The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-12-06
FROM HIGHER COURT
Two Opinions Handed Down Yes
terday Morning.
FELLOW SERVANT CASE
BARTCH DIssENTs IN THE
COURTS DECISION.
FELLOW : SERVANT CASE
Ogden City Case Reversed In the
Waterworks Receivership-Ajax
Case Goes Over Until Friday
Hiles Goes to Ogden Today
Short Orders By All the Judges.

Two opinions were handed down by
the supreme court yesterday, the first
being the fellow-servant matter raised
in the lower court, it being the case of
George Dryberg, plaintiff and appel
liant, VS.. the Mercur Gold Mining &
Milling company, defendant and re-
spondent, the lower court being re-
versed on its decision granting a nom
suit and the cause remanded with di-
rections to grant a new trial.
In the original action the plaintiff
sued for damages in consequence of an
injury alleged to have been caused by
negligence on the part of the defend
ant.
1t appears there was a winze in the
mine connecting two tunnels, one
twelve feet above the other, the Wine
being provided with ladder; used by
the miners. One of the side pieces Of
this ladder stood on a natural forma-
ton; the other on waste material. The
latter was removed without the knowl-
edge of the plaintiff, and when he af-
terward made an attempt to descend it,
it gave way, inflicting injuries upon
PLAINTIFF head and leg, from the effects
of which he was twenty days in hos
pital, and compelled to walk with
crutches six months, and still uses a
cane.
The defense was that the injuries
were caused by the negligence of a
miner named Saunders. who was fell
low servant, and therefore it is exempt
from payment of damages.
The supreme court holds it to be the
general rule of law that the servant is
regarded as the agent of the master in
performing the duties of his employ
ment, and that the obligation imposed
by the law upon every member of So
city is to so conduct his business as
not to injure others. With this obliga-
ton upon him the law charges him
with the same responsibility for acts
done by the hand of another as for acts
done by his own hand, and this rule
takes the form of the maxim, "qui
facet per alum, facet per Sc" 1t is a
rule so plain and easy of application
that it could not be made clearer by
Illustration
Quoting the Utah statute, defining
who are not fellow servants, the court
says: From the language used we
must understand the legislature meant
to be definite and peremptory. The Ian
guage is that employees shall not be
considered fellow servants when work.
ing in different grades or departments
of service. In this case it appears
Saunders was a fellow servant, and by
his act the ladder was made unsafe
The court holds that the lower court
erred in granting non-suit, and re-
verses and remands the action, with
costs.
Miner concurs, except as to portion
of the opinion bearing on the construc-
ton of the statute relating to fellow
servants.
Justice Bartch dissents.
Ogden Waterworks Case.
In the case of Ogden City VS. Bear
Lake & River Waterworks & Irriga-
ton company, Bear River Irrigation &
Ogden Waterworks company and
Jarvis & Conklin, a unanimous opinion
was rendered.
This was al appeal by the Bear
River Irrigation & ogden Waterworks
company, from the order of the court
approving the report of Thomas D. Dee
receiver, and allowing certain items
ard ordering them paid out of funds
in his hands.
Plaintiff moved to dismiss the appeal
on the grounds that the order appeal
ed from was not final judgment. This
motion was dismissed by the court.
1t appears from the record Dee was
appointed receiver pendente lite of the
waterworks system of Ogden, Jan. lie
1898. and on fling his report he showed
collections Of water rents to the
amount of 81, 247.07 and disbursements
of s1,266.45 for labor s14S.5S for ma
terial, s90.50 for general expenses. In
addition to this he asked the court to
allow him $3.50 compensation, $219.30 for
an inspector, $3.25 for a stamp and
$14 to the Ogden Standard for adj
vertising. Appellant objected to the
last four items and assigns as error
the direction of the court ordering
them paid.
The court holds that receiver was
appointed on motion of plaintiff and
respondent, over objections of the
appellant, which was wrongfully de-
prived of its property and of the con-
troll of it's business without its con-
sent That it would be inequitable to
require it to pay the costs of receiver
out of funds it earned.
The order appealed from is held to
be erroneous and the cause remanded
with directions to tax expenses in &C
cordance with the opinion and order
them paid.
Bartch and Miner concur.