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acquire any title-to a coal mine thereon pending | law of the case for the district court in the cancellation of his entry, and his obtaining of event of another trial, which learned counan injunction on the strength of his supposed rights before his entry was canceled was as sel for defendants evidently persuaded the much of a fraud on the court's jurisdiction as trial court it was its duty to disregard, dewas his entry a fraud on the government.

fendants correctly say that the decision un[Ed. Note.-For other cases, see Mines and der the authority of Brown v. Tourtelotte, , Minerals, Dec. Dig. § 29.*]

24 Colo. 204, 50 Pac. 195, and our subsequent 7. PUBLIC LANDS ($ 32*)-ENTRYMAN AS EQUI- cases to same effect, does not constitute the TABLE OWNER.

By an entry on land the entryman became law of the case for this court. The point the equitable owner, though it was afterwards made is of no importance here, for Mr. necessary to amend his entry to describe the Justice Gunter's opinion on the review in land before he received a patent.

the Court of Appeals, as we shall presently [Ed. Note. For other cases, see Public Lands, see, correctly declares the law, and, in dis

, Cent. Dig. § 54; Dec. Dig. $ 32.*] 8. APPEAL AND ERBOR ($ 1061*)—HARMLESS fect to it. The evidence on the second, was.

posing of this appeal, we shall give full efERROR-NONSUIT.

. A nonsuit is prejudicial error where the not materially different from that produced evidence as to damages is sufficient to go to the at the first, trial, though in some respects it jury.

[Ed. Note.-For other cases, see Appeal and may be more full and explicit. Holding, as Error, Dec. Dig. $ 1061.*]

we do, that the legal questions were cor

rectly decided on the first review, they are, Appeal from District Court, Gunnison for that reason, to be applied to the facts County; Theron Stevens, Judge.

elicited in the second trial. Action by the Baldwin Star Coal Com

The material facts, on which the decision pany against Michael Quinn and others. rests, are fully and chronologically stated From a judgment for defendants, plaintiff in the opinion of the Court of Appeals to appeals. Reversed.

which we refer. It is sufficient for our presS. D. Crump and Sprigg Shackleford, for ent purpose to say that plaintiff claimed appellant. Brown & Noursek and Dexter T. to be the owner and, through its lessees, was Sapp, for appellees.

in actual possession of and working a coal

mine in Gunnison county. Defendant Quinn, CAMPBELL, J. Action by the obligee in claiming ownership of the same property, an injunction bond against the obligors to brought an

brought an action in

action in the district court recover the damage which it says it suffered against plaintiff company and its lessees, and as a result of the wrongful suing out of obtained a temporary writ of injunction rethe injunction writ. At the, close of plain

At the, close of plain- straining them from operating, working, taktiff's testimony, defendants offering none, ing out, or selling any coal from the prem

, the court granted defendants' motion for a ises. The restraining order was in force for nonsuit and dismissed the action, and the nearly three years, and until plaintiffs in that former is here with its appeal.

action, defendants here, voluntarily dismissThere have been two trials in the district ed it, which carried with it a dissolution of court. At the first one plaintiff recovered a the writ. There being no evidence by dejudgment for $1,500, which, on appeal to the fendants at the second trial, the evidence inCourt of Appeals, was reversed upon the troduced by plaintiff, and all legitimate insole ground that $500 thereof was allowed ferences therefrom, must be taken as true for attorney's fees which plaintiff paid his in determining the ruling on the motion for counsel in the injunction suit, and the evi- nonsuit. Substantially the same evidence, dence failed to disclose how much of it was when before the Court of Appeals, in the incurred in procuring a dissolution of the absence of contrary proof by defendants, injunction, which particular part only was was held sufficient to prove the allegation covered by the bond. It was, of course, of damage which plaintiff claimed it suswrong to include in the allowance what, if tained by the falling of the mine workings anything, plaintiff paid his attorneys for pending the writ. We are in accord with services in connection with the case gen- the Court of Appeals, and are of opinion

, erally. Quinn et al. v. Baldwin Star Coal that the trial court was wrong in taking the

. . Company, 19 Colo. App. 497, 76 Pac. 552. case from the jury upon this issue. Upon

Counsel for defendants, appellees here, in the question of profits we withhold exprestheir brief say: "The same questions raised sion of opinion, as the erroneous ruling on at the first trial and passed upon by the that of damage to the freehold requires a Court of Appeals were presented at the sec- reversal of the judgment. Defendants, howond trial and are before this court for de- ever, while insisting that evidence upon this termination on this appeal.” It thus ap- issue should not have been submitted to the pears that we are asked by counsel for de- jury, say, nevertheless, that if it were othfendants to redetermine the questions of erwise, for other reasons disclosed by the law and fact hitherto determined by the record, plaintiff was not entitled to a reCourt of Appeals. While the decision of covery, and to these we address ourselves. . that tribunal on the former appeal was the Before the rights of any of the parties here attached, the lands in controversy were jurisdiction to permit an amended entry to a part of the public domain-coal lands- be made, and it likewise has jurisdiction to described as the north half of a certain quar-cancel an entry upon the ground of fraud. ter section in Gunnison county. One Spran- It did so in the proceeding referred to, and kle made entry upon this tract under the determined therein that a fraud had been federal laws, and intended to file upon it perpetrated by Quinn upon the government as the north half of the quarter section, and that his original entry was fraudulent. which is its true description, but through His alleged rights were therefore void ab some mistake his filing papers described it initio. He is the one who is now questionas the south half of the section. Quinn, a ing the right of the Land Department to defendant in this action and who procured make the decision which it did in respect to the writ of injunction, after Sprankle had the Sprankle amendment. We agree with made and taken possession under his filing, the statement of the Court of Appeals that made entry upon the same north half. the decision of the Secretary of the Interior Sprankle at once protested Quinn's filing, annulling Quinn's entry, and permitting the but it was allowed by the local land office. amendment of Sprankle's entry, cannot be Afterwards steps were taken by Sprankle, collaterally attacked as is here attempted. in the United States Land Office, to have The Secretary certainly had jurisdiction of Quinn's entry canceled on the ground that both questions, and even if a wrong deciit was fraudulently made, and for leave to sion was made, which we do not say is true, amend his own filing by writing therein the his jurisdiction was unquestioned, and his true description. The controversy finally decision is binding upon this court in the reached the Secretary of the Interior, and,

pending action. As the question has not upon the conveyance to the government of been argued, we do not pause to inquire as the south half of the quarter section, on to the relative rights of the parties under which he had no intention of filing, but

our own public land laws concerning occuwhich was the tract actually described in his original entry, and which had gone to

pying claimants. patent, Sprankle was given leave to change try was canceled he had a

Another position is that until Quinn's enhis filing and entry so as to make it cover this coal mine. This position is wholly un

try was canceled he had a superior title to the north half of the section, which was

tenable. the tract actually entered upon by him, and

Quinn's entry was fraudulent in

its inception. He never acquired any rights which he intended to file upon in the first instance. The decision, also, was that Quinn, ab initio. Obtaining an injunction by Quinn

to the premises. His alleged title was void though he had received a receiver's receipt under his filing upon the north half of the from the district court, upon the strength quarter section, was guilty of a fraud in of a supposed rightful title, was as much a making his entry. His entry and the receiv- fraud upon the jurisdiction of the court as er's receipt were for that reason canceled was his entry in the Land Office a fraud and declared void. When patent to Sprankle upon the United States government. was issued for the north half of the section,

As part of the same contention it is also it was made to relate back to the time of said that no injury was done to the freehis original entry, which antedated the in-hold for which a recovery can be had, beception of the supposed rights of Quinn. cause title to this particularly described Plaintiff company, the remote grantee of tract was not in plaintiff when the injuncSprankle, has whatever rights he acquired tion writ was served. The Court of Appeals to the land in dispute.

thought there was, and upon substantially With this statement of the salient facts, the same evidence in this record we are of we take up the objections to plaintiff's re- the same opinion, and that plaintiff was the covery which defendants have argued.

equitable owner. Questions of law here

All of them may be summed up in the general raised by defendants, appellants here, are statement of defendants' counsel that the resolved against them. The evidence being proceedings in the Land Department by the sufficient upon the question of damages to Secretary of the Interior are void. Their go to the jury, the granting of defendants' contention is that while the Land Depart. motion for a nonsuit was prejudicial error. ment, which is intrusted with the exclusive The judgment is therefore reversed and the management and disposition of public lands, cause remanded, with instructions that if may, in a proper case, permit an entry to be further proceedings be had they be in acamended by allowing the correct description cordance with the views herein expressed. to be inserted, nevertheless, it cannot make

Reversed and remanded. the amended relate back to the time of the original entry. The Land Department has STEELE, C. J., and MUSSER, J., concur. made had not the injunction been issued. It SILKA et al. v. QUINN et al.

is a case where the business was an estab(Supreme Court of Colorado. Dec. 6, 1909.)

lished one. There was an outstanding con

tract for the sale of all coal which plaintiff 1. INJUNCTION ($ 261*)--ACTION FOR WRONG

could mine. The evidence discloses these FUL INJUNCTION-EVIDENCE AS TO DAMAGES.

In an action for a wrongful injunction facts, and that plaintiffs could and would, against the working of a leased coal mine, evi- with reasonable certainty, have mined and dence held to show damages resulting from loss delivered and shipped a given number of tons of profits which might have been made.

[Ed. Note.-For other cases, see Injunction, on which it would have made a profit of a Dec. Dig. 8 261.*]

fixed sum per ton. It was conceded that 2. INJUNCTION ($ 261*)—ACTION FOR WRONG- plaintiffs were prevented by the injunction FUL INJUNCTION-EVIDENCE.

from working the mine. Upon these mateIn an action for a wrongful injunction rial facts there was no controversy, except against the working of a coal mine by lessees, that, according to the indefinite recollection it was er or to admit a receiver's receipt for land, including the mine issued to one of the of a witness for defendant, during the windefendants by the Land Department, but sub-ar in question there was much snow, and on sequently canceled because his entry was fraud- some of the days the railroad was blocked ulent, introduced to induce the jury to believe and shipments could not be made, but the out the writ; and lessees had no right to mine number of the days was not specified. There the coal, and so were not damaged thereby. was no proof that all the coal defendants

[Ed. Note. For other cases, see Injunction, mined would not, or could not, have been deDec. Dig. § 261.*]

livered and transported during the term of 3. INJUNCTION ($261)—DAMAGES RECOVER- their lease. Certainly there was testimony, ABLE FOR WRONGFUL INJUNCTION.

For a wrongful injunction against the work- reasonably certain and definite and precise, ing of a coal mine by lessees, they are entitled to warrant a judgment in favor of plainto recover on the bond such damages as were tiffs. The only thing for the jury to do, if the direct and proximate result of the service of they believed plaintiffs' evidence, was to make the writ. Ed. Note. For other cases, see Injunction,

a mathematical computation in order to deDec. Dig. § 261.*]

termine the amount of profits.

We can account for the verdict only on Appeal from District Court, Gunnison the ground that the jury were misled to plainCounty; Theron Stevens, Judge. Action by Edward Silka and another against over their objection, in admitting in evidence,

tiffs' prejudice by the ruling of the court, Michael Quinn and others. From a judgment at the request of defendants, the receiver's for defendants, plaintiffs appeal. Reversed. receipt for the land, including this coal mine,

Sprigg Shackleford and S. D. Crump, for which was issued to Quinn by the Land Deappellants. Brown & Nourse and Dexter T. partment. It appeared from the defendants' Sapp, for appellees.

answer itself that this receipt was subse

quently canceled by the Land Department CAMPBELL, J. This action was submitted because Quinn's entry was fraudulent. It and argued in connection with No. 5,789, The therefore conferred no rights whatever upon Baldwin & Star Coal Company v. Quinn et him, and it should not have been received in al., 105 Pac. 1101. The judgment for plain- evidence. The only purpose of its introductiffs on the first trial was reversed by the tion, and it undoubtedly accomplished that Court of Appeals for the same reason that object, was to induce the jury to believe that, required a reversal in the other cause. Quinn at the time Quinn sued out the writ of inv. Silka, 19 Colo. App. 507, 76 Pac. 555. The junction which restrained plaintiffs from facts out of which the controversy arose are working the mine, he was the owner of the the same in the two actions, and the evidence property in question, and therefore plaintiffs was substantially the same at both trials. had no right to mine coal, and were not damThis action is by the lessees of the coal com- aged by the granting of the writ which prepany to recover damages sustained by them vented their doing so. For this prejudicial as the result of the service of the writ of error alone the judgment would have to be injunction referred to in the opinion in the reversed. It was determined in the other acother action, which prevented them for sev- tion that plaintiffs' lessor was the equitable eral months from mining, shipping, and sell- owner of the property at the time Quinn sued ing coal, the right to do which was given out the injunction, and that Quinn never had them under the lease from the Baldwin Coal any valid rights in the premises which he Company.

could enforce in court. And we say, as did The case was submitted to the jury which the Court of Appeals in its opinion on the returned a verdict for defendants. It can review of the judgment rendered in this acnot stand. We need not repeat what was tion at the first trial, that these lessees are said in the opinion in the other case as to entitled to recover upon the injunction bond the controlling questions of law. The only damages such as were the direct and proxdamages sought to be recovered here are the imate result of the service of the writ of inprofits which plaintiffs probably might have junction.

The judgment is reversed and the cause , tent on the part of plaintiff or his attorney to remanded, with instructions to the district mislead. court, if further proceedings are had, they servant, Cent. Dig. $ 806; Dec. Dig. $ 252.*]

[Ed. Note.-For other cases, see Master and be in accordance with the views herein ex

4. MASTER AND SERVANT (8 284*)-INJURIES pressed.

TO SERVANT-EMPLOYER'S LIABILITY ACTReversed and remanded.

NOTICE-INTENTION TO MISLEAD-QUESTION

FOR JURY. STEELE, C. J., and MUSSER, J., concur. that no inaccuracy in a notice of a servant's in

Under Act 1893, p. 129, c. 77, providing jury as to the time, place, or cause of the injury shall be fatal, provided it is shown that there was no intention to mislead, and that the party

entitled to notice was not in fact misled, whethMILLER V. CAMP BIRD, Limited.

er an inaccuracy in a notice was intended to mis(Supreme Court of Colorado. Dec. 6, 1909.) | lead, and did in fact mislead is for the jury.

[Ed. Note.-For other cases, see Master and 1. MASTER AND SERVANT (8216*)-INJURIES Servant, Dec. Dig. § 284.*] TO SERVANT-ASSUMED RISK.

Plaintiff, on the day of his injury, was en- 5. MASTER AND SERVANT (8 92*)-INJURIES gaged in helping D. plank an ore chute at de

TO SERVANT - HOSPITAL TREATMENT - SPEfendant's mine; the custom being for D. to nail

CIALISTS. one end of the plank and plaintiff the other. At

Where an employer maintained a hospital, about quitting time D. started to drive a spike at which employés were entitled to treatment for into the plank just beneath where plaintiff stood, titled to such 'reasonable care as the hospital af,

$1 per month, an injured servant was only enbut the spike bounded. D. started another, which bounded in a similar fashion. When D forded, and was not entitled to have his injured started a third, he uttered an angry exclamation, eye treated, at the hospital or elsewhere, under drew back to gain greater force, and attempted his hospital right by a specialist. to drive the spike with a violent blow, which [Ed. Note. For other cases, see Master and struck the spike in such a manner that it was Servant, Cent. Dig. $ 143; Dec. Dig. $ 92.*] driven upwards swiftly, and struck plaintiff in the eye, destroying his sight. At that time Error to District Court, City and County plaintiff's head was about six feet above the of Denver; Frank T. Johnson, Judge. point where D. attempted to drive the spike, and

Action by Charles M. Miller against the it appeared that, though spikes bad previously Camp Bird, Limited. Judgment for defendpeared dangerous. Held, that plaintiff did not ant, and plaintiff brings error. Reversed assume the risk of D.'s negligence in striking and remanded. the spike so forcibly in an angry manner, under the rule that it is only such risks as are obvious B. E. Woodward and Lucius W. Hoyt, for to a person of ordinary intelligence, ability, and plaintiff in error. Thomas, Bryant & Malexperience, and which arise out of the conditions burn, Goudy & Twitchell, and C. H. Redmond, of affairs that surround the employé at the time, that he assumes.

for defendant in error. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. $8 567-573; Dec. Dig. 8 MUSSER, J. The plaintiff in error, who 216.*]

was plaintiff below, began work for the de2. MASTER AND SERVANT_(§ 217*)-INJURIES fendant in the Camp Bird mine on November TO SERVANT-ASSUMED RISK.

Before an employé will be held to have as- 11, 1902. The first day he carried plank into sumed a risk, it must appear that he appreciat- the mine; the next day he was engaged in ed the danger, and voluntarily assumed it. putting timbers overhead in a tunnel; the

[Ed. Note.-For other cases, see Master and third day he sawed plank in the tunnel and Servant, Cent. Dig. § 575; Dec. Dig. § 217.*]

helped to elevate the plank, after being saw3. MASTER AND SERVANT (8252*)-EMPLOY- ed, to a stope; on the fourth day, the 14th ER'S LIABILITY ACT-NOTICE OF INJURY.

Employer's Liability Act 1893, p. 129, c. day of November, he was engaged as a helper 77, provides that before an action can be main with one Dalra in planking an ore chute. tained thereunder, a written notice of the time, The planks were nailed to stulls, which were place, and cause of the injury must be given to about six feet apart. Dalra stood on the the employer within 60 days, and the act of 1893 declares that no such notice shall be deem- stull to which he nailed the lower ends of ed invalid or insufficient solely because of inac- the planks, and the plaintiff stood on the curacy in stating the time, place, or cause of the next stull above, nailing the upper ends of injury, provided it is shown that there was no intention to mislead, and that the party entitled the planks. They had two single jacks and to notice was not in fact misled thereby. Plain- two axes. A single jack is a double-headed tiff, a servant, was injured on November 11, hammer; the heads being flat instead of 1902, and on December 19th his attorney mailed round. The axes were the ordinary axes used a letter to defendant's resident manager, stating the time and place of the injury for which in chopping, except that the handles were compensation was asked, and referring to and about two feet long. Dalra would first nail inclosing another letter from plaintiff's physi- the lower end of a plank, and then the plaincian, reciting that plaintiff was injured in the left eye on November 14, 1902, in Camp Bird tiff would nail the upper end. Dalra used mine; that his left eye was ruptured by the an axe or a single jack alternately. They blow he received, etc. Held, that the physician's thus continued, until about quitting time. letter became a part of the letter of the attor: About that time, Dalra watched the plaintiff ney, and together they constituted a sufficient notice of an intent to sue; there being other drive a nail into the upper end of the plank, evidence clearly showing an absence of any in- land offered to drive one for the plaintiff. •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes The plaintiff assented, and handed Dalra a quence of the negligence of a co-employé. single jack, but Dalra took an axe instead. The act provides that an employer shall be Dalra started a spike into the plank just be liable in damages for injuries which may reneath where plaintiff stood, and attempted to sult to an employé from the carelessness or drive it through the plank into the stull, but negligence of another employé, in the same it bounded. Dalra started another spike, and manner and to the same extent as if the careit bounded. He started a third one, uttered lessness or negligence causing the injury was an angry exclamation, drew back to gain that of the employer. After stating that Dalgreater force, and attempted to drive the ra was engaged with him in constructing an spike with a violent blow; or, as the plaintiff ore chute, and that it was the duty of Dalra described it, "Dalra drew back and used his to provide himself with and to use reasonwhole force.” The spike was struck in such ably proper, safe, and sufficient tools with a manner, and with such violence, that it was ordinary care, the complaint alleges: “That, driven upwards swiftly, and struck the plain- notwithstanding his duty, said Dalra did negtiff in the eye. At that time plaintiff's head ligently omit to provide himself with and to was about six feet above the point where use reasonably proper, safe, and sufficient Dalra attempted to drive the spike. The tools with ordinary care in and about the doplaintiff's eye was very much injured, and ing of said work, and, contrary to his said had to be removed. The planks used were duty, did negligently provide himself with somewhat knotty, although there is no evi- and use improper, unsafe, and insufficient dence that Dalra was attempting to drive tools with lack of ordinary care as to cause the spike through a knot. When Dalra start- a nail, which he was attempting to drive into ed to drive the spike that struck plaintiff, said lumber with an axe, to bound and fly the plaintiff told him "to look out, or you'll therefrom and strike plaintiff in the left eye.” get hurt.” Several times before that, during in the second cause of action, the plaintiff the afternoon, the spikes which Dalra was alleges that, as a part of the contract of emattempting to drive in the lower end of the ployment between himself and defendant, it plank bounded away, and once or twice the was agreed, in consideration of the sum of plaintiff warned Dalra to be careful or he $1 a month, to be deducted by the defendant would hurt himself. While Dalra was driv- from such wages as might from time to time ing the spikes in the lower end of the planks, accrue to plaintiff, that the defendant would his body was between the spikes and the provide the plaintiff with such medical and plaintiff. The axe used by Dalra to drive hospital treatment as might become necessary the spike that struck plaintiff was an old one, or proper in the treatment of any injuries somewhat battered

battered and rounded. When that plaintiff received while so employed, and plaintiff was employed by the defendant, he that during the time of such treatment the was told that the wages would be $3 a day; defendant would keep, care for, and maintain that the company had a hospital at Ouray, the plaintiff ; that the plaintiff was injured near where the mine is located, with first-on the 14th day of November, 1902, while class physicians, and that plaintiff could working for the defendant, by reason wherehave the use of the hospital, with board, bed, of medical and hospital services and treatmedicine, and physicians. The plaintiff's tes- ment became, for a long time, necessary and timony leaves the impression that he was to proper; that the defendant was requested receive those things "in case I got sick with to provide the plaintiff with such medical a fever or something that way.” Later on and hospital services and treatment, which the plaintiff received his pay for the 4 days it failed to do, and likewise failed and rehe had worked in the mine, less $1 deducted fused to board, keep, care for, and maintain for hospital fees. After the accident, plain- plaintiff during the time that medical and tiff was taken to the hospital at Ouray, where hospital services and treatment were needed he remained for 16 days, during which time and proper, and further sets out the expendihe was waited upon by the physician in ture of $232.50 for hospital and medical serycharge, and cared for by the Sisters who con- ices and $14.30 for railroad fare, and $100 ducted the hospital. He then asked the phy- for board, care, and maintenance, all of .

, sician if he had better go to an oculist. The which he seeks to recover. At the close of physician said it would be better, and gave plaintiff's case the defendant asked the court him the names of several oculists in Denver, to direct the jury to return a verdict in its and wrote a note to one of them. The plain- favor as to both causes of action. The motiff went to the oculist to whom the note was tion was granted by the court, and the verdirected. This oculist treated the eye for dict directed. The plaintiff duly excepted to several days, and then caused it to be remov- the direction of the verdict by the court, and ed. The plaintiff paid the oculist about $232.- also duly excepted to the verdict as rendered 50 for services, and he also paid $14.30 for pursuant to the direction. The plaintiff now railroad fare from Ouray to Denver.

seeks to have the action of the court in diPlaintiff brought this action, setting forth recting the verdict reviewed. in his complaint two causes of action. In But two questions, relative to the first, the first he seeks to recover under the em- cause of action, are submitted for consideraployer's liability act of 1901 (Laws 1901, p. tion: First. Did the case, as made by plain

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