Yerington times. [volume] (Yerington, Nev.) 1907-1932, 1918-01-26
COURT PROCEEDINGS.

he Bluestone Mining and Smelling
Co. and Hail. had been set for trial
by jury and the case was taken up
promptly on Tuesday morning. BY
'the usual method in such cases, the
following were selected as Jurors:
Miss Il. l.. Tidd Mrs. Maggie Am
hrose, Mrs. c. B. Harris, Jose Borge,
Philip McGarr. II. W. Sayre. Wins
Farrell, 5. J. Harris, A. W.. Gonder,
Andrew Cline, and Paul Regli.
lhe plaintiff was represented by \.
Crane Miller of Reno, and the Defend
ants byIWarren Hauser, and Brown
K Belford OF Reno.
After the evidence Of the plaintiff
had been offered the defendants, Blue
stone Mining and Smelling Co. NOV
ed through their attorneys Tor non
suit The plaintiff testified that he
had been struck by a rock by Mr.. Hall
and claimed that the employing com
pany were liable, to the amount OF
S300OO. The motion for non suit was
based upon the claim that the com
pany had not employed Mr. Hall for
the purpose Of throwing rocks, that
il was an alteration between Mr.. Hall
and Mr. Ericsson and that the Com
pany had nothing to do with it. As
the plaintiff had testified that lie WAS
not working for the comoany at the
time of the quarrel and for the reas-
on claimed. the Judge allowed the non
suit as to the defendant company Ex-
eeptlon was taken to this ruling by
Attorney Miller and the case pro-
cccGed against Mr. Hall
Decision on Motion for Non Suit
Upon your motion Tor non suit !
wish to say that while do not feel
ii is my place as a trial Judge to DIS
euss the question raised very fully
nor that counsel would care TO hear
me do so. yet | do feel tllat it is pro-
pen to briefly state my view OF this
matter
Certainly we must not confuse the
question as to whether Plaintiff has
cause cf action with the question OF
against s,hom that cause Of action
exists
/ really feel that this is a typical
easc where the court should exercise
IT'S function OF passing upon an alleg-
ed liability as to the Defendants
Truly there may seem to be color
of liability as to the Defendant Com
raov. but for that very reason beng
only color of liability ! think It Is
clearly the duty Of the Court to reheFe
such Defendant from the possibility
of the Jury confusing the issues.
Now the fact that the Defendant
Hall was in the employ OF the Defend
ant Company at the time ot the act
Of is certainly not suinc-
lent to fasten any legal Liability upon
II. nor does the fact tif IT be a tact
that those acts we're the outcome or
the result of a previous diferenCe
,,.rich had taken place between the
same parties while both were so EN-
Dloved. The fact that one had occu-
,ied HIGHER position than the either
does not alter the situation in tins
Ne also face this situation showr
bv quoting from a portion OF Pam
Hfrs own testimony on page rs
O.-You started to go and quit;
A.-Ycs.
O-You fred yourseli'
A.-Sure | fred myself right there.
O.-Before he struck you you quit.
N-Yes. Quit before he struck
me. come for my time before
he struck me.
O-Aud then he struck you'
A.-Yes -. -
p,o;ntifr's own testimony, he was not
cyrn in the Defendant Company EN-
-. ,he time of the alleged IN
iuries. .t:. .,.or.
Now il seems true that this alter,
lion which resulted in the alleged
injuries to Plaintiff did arse out Oh "
previous dispute between the sa,ne
oart;es while both we're in the employ
~ the Company, but that does not
,,sten its liability. and clearly a,
shov-n bv the testimony, the .physicai
acts causing the alleged injuries were
NOT committed "as part OF ms EN-
,lr,-mcnt nor in the Drosecot'on ol
such business" as laid down by the
authoritics and cannot therefore pt
aid TO have been duthpr<Cd IN "a
Comoanv. either expressly or m
Dliediy. and without gong mo '..., @i'
,he authorities cited in detail | thihh
fhat thosc apparently partially sus-
tanning Plaintiffs contention may ~
The language OF Judge Fullerton lo|
paci6c32g "be regarded as exceptions
to the general rule rather than as
establishing a contrasy rule
Nor does this seem t. be a harsh
technical rule such as is SO often
.nmnlained of. On the contrary 10
H. r,,Ie as cOntendcd Tor tY