he may be guilty in the course of his employment, that the citation of authorities is unnecessary labor. Indeed, respondent’s counsel concedes the law, but insists that the evidence is sufficient to sustain the verdict. As already stated, we are unable to find it in the record. The fact that the miners were paid their wages at defendant Belshaw’s store, wTiere they had been paid prior to the contract with Dickenson, and the further fact that some of the miners thought they were working for Belshaw, are circumstances too slight to defeat the express and uncontradicted testimony as to the terms of the contract and the labor performed under it.

What the miners thought as to who was their employer is entirely immaterial.

*431There is no question of estoppel involved in the ease, and appellant, in order to escape liability for the negligence of Dickenson, was not bound to give any notice to the miners that he had given up the control of the mine.

This,is not an action on contract based upon ostensible agency, but is an action in tort, and must rest upon the actual facts, and the actual relations existing between the parties. (Samuelson v. Cleveland Iron M. Co., 49 Mich. 164; 43 Am. Rep. 456; Rourke v. White Moss Colliery Co., L. R 2 C. P. D. 206.)

In Gulzoni v. Tyler, 64 Cal. 336, this court said: “If the defendants were the owners of the bo d, but had not the possession, control, or management of rfc themselves, or by their agents or employees, they cannot be held responsible for the negligence or mismanagement of whosoever had the exclusive control, possession, and management of it. ”

. In Johnson v. Oioen, 33 Iowa, 515, it is said: “A bare belief of plaintiff, though founded on a reasonable causé, that Nash was defendant’s servant, which in no way had influenced his action, which was not intended to be created, and which was not the natural result of his acts, could not make him liable as the employer of Nash. It would be a very dangerous rule to hold that inferences and opinions concerning men’s actions, although founded upon reasonable cause, would render them liable for the acts of others.”

It is further contended by respondent, that the appellant was liable as owner of the mine; 1. That the accident occurred in an old drift that was used simply for the purposes of egress and ingress to that portion of the mine from which the coal was being extracted, and therefore it remained under the control of Belshaw; 2. That the mine was in an unsafe condition at the time appellant turned the possession of it over to Dickenson.

Neither of these positions can be successfully maintained.

*432The entire mine, as disclosed by the evidence, was turned over to Dickenson, and he had the same control, possession, and management of the old drifts used for the purposes of ingress and egress as he had over the portions where the miners were actually engaged in extracting the coal. And there is no testimony in the case indicating that this drift was in an unsafe condition at the time Dickenson assumed control. He had been in possession some months, when the rock which finally caused the injury was noticed to be dangerous.

The case of Samuelson v. Cleveland Iron M. Co., 49 Mich. 164, 43 Am. Rep. 456, heretofore cited, is quite similar to the one at bar in many respects, and we quote: “ That the mine at no time was a place of absolute safety is conceded; but the danger was not peculiar to this mine, and by itself raised no presumption of negligence. The question is, whether the defendant, at the time of delivering possession to the contractors, had neglected any precaution which ought to have been taken to guard against danger. .... The negligence, if any, must, on this showing, have consisted in the failure to inspect the roof frequently, and to bar down any rock that seemed likely to detach itself and fall, or to erect timbers to prevent the fall. Some personal fault must be involved, or neglect of duty, before there can be a personal liability.”

It follows from the foregoing views that the judgment and order must be reversed as to defendant M. W. Belshaw, and cause remanded for a new trial. It is so ordered.

Paterson J., and Harrison, J., concurred.