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Upon this testimony, to order judgment for the defendant would be highly improper. If this case was before us for the first time, we should hesitate to disturb the verdict of the jury but for the decision of the justice presiding at the trial, whose decision will in ordinary cases be given much persuasive force by this court in appellate proceedings. Thus it has appeared to every judicial mind which has considered the testimony in this case that the deductions which may fairly be made upon the evidence are conflicting, that there is substantial evidence to support a verdict for the plaintiff, and that it is a case in which, under the constitution of this State, the determination of the facts must be made by a jury. The effect of the two opinions of this court in granting new trials was not that the verdicts in the plaintiff's favor were entirely unjustified, for in that case the court would have exercised its authority and ordered a judgment for the defendant. The opinions indicate rather that the court was not satisfied that justice had been done, that in its opinion another opportunity should be given to the parties to present further testimony if they were able, and that the court might have the benefit of the finding of another jury upon the issues. "In some States it has been provided by statute that there shall not be granted in any case to the same party more than two new trials on the ground that the verdict is contrary to the evidence, or that it is not sufficiently supported by the evidence. Thus fixing in those States the rule as to the effect of concurring verdicts when there bas been no error of law. In the absence of such statutory provision the doctrine has been generally accepted by the courts of the various States, that, in cases where the evidence is conflicting and a judgment can not be directed and successive juries have returned a verdict for the same party, there comes a time when the court upon the facts will no longer oppose their judgment to that of the jury but will bring long-continued litigation to a close. This doctrine has not been accepted in a few cases and by some eminent jurists in dissenting opinions and the position has been taken as in the dissenting opinion in McCann v. New York, etc., 73 App. Div. 305, 76 N. Y. Supp. 684: “A wrong committed, no matter how often, never makes a right. This verdict is wrong; it is the result of misconception, prejudice or partiality and ought not to be approved by the court. Upon substantially the same state of facts we have several times declared that the plaintiff ought not to recover, and yet we are about to permit a recovery, because the jury forsooth have, for the fourth time, committed the same wrong. The law imposes a duty upon this court to review verdicts, and whenever it can be seen that injustice has been done, by reason of the jury not properly considering the evidence, or that its action has been influenced either by prejudice or partiality, then the court ought, in the discharge of its duty, to fearlessly exercise the power given to it by the statute (Code Čiv. Proc., sec. 1317) and right the wrong by setting the verdict aside and ordering a new trial, and this as many times as may be necessary to accomplish the proper result. Justice never tires, and an act ought not to be approved in its name which wrongfully takes property from one person and gives it to another.” This position presupposes in the judicial mind an infallibility in the determination of conflicting issues of fact which few courts would claim for themselves. If it is unquestioned in the mind of the court that a wrong has been committed by the verdict of the jury, surely the verdict should not be allowed to stand. The law provides a method by which such wrong can be corrected, and regardless of the jury's verdict a judgment should be ordered for the other party. That an appellate court has twice remanded a cause for a new trial indicates that the evidence of a wrong committed is not indubitable. The court may have an opinion or a suspicion that an injustice has been done, but it is unable to so declare with certainty. Courts recognize that it is not given to human tribunals to determine with the exactness of mathematical demonstration what is the true and just conclusion upon conflicting facts, with regard to which there is the opposing testimony of witnesses, as to whose reliability and good faith different minds may reasonably disagree. Cases involving such conflicting statements of fact must of necessity be determined in the courts, ultimately by the finding of a jury, but the true solution can not be found with demonstrative certainty. Hence an appellate court, having given sufficient opportunity for a fair determination of such disputed questions, will not longer interfere with the finding of the jury. To take this course is not to weakly permit or to approve the doing of a wrong in the name of justice, but is to recognize the proper functions of the court and the jury, and, after exercising due caution to prevent injustice, places the determination of disputed questions of fact in the tribunal provided by our constitution and laws. This doctrine has been recognized by this court.
In the case at bar we are of the opinion that the time has now arrived when this rule with regard to concurring verdicts should be applied, and if there has been no error of law occurring at the trial, which affects the jury's verdict, that verdict should be allowed to stand. This conclusion as to the force and effect of the three successive verdicts for the plaintiff, notwithstanding the decision of the justice of the superior court is not in disregard of the rule in Wilcox V. Rhode Island Co., 29 R. I. 292, 70 Atl. 913. The doctrine as to the force of concurring verdicts is superior to the rule in the Wilcox case. When the time comes in any case for the application of that doctrine, it will be applied not only in disregard of the decision of the justice of the superior court, but also in disregard of our own former conclusions in the case.
The defendant does not press before us the question of excessive damages which was one of the grounds for its motion for a new trial before the superior court. We have, however, considered the question, and although the amount awarded by the jury is large, in view of the very serious permanent injury to the plaintiff, we can not say that it is excessive.
The plaintiff's exceptions are sustained and the case is remitted to the superior court, with direction to enter judgment upon the verdict.
EMPLOYERS' LIABILITY-SAFE PLACE TO WORK ACT OF FOREMAN—Campbell v. Jones, Supreme Court of Washington, 110 Pacific Reporter, page 1083.-Murdock Campbell sued E. N. Jones and others to recover damages for injury received by him in the course of his employment. Campbell was engaged by a firm, Jones & Onserud, contractors for the construction of a railway, and was injured by the act of his foreman, Lundin, who, in uprooting a small stump for the purpose of procuring fuel for a fire to heat the tools used, accidentally loosened a stone on a hillside above the place where Campbell was at work. The suit was brought against both the railroad company and the contractors, and recovery was denied as against both parties in the superior court of Spokane County. On appeal, however, the case was reversed as against the contractors, while the railroad company was held to be in no way responsible.
The principal point of interest is the ruling of the court on the contention of the defendants that the act of Lundin in loosening the stone was that of a fellow servant, for which they were not responsible. This view the court rejected, as appears from the following quotation from its opinion, as delivered by Judge Fullerton, October 3, 1910:
We think the court erred in sustaining the challenge to the evidence made on behalf of the defendants Jones & Onserud. They were the appellant's [Campbell's) employers, and owed to him the duty of furnishing him with a reasonably safe place in which to work, and the duty of keeping the place reasonably safe as long as they required him to work therein." This duty was nondelegable, and when they intrusted it to another they became responsible for the negligent performance of the duty by that other. If, therefore, Lundin, in uprooting the stump, acted negligently, and the place of work which had been furnished the appellant was thereby rendered dangerous or unsafe, there can be no question of the liability of his principals therefor. His negligence was their negligence, and any negligent act in the line of his duty, which would render him personally responsible to the appellant, would render his principals likewise personally responsible. Thé liability of the respondents Jones & Onserud, therefore, turns on the question whether the act of uprooting the stump was in itself negligent. But as to this we think the evidence made a case for the jury. The position of the stump with reference to the working place of the appellant, the manner in which it was uprooted, the frozen condition of the ground, and the fact that the act did in fact loosen a rock, which rolled down the hill and injured the appellant, were all matters to be considered by the jury in determining the character of the act, and the court should have submitted the question of negligence to them.
We are aware of the contention of the respondents to the effect that Lundin, when he uprooted the stump, was not engaged in the master's work, but was performing the labor of a servant; that he was at that time a fellow servant, and his acts, being those of a fellow servant, would not render the master liable for injuries resulting therefrom, even though it were considered that the acts were negligent. But this reasoning overlooks the fact that the duty of the respondents to oversee the appellant's place of work was a continuing duty, obligatory upon them at all times; that, while the work itself may have been servant's work, the duty to see that its performance did not result in injury to the servants working elsewhere was the master s duty. This duty, as we say, could not be delegated, and if the injury to appellant was caused by its negligent performance the master is liable.
LABOR ORGANIZATIONS-IDENTITY-TRANSFER OF AFFILIATIONEFFECT ON RIGHTS TO ASSOCIATION FUNDS—Shipwrights', Joiners' and Calkers' Association, Local No. 2, of Seattle, v. Mitchell, Supreme Court of Washington, 111 Pacific Reporter, page 780.—The association named sued John McFarland Mitchell and another to recover certain funds claimed by the association, which had been transferred to alleged trustees of an association claiming the property on the ground that by a change of affiliation the association had forfeited its property rights. The association recovered judgment, whereupon Mitchell and his codefendant appealed, the appeal resulting in the judgment of the lower court being affirmed. The opinion in the supreme court was delivered by Chief Justice Rudkin, and is as follows:
The Shipwrights', Joiners' and Calkers' Association was organized in the city of Seattle about 25 years ago. The association is unincorporated, and is composed of numerous craftsmen voluntarily banded together for their mutual benefit and protection, and to provide health and death benefits for members. It is supported wholly by dues collected from members, which have varied from 25 cents to 70 cents per month, per capita, for several years last past. At various times since its organization the association has affiliated with different labor organizations, such as the American Federation of Labor, the Central Labor Council of Seattle, the International Union of Shipwrights, Calkers and Joiners, and the Pacific Coast Maritime Builders' Federation. From 1902 until late in 1906 the association was affiliated with the International Union of Shipwrights, Calkers and Joiners, as Local No. 11, and from the latter date until the present controversy arose, with the Pacific Coast Maritime Builders' Federation, as Local No. 2. While the membership in the association is continually changing by deaths, withdrawals, and removals, and while its affiliations with other organizations have changed from time to time, the association itself remains, and has at all times maintained its entity and separate existence. On the 21st day of August, 1907, the association had in the National Bank of Commerce in Seattle, the sum of $1,138.51, deposited in the name of the Shipwrights', Joiners' and Calkers' Association, Local No. 2. On the latter date, the defendants, who were or had been president and treasurer respectively of the association, withdrew these funds from the bank and turned them over to three persons, claiming to be trustees of the Shipwrights', Joiners' and Calkers' Association, Local No. 11. The present action was instituted by the association, and by a large number of its members in its behalf, to recover the above sum for the benefit of the association. The case was tried before the court without a jury, and from a judgment in favor of the plaintiffs the defendants have appealed.
The case presents questions of fact only. The fundamental error underlying the defense grows out of the erroneous assumption that
the respondent association changed and became a different and separate entity every time it changed its affiliations with other labor unions or organizations. This assumption has no foundation in law or in fact. Regardless of the changes in membership, and the changes in its affiliations, the association itself has remained the same, and the appellants were guilty of gross breach of trust when they took it upon themselves to pay over its funds to a rival organization without warrant or authority.
The judgment of the court below is therefore affirmed.
STRIKE INSURANCE-REPRESENTATIONS--CONSTRUCTION OF POLICY—INDEMNITY-Buffalo Forge Company v. Mutual Security Company, Supreme Court of Errors of Connecticut, 76 Atlantic Reporter, page 995.- This was a case involving the construction of a policy guaranteeing to the Buffalo Forge Co. indemnity for losses caused by strikes. The payment of such indemnity had been demanded and refused, whereupon action was brought in the superior court of New Haven County, and judgment given the plaintiff. The insurance company then appealed, claiming a number of errors in the procedure of the lower court. On review the judgment was affirmed on July 12, 1910, on grounds which appear in the opinion of the court as delivered by Judge Robinson.
The opinion is in part as follows:
We will first consider those reasons of appeal having relation to the claimed breaches of warranties and concealments and misrepresentations of material facts. The nature and novelty of this kind of insurance, and the numerous and interesting questions raised, seem to render it necessary to go somewhat into detail to define properly the attitude which this court has taken with reference to them.
It appears from the record that the plaintiff on or before the 1st day of April, 1906, was a New York corporation and engaged in the manufacture of forges, blowers, engines, etc., at its factory located in Buffalo, N. Y. It also appears that the defendant on and before May 1, 1906, was a Connecticut corporation organized under the law of this State with power to make contracts of insurance to protect, indemnify, and guarantee persons, firms, or corporate bodies engaged in the business of manufacturing against any loss or damage resulting directly or indirectly from any interference with or interruption or suspension of business, or the use and operation of any manufacturing establishment in whole or in part by reason of a strike of the employees. It further appears that on April 9, 1906, the defendant's agent called upon the plaintiff in Buffalo and solicited the insurance in question, and that the application for the policy in suit, containing the “schedule of warranties," was executed April 9, 1906. The policy itself was executed by the defendant, and on May 1, 1906, mailed to the plaintiff, and received by the plaintiff at Buffalo on May 2, 1906. The plaintiff was a member of the Buffalo Foundrymen's Association, a local association affiliated with the National Foundrymen's Association, and was also a member of the so-called