ADAMSON v. ALLENDE

ADAMSON v. ALLENDE
1934 OK 588
62 P.2d 1229
178 Okla. 464
Case Number: 22370
Decided: 10/30/1934
Supreme Court of Oklahoma

ADAMSON
v.
ALLENDE, Adm'r.

Syllabus

¶0 1. Master and Servant--Mine Owner Protected by Certificate of Competency of Fire Boss Against Allegations of General Incompetency.
Under sections 7542 and 7548, C. O. S. 1921, (11159-11165 O. S. 1931) a fire boss employed in and about a coal mine, who holds a certificate of competency from the State Mining Board, is competent and qualified to hold such position, and an employer will be protected by such certificate against allegations of general incompetency, not connected with the particular act complained of.
2. Same--Evidence of Servant's General Reputation for Intemperance not Admissible.
In an action against the master, evidence of a servant's general reputation for intemperance is incompetent where there is no evidence that he was drunk at the time of the accident or that his drinking contributed to the injury.

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Action by J. H. Allende, administrator of estate of Crescenciano Lopez, against Henry Adamson, doing business as Henry Adamson Coal & Mining Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

L. M. Poe, E. J. Lundy, R. E. Morgan, and H. R. Duncan, for plaintiff in error.
O. H. Searcy and J. B. Underwood, for defendant in error.

BUSBY,

¶1 Justice Crescenciano Lopez was, prior to his death, a miner. He was employed by Henry Adamson, doing business as Henry Adamson Coal & Mining Company. On the 9 the day of May, 1928, he was killed in a mine accident. A slab of rock weighing about a tone fell from the roof of the mine, crushed Lopez, and caused his death.

¶2 On the 4th day of March, 1929, this action was commenced in the district court of Tulsa county by one H. Valdez, as administrator of the estate of Crescenciano Lopez, as plaintiff, against Henry Adamson, as defendant. Plaintiff sought to recover the sum of $75,000 damages on the theory that the death of Lopez was the direct proximate result of the asserted negligence on the part of the defendant.

¶3 While the action was pending, there was a change of administrators and J. H. Allende, as administrator, was substituted as party plaintiff.

¶4 Issues were joined by appropriate pleadings and the cause was tried to a jury, resulting in a verdict and judgment in favor of the plaintiff for the sum of $4,750. The case was then brought to this court for review. Our decision reversing and remanding the cause for a new trial is reported under the style of Adamson v. Allende, Administrator, 170 Okl. 154, 38 P. (2d) 917, 918. Our decision became final and the mandate was issued. On March 20, 1935, the case was again tried in the district court resulting in a verdict and judgment in favor of the plaintiff for the sum of $6,000. Motion for new trial was filed and overruled. The case is again presented to this court for review.

¶5 The issues as presented by the pleadings on the second trial were the same as in the first trial. In most respects the facts as developed by the evidence were the same. The theory of the plaintiff's case as delineated by the amended petition is set forth in our former opinion, which also contains a summary of the fact situation presented. We shall not in this opinion reiterate or supplement the matters therein stated except in so far as restatement or the recognition of additional facts is required for a consideration of the legal questions herein presented. We shall refer to the parties, when not otherwise designated, in the order of their appearance before the trial court.

¶6 The first complaint of the defendant is that testimony was "admitted over the objection of defendant with respect to the fire boss which was incompetent, prejudicial and constituted manifest error." Under this his first proposition, the defendant presents more than one phase of the evidence which he asserts to be objectionable. since each of such phases of the evidence raises a different legal question, each must be treated separately.

¶7 We shall first consider a post rem statement made by the fire boss of the mine who was defendant's agent, which statement was admitted in evidence over the objection of the defendant.

¶8 Dave Lozano was the fire boss of the mine. According to the evidence introduced by the plaintiff, he made an inadequate inspection of the slab of rock which fell on Lopez and very short time before the fatal accident. He was in the immediate vicinity of the accident at the time it happened. It took about fifty minutes to remove the body of Lopez from underneath the rock. Some twenty or thirty minutes after the body had been removed, Dave Lozano, according to the plaintiff's evidence, stated, "I didn't know it (referring to the rock) was so bad." There is some confusion in the evidence as to whether this statement was made once to two different witnesses, or twice in the presence of separate witnesses. The defendant in his brief takes the position that only one statement was testified to by plaintiff's witnesses disagreed upon the place. On this point we shall assume defendant's interpretation of the evidence to be correct. Both witnesses fixed the place in close proximity to the mine. The disagreement, if any, in the precise place where the statement was made affected only the weight of their testimony, a matter which was a proper subject of consideration by the jury. The discrepancy in fixing the place where the statement was made has no relation to the competency of the testimony offered and admitted, which question we must determine upon other considerations.

¶9 The statement as attributed to Dave Lozano in the language asserted to have been used by him is susceptible of an inter pretation from which it may be interred that although he did not know the rock was bad enough to fall, he knew from his inspection and prior examination that it was bad. I was, however, a post rem statement of an agent or servant of a party to this litigation. It was admitted in evidence at two stages of the trial, first, as a part of plaintiff's evidence in chief, and, second, as a part of plaintiff's rebuttal after the declarant, Dave Lopano, had taken the stand as a witness for the defendant and testified to a state of facts contrary to the statement made. As a part of the cross-examination, a predicate was properly laid for the introduction of the statement for impeachment purposes to show declarations made out of court contrary to the testimony of the witness given in court.

¶10 The defendant urges and the plaintiff concedes that this statement was too far removed in point of time and by virtue of intervening occurrences to be properly admissible as a spontaneous declaration or a part of the res gestae. The defendant also urges that the declarations of an agent or servant who has no power or authority express or implied to act for his principal in making such declarations are not properly admissible in evidence in an action against that principal by a third person. The plaintiff concedes that as a general proposition this view of the law is correct, but urges that there are certain definite exceptions which should control in this case. It is admitted by the plaintiff that such unauthorized statements are not competent for the purpose of proving primary negligence, but it is urged that they may be introduced for the limited purpose of establishing the agen'ts prior knowledge of a pre-existing dangerous condition, thus imputing such knowledge to the principal. This view of the alw seems to be sustained in the case of Palcine Oil Co. v. Philpot, 144 Okl. 123, 289 P. 281.