Vesel v. Jardine Mining Co. , 116 Mont. 56 ( 1944 )

I dissent. While I do not care to write an extended opinion, I feel bound to indicate that my dissent goes to the intimation that there may be a liability upon the facts disclosed by the record. I agree that the amount of the award indicates the presence of passion and prejudice, but I cannot assent to any conclusion that would indicate that the evidence as it was adduced was sufficient to support a verdict or a judgment in any amount in favor of plaintiff. I would point out briefly my reasons.

As I read and understand the opinion of this court upon the former appeal of this case (Vesel v. Jardine Mining Co.,110 Mont. 82, 100 P.2d 75, 76, 127 A.L.R. 1093), the court held that the complaint stated a cause of action, the substance of which was that plaintiff contended that defendant had "assumed to render medical aid and attention to" him, and that defendant was negligent in selecting and employing an unskilled and incompetent person to care for him. In my opinion plaintiff upon the trial following the reversal by this court upon the former appeal failed to meet the burden which was upon him in at least two respects. The first one of these is that the evidence fails to show that defendant had assumed to render medical aid and attention to plaintiff, and the second one is that even though it had shown that an individual, claimed by plaintiff to have been superintendent of defendant company, had assumed to render such aid and attention, there is no evidence from which it can be found he had authority to make such engagement for defendant company in the light of the fact that defendant company carried compensation insurance to which plaintiff had assented.

If plaintiff had brought his action against the man claimed by him to have been the superintendent premised upon fraud resulting in a loss of his rights to make claim under the compensation insurance he might have been entitled to recover.

In my opinion, at least as far as the record in this case goes, the defendant company was not liable and the cause should be remanded with directions to enter judgment in favor of defendant company and against plaintiff.