ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Appeal from District Court, Allen County. | were filed with the clerk thereof, and that Action by George W. Baker and wife there is technically no record of such proceedagainst William Readicker and others. Judg-ings. It appears, however, that the appelment for defendants, and plaintiffs appeal. lant procured another stenographer to tranAffirmed. scribe the evidence, and each party has filed While the proBennett & Cullison, for appellants. Ewing, an abstract based thereon. Gard & Gard, for appellees. ceedings are irregular, we will not dismiss the case.

SMITH, J. [1] The proceedings of the plaintiff in bringing this case to this court are very irregular, and the defendant contends that the appe.il should be dismissed. Section 6164 of the Gen. Stat. of 1909 (section 569, c. 182, Laws 1909), however, provides that when a notice of appeal is filed and served as therein provided the appeal shall be deemed perfected. Section 6169, ld. (section 574, c. 182, Laws 1909) is as follows: "Either party to any case tried in a court of record having an official stenographer may direct such stenographer to transcribe and certify to the correctness of all of the stenographer's notes of the testimony and proceedings in the case or any such part as such party may designate, and such transcript shall be made, certified and filed with the clerk of such court on payment to such stenographer by the party ordering the same of the costs of such transcript, and such transcript shall thereupon become a part of the record in the cause, subject to amendment and correction by the trial court or judge."

Section 6171, Id. (section 576, c. 182, Laws 1909) provides for an abstract of pleadings, records, etc., on appeal and has this provision: "In case of a challenge of the correctness of any part of an abstract, the court or any justice thereof may direct that all or any designated part of the original files, transcript of evidence, or other papers in the case, or copies of journal entries, or of other records of the said court, be forwarded by the clerk having the custody thereof to the clerk of the Supreme Court, and the costs incident to the determination of any question as to the correctness of any abstract shall be taxed against the party in the wrong by order of the Supreme Court."

Section 6169, supra, does not expressly require that a party taking an appeal from a court of record to this court shall procure a transcript of the stenographer's notes of the testimony to be certified and filed with the clerk of the court, but it seems to be the clear implication that the appellant should, at least, cause so much of the stenographer's notes of the evidence and proceedings to be transcribed, certified, and filed as may be pertinent to his appeal; otherwise, as there is no other provision for making it, there can be no such record in existence, and an order from this court, or any judge thereof, to certify up a transcript of the evidence would be futile. In this case it appears from the agreed statement of facts and admissions on the argument that no transcript of the evidence and proceedings in the district court 115 P.-8

In May, 1904, the appellants were the owners of 394 acres of land in Allen county, on which they executed a lease to the Sunflower & Shamrock Oil & Gas Company, a corporation, by which the company was authorized "to lay, maintain and remove such pipes and pipe lines, and erect, construct, maintain and remove all buildings, tanks, structures and machinery that may be necessary for the production and transportation of oil and gas and other minerals or water." The corporation proceeded to bore several wells upon the property, in which they found some gas and some oil. The company became indebted to a number of individuals, to whom it gave notes, and the notes came into the hands of one E. G. Drake, who brought suit against the company and recovered a judgment, in January, 1907, for $4,203.98, with interest and costs. Soon thereafter Drake caused execution to be issued on the judgment and levied upon the oil and gas lease, also the pipes, pipe line, casing, engines, boilers, shafting, pulleys, derrick, power house, and all other fixtures and machinery of the company located on the land. All of the property levied on was sold at sheriff's sale to Drake for $1,325. While the judgment was obtained by Drake, the money seems to have been advanced, in part, by Ewing and Hepperlen, and others interested in the corporation, but principally by the three named. The appellant G. W. Baker was president of the company, and the appellee William Readicker was also a director of the company.

Some time after the sale of the property Baker went to Nebraska, where the others named resided, except Readicker, who also lived in Kansas, and made a tentative agreement to form a partnership with Drake, Ewing, and Hepperlen, and a tentative agreement for a new lease from himself and wife to the copartnership. After Baker's return to Kansas, the Nebraska members of the contemplated partnership forwarded to him a proposed lease for him to execute. Instead of executing it, he inserted some additional provisions and conditions, and returned it to Nebraska for the consideration of the others. This proposed lease came into the hands of Drake, who refused to sign it, but has ever since retained it.

After his return from Nebraska, Baker took charge of the property and gathered up and took care of the piping, wells, etc., and con│tinued to do so until the appellees appeared with a bill of sale of all of the property sold at the sheriff's sale, executed by Drake to them. They took charge of the property and commenced to withdraw the casing from the

wells, when Baker and wife brought this ac- wells were not complying with the laws of tion and procured a temporary injunction | the state in the matter of plugging them, the to prevent the further progress of that work. temporary injunction should, at least, have Among other things, it was alleged in the been continued so as to prevent a further petition that the wells from which the cas- violation of the law. The judgment rendering had been removed were not properly ed by the court does, in effect, find that the plugged, and that great injury would result appellees must comply with the law before by reason thereof to the oil and gas bearing proceeding to dismantle other wells, although sands of the entire district. On the trial of the temporary injunction is dissolved. We the case the court rendered judgment against think the court might well have continued the plaintiffs and for the defendants, divid- the injunction to this extent, but it is a mating the costs, and vacated the temporary in- ter largely within the discretion of the trial junction, but decided that the wells had not court, and we cannot say that such discrebeen properly plugged in accordance with the tion was abused. laws of the state, and that, before dismantling any other wells, the defendants should comply with such laws.

The judgment is affirmed. All the Justices concurring.

(84 Kan. 560)

EVERY V. RAINS et alt (Supreme Court of Kansas. April 8, 1911.) (Syllabus by the Court.)

[2] The principal questions involved in this appeal seem to be whether a partnership was formed and a lease from the Bakers to the Nebraska parties was made, as contended for by the appellants. The evidence is conflicting as to the making of the contract of partnership, one party asserting 1. EVIDENCE (§ 208*) — ADMISSIONS-PLEADthat it was in writing and the other that it

was verbal, and both parties seem to imply that the organizing of the partnership was contingent upon the making of the lease. The appellants contend that, as they made and signed a lease on their part and forwarded it to Drake, who retained it, that it constituted an acceptance, and that the lease became operative.

We think the court was justified in finding that the retention by Drake of the proposed lease, sent by Baker to him, through Ewing, did not constitute an acceptance of the lease. Baker testified that Ewing was elected secretary of the proposed partnership and authorized to correspond with him, that he was to write the other members of the partnership, and, in short, to carry on any negotiations through Ewing. Drake, however, denies all this; denies that Ewing was made secretary, or that any such proposition was discussed. He says that he prepared a lease for Baker to sign, and that unless Baker signed that lease he (Drake) had nothing to act on, and he did not recognize anybody; that Baker did not sign that lease; that Ewing brought him another lease (the one appellants claim he accepted), and that he immediately declined to execute it; and that, while he declined to attach that copy to his deposition, he offered to permit a copy to be made, and it appears that a copy thereof was attached to his deposition. According to Baker's testimony, the authorities cited would probably apply, and the facts would constitute an acceptance of the lease by Drake; but according to Drake's testimony such would not be the case. It is for the trial court, and not this court, to weigh the evidence and pass upon the credibility of witnesses.

Appellants complain that, while the court found that the appellees in dismantling the

INGS.

party who becomes a defendant in another ac

Where a petition is filed in an action by a tion, it may be used in evidence on the trial of such other action against the party who filed it, if it contains statements material to the issue on trial, in the nature of admissions, or allegations tending to contradict his testimony.

ERROR

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 713-725; Dec. Dig. § 208.*] 2. TRIAL (§ 296*) · INSTRUCTIONS CURED BY OTHER INSTRUCTION. Where evidence was offered tending to support but one of three charges of negligence constructions read the petition to the jury, but in tained in a petition, and the court in giving ina separate instruction stated clearly the matters which the plaintiff was required to prove therein only the particular charge of negligence to make out a cause of action, and specified which was supported by evidence, and no request was made to otherwise eliminate or withdraw from the jury the other charges, it is held, tions of which the defendant can properly comthat there is no prejudicial error in the instrucplain.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 296.*]

3. MASTER AND SERVANT (§ 125*)-INJURIES
TO SERVANT-NEGLIGENCE.

have actual knowledge of the defective condition
It is not necessary that the master should
of a roof in a mine in order to be liable for a
personal injury to an employé by the falling
of a fragment therefrom, if in the exercise of
reasonable care the defect would have been
known, and the resulting injury avoided.
[Ed. Note. For other cases, see Master and
Servant, Cent. Dig. §§ 243-251; Dec. Dig. §
125.*]

4. MASTER AND SERVANT (§ 286*)-INJURIES
WORK-AC-

TO SERVANT-SAFE PLACE TO TIONS QUESTIONS FOR JURY. drift of a lead and zinc mine, the operators of To ascertain the condition of the roof in a the mine adopted the use of a prod, consisting of a piece of gas pipe, to test the roof and dislodge loose pieces therefrom. Whether the instruof its use satisfied the requirement of reasonment made use of and the method and frequency able care on the part of the master to make the

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexe

place safe for the servants was under the evi- [ and he, with other laborers, went onto the dence a question of fact for a jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1010-1050; Dec. Dig. 8

286.*]

5. MASTER AND SERVANT (§ 217*)-INJURIES

TO SERVANT-ASSUMPTION OF RISK.

The contention of the defendants that the evidence and findings of the jury require the court to hold as matter of law that the injured employé assumed the risk of the danger by which he lost his life is not sustained.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 574-600; Dec. Dig. 8 217.*]

shaft for safety. The shot was fired, after which the signal "That's all" was given by the shot firer in pursuance to his duty, which was a notice to the laborers to return

to their work. About five minutes afterwards, while Every was going back to his work, when within 20 feet of that place, a piece of soft rock fell from the roof, inflicting the injury from which he died. The drift varied from about 15 to 50 feet in width, and from 25 to 70 feet in height. Three was evidence tending to show that at

Appeal from District Court, Cherokee the place of the accident it was 45 to 50 feet County.

Action by Mrs. Jimmie Every against Charles L. Rains and others. Judgment for plaintiff, and defendants appeal. Affirmed. Wm. F. Sapp, A. Wilson, and S. C. Westcott, for appellants. T. T. Burr, E. E. Sapp, H. C. Finch, and Geo. Grayston, for appellee.

BENSON, J. This action is brought by a widow to recover damages for the death of her husband caused by the alleged negligence of the defendants in the operation as partners of a lead and zinc mine. The defendants Griggsby & Elliott admit that they were operating the mine at the time of the injury, but deny that the other defendants were their partners, or interested in the business. The other defendants deny the partnership, and deny any participation in the business until after the injury. The plaintiff recovered a judgment against all the defendants.

high and 50 feet wide. Fifteen or 20 feet
from this place there had been a cave-in at
the side of the drift extending to the roof
and opening to the light, so that the roof
could be seen. Along one side of the drift
near this place was a bench that had been
left about 15 feet from the floor.
It was
customary to prod the roof from time to
time with a piece of gas pipe about 15 feet
long, and at this place, where the roof was
high, the person using the prod mounted
this bench, but the entire roof could not be
reached by this means, and the prod was
used only so far as it could be done. This
prodding was the means adopted to ascertain
whether the roof was safe. The roof was
prodded in the morning of the day before
the injury. Griggsby and Elliott were prac-
tical miners, and were in the active control
of the operations. There was evidence tend-
ing to prove that prodding should be done
after each shot, the shots having a tendency
to loosen the roof; also, that the proper time
for firing shots was in the evening, although
it was testified that different mines had dif-
ferent regulations. The roof was of flint
rock, and the fragment that fell had not been
noticed before its fall. The cave-in occurred
about 15 or 20 days before this accident.

The negligence complained of and submitted to the jury was the failure to properly prod the roof. The jury found that the drift was lighted by the opening caused by the cave-in; that the roof of the mine could be seen by the miners; that Every was an experienced man; that he could see a person prodding the roof if that work had been in progress while he was returning from the shaft to his place. There is no evidence of the frequency of shots other than that a shot or shots had been fired the previous day. The evidence tends to show that this was after the prodding had been done in the morning of that day.

Every was a laborer in the mine. Some time before the accident the mine had been leased by the owner to Clary & Schultz, who had by written agreement given to Griggsby & Elliott the right to mine and hoist ore to the surface where it was received and crushed by Clary & Schultz, and, after paying the royalty, the proceeds were divided between these firms. Clary & Schultz had nothing to do with the mining operations underground. Afterwards Griggsby & Elliott became associated with the other defendants under the name of the Mineral King Mining Company to continue the mining operations and business before that time carried on by Clary & Schultz and Griggsby & Elliott. Every was killed while at work in the mine on the 21st day of October, 1909. He was shoveling ore into a tub standing on a push car in a drift about 100 feet from the shaft. His duty was to fill the tub, push the car to the shaft, and there attach it to the hoisting apparatus, and re- It is contended that the evidence is insufturn with another tub and repeat the opera- ficient to sustain a finding of negligence tion. Thirty feet beyond where he was at against any of the defendants, and also that work another laborer was drilling into the Every had full knowledge of the dangers face of the mine preparatory to blasting. and assumed the risk incident to his service. Every had just filled his tub, and started It is also earnestly contended that none of to push it to the shaft when he received a the defendants, except Elliott & Griggsby, signal that a shot was about to be fired, were partners in the business, or had any "For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

interest in the mining operations when the accident occurred. It was alleged in the petition that the defendants, as copartners, were carrying on the mine under the name of the Mineral King Mining Company.

all the defendants was in existence as early as October 1st. There was no positive evidence on the part of the defendants of the exact date, although they testified that it was after the accident.

It seems to be conceded that the finding that the defendants other than Elliott & Griggsby were copartners with them in carrying on the mine at the date of the injury is based principally on the admissions contained in the petition in the Schermerhorn case. Therefore the ruling upon the objection to the petition in that case is material. It is held in this state that such a pleading is admissible, when filed in the same action. Arkansas City v. Payne, 80 Kan. 353, 102 Pac. 781. The reasons stated in support of that ruling apply as well to pleadings filed by the same party in another action, and it was held in Solomon Rd. Co. v. Jones, 30

[1] The principal testimony to prove that the defendants other than Elliott & Griggsby were partners was a petition in a case wherein all these defendants, as plaintiffs, had sued the owner of the mine, Mr. Schermerhorn, for failure to make them a lease. This petition was signed by the same attorneys, who represented the defendants here. In that petition it was alleged that the plaintiffs named therein were a copartnership, and that the copartnership was formed on or about the 1st day of October, 1907. To this petition several exhibits were attached containing items dated in October prior to the date of the accident. After this action was commenced, an amended petition | Kan. 601, 2 Pac. 657, that a verified petition was filed in that action changing the date of the formation of the alleged partnership to November 1st, and omitting from the exhibits all items dated before that time.

It is insisted that there was error in admitting the petition in evidence. All the defendants (except one) testified that the Mineral King Mining Company was formed about November 1st, but no one gave the exact date. It seems that Mr. Elliott organized the company, and that the different individuals joined at different dates, according to their testimony near the 1st day of November, and each one testified that he had nothing to do with the mining operations before that time. It also appears from their testimony and that of the owner of the mine that the old lease to Clary & Schultz was surrendered on that day. No testimony was offered explanatory of the mistake in the dates given in the petition offered in evidence. There was also some evidence of accounts kept with laborers in the mine and of checks given in payment, but no checks, books, or other written evidence were offered to show when the change in the management of the mining operation occurred. The agreement between Clary & Schultz and Griggsby & Elliott was dated September

1907, and the jury found that to be the date upon which the defendants obtained the lease from the owner. This finding may have been based upon the belief of the jury that Elliott & Griggsby obtained the lease for the Mineral King Mining Company. However that may be, the date upon which the Mineral King Mining Company obtained their lease is quite immaterial; the vital question being whether the defendants, or Elliott & Griggsby alone, were the employers of this man at the time he was injured. The jury found that the defendants commenced their mining operations on or about October 1, 1907. The petition in the case against Schermerhorn, if admissible, contained some

in another action is admissible. See, also, Bank v. Edwards, 84 Kan. 495, 115 Pac. 118, just decided. While a verification may give additional probative force to the pleading as evidence, it is not necessary to make it admissible in evidence against the party filing it. 2 Wigmore on Evidence, § 1066; 2 Am. & Eng. Encyc. of L. & Pr. 184. The defendants were at liberty to show that the dates were inserted in the petition through mistake, or otherwise explain the allegation that the partnership was in existence before the date of the injury to Every, but they did not do so, and, notwithstanding their testimony that the partnership was formed afterwards, the finding of the jury in harmony with the allegations in the petition filed in another action before the plaintiff's claim was sued upon, being sustained by competent evidence, cannot be overturned on appeal.

The

The contention of the defendants that there is not sufficient evidence of negligence to sustain the verdict is based principally on the proposition that the defendants had no notice or knowledge that the roof of the mine was defective. Two of the defendants were practical miners and in personal management of the mining operations. fragment which fell was of different formation than most of the roof. While there was evidence that it could not be seen, it appears that it might have been discovered by prodding, the means resorted to to ascertain the condition of the roof, but it was a question for the jury whether it might have been. The last use of the prod before the injury was on the morning of the previous day, although shots had been fired afterwards on that day, which, as the evidence tends to show, would have a tendency to loosen fragments of the roof. Nothing was done by prodding or otherwise to ascertain its condition when work was commenced the next day, nor at any time before Every was kill

[2] No proof was offered to support any claim of negligence, except the one already referred to, but two other charges of negligence were contained in the petition, and in giving the instructions the petition was read to the jury. The defendants claim that the court thereby submitted issues without

the whole roof at the place of the injury, open to the ordinary observation of the and the system of inspection by the means workmen, or that they were aware of the adopted seems to have lacked method, and danger. that thoroughness reasonably commensurate with the dangers attending the hazardous operations of mining, especially when accompanied by the use of powerful explosives. The defendant Elliott testified that the prod was used "to get down any loose pieces that might be in the roof after we did some shooting. That roof had been prod-proof. ded all over. I don't remember exactly the last time. I prodded it sometimes, but Hulvey (the shot firer) did it most of the time. He run the machine and it was his place to prod it mostly. Anybody who got scared prodded it."

* then your

In stating what the plaintiff must prove to make out her case, the court instructed the jury that if the defendants "failed to properly prod the roof of the mine in question at the point where the deceased received the injury, and that the mine at that point was not properly cared for in a reasonably safe and suitable manner, and that by reason of the neglect the deceased met his death, verdict should be in favor of the plaintiff." In this instruction the court tersely stated the facts which the plaintiff was required to prove to make out a case, and the jury could not have been misled by the mere reading of the petition. Besides, if the defendants feared that they might be prejudiced by such reading, a request should have been made for an instruction eliminating every charge of negligence except the one referred to in the instruction quoted.

[3] Hulvey was the employé who gave the signal to call the men to come back to work, and the recall implied that it was safe for them to do so. Considering the inability to reach over the roof with the instrument used, and the lack of any definite method or particular times for making the inspection, the jury was justified in finding that the charge of negligence based upon the failure to properly prod the roof was sustained. That the defendants did not know of the defect will not excuse them if in the exercise of reasonable care it would have been discovered. 1 Shearman & Redfield on Negligence (5th Ed.) § 206; Wellston Coal [5] It is insisted that Every assumed the Company v. Swift, 65 Ohio St. 70, 61 N. E. risk of the injury, and that this is shown 143, 55 L. R. A. 99, note, 87 Am. St. Rep. by the evidence and by the special findings. 559; Solomon Rd. Co. v. Jones, 30 Kan. 601, It is said that the findings show that he 2 Pac. 657; 4 Thompson, Neg. § 3794. In was as well able to determine whether the Griffin v. Brick Co., 84 Kan 347, 114 Pac. drift was dangerous as all others who were 217, it appeared that a laborer had been in- working there. This may be true, and yet jured by a rock which had fallen from the the defendants may be liable. The risks asface or wall of an excavation at the foot of sumed by a servant in such a situation are which he was working in a shale pit. The stated in Griffin v. Brick Co., supra, and court said: "It was the duty of the appel- need not be restated here. If Every knew lee to use reasonable care to put the bank that proper inspection had not been made, in a condition and keep it in a condition there is no finding that he was aware of the which would render the operation of cars danger arising from the failure. It was held on the car track reasonably safe from all in King v. King, 79 Kan. 584, 100 Pac. 503, caving naturally to be anticipated in conse- a case involving injuries resulting from the quence of the steam shovel's work; and this use of a defectively constructed machine duty required that the bank be inspected that a servant to be chargeable with knowlwith the care and frequency which reasona- edge of a defect must not only know the ble prudence demanded under the conditions physical facts in relation thereto, but must presented." also know and appreciate the danger re[4] The evidence tends to show that the sulting therefrom. Brick Co. v. Mussulman, defendants knew that it was necessary to in- 78 Kan. 799, 99 Pac. 236; Carillo v. Conspect this roof to guard against such in- struction Co., 81 Kan. 823, 106 Pac. 1050. juries as the one causing the death of Every, "The servant does not accept the risks of and it was a proper question for a jury unknown, latent, unseen, or obscure defects under the circumstances presented whether or dangers, such as the servant would not reasonable care had been exercised in mak- discover by the exercise of ordinary care ing the inspection. The suggestion that the and prudence, having reference to his situalaborer could observe the defective roof as tion, but such as the master ought to discovwell as the employer is not persuasive. It er by exercising the duty of inspection which was not the duty of the laborer to make in- the law puts upon him to the end of seeing spection, but to attend to his work; while that the premises, tools, and appliances with it was the duty of the employer to exercise respect to which the servant is required to proper care to make the place reasonably labor are in a reasonably safe condition." safe. It does not appear that the defect was | 4 Thomp. Neg. (2d Ed.) § 4641. Other ob

« ÀÌÀü°è¼Ó »