(116 A.) failure to insure the property, as provided for in the twelfth paragraph of the lease. The lessee, it seems, failed and refused to comply with the direction contained in the notice of the lessor to it, but remained in possession of the leased premises, and was in possession of the same at the time this suit was instituted on the 15th day of November, 1919. The case was tried by the court sitting as a jury and its verdict was "for the plaintiff for the coal and mining rights appurtenant thereto as in the declaration, and $10,000 damages against the Strathmore Coal Mining Company, and for the defendants, William A. Price and John W. Galloway," who had been sued with the Strathmore Coal Mining Company. In the trial of the case four exceptions were taken to the rulings of the court, one upon the prayers and the others to the court's rulings upon the admission of evidence. The plaintiff asked for eight and the defendants for ten instructions. All the plaintiff's prayers as offered were rejected, though its fifth prayer, after modification by the court, was granted; and of the defendants' prayers only their fifth and twelfth were granted; the others were all refused. The court, however, granted an instruction called by it "the court's statement of the law of the case." There were special exceptions filed to the court's instruction, as well as to the plaintiff's fifth prayer, as modified by the court. A motion was also made by the defendants, at the conclusion of the evidence, to strike from the record the testimony (admitted subject to exceptions) of W. A. Price and Robert Stallings, called as witnesses for the plaintiff, tending to prove the market and govern-. ment prices of coal during the years 1918, 1919, and 1920. The court refused to strike out this testimony, but from such ruling no separate exception was taken, which, it seems, to say the least, should have been done, but the same was embraced in the exception to the rulings upon the prayers, in which exception the defendants excepted to the action of the court in granting the plaintiff's fifth prayer and in rejecting the defendants' first, second, third, fourth, sixth, eighth, ninth, tenth, and eleventh prayers, and in overruling defendants' special exceptions to the "court's statement of the law of the case," and to plaintiff's fifth prayer, and in adopting its own instructions. The defendants' twelfth prayer directed a verdict for the defendants William A. Price and John W. Galloway, and their fifth prayer withdrew from the consideration of the court, sitting as a jury, all alleged breaches of the defendants, or either of them, "to furnish maps or plats of the mines, or to pay the taxes on the property covenanted by the lease." It appears from the record that a suit or action similar to the one here brought was instituted by the appellee against the appellant, in the United States District Court for the district of Maryland, to again acquire the property rights leased by it to the assignors of the defendant, and, as we understand, because of the default of the defendant therein, the appellant here, in not performing the stipulations and covenants contained in said lease that were to be performed by it, as assignee of Price and Galloway, under the terms of said lease, and that such proceeding terminated adversely to the appellee here, and it was conceded in the trial of this case in the court below that by said decision the appellee was estopped in these proceedings from claiming any defaults occurring earlier than December, 1917. The said notice, as it appears from the record, was served upon or received by the president of the Strathmore Coal Mining Company on September 9, 1918. [1] The first communication between the parties to this suit, so far as the record discloses, after the decision of the case in the United States District Court, was in the form of a letter dated the 7th day of February, 1918, from Samuel M. Llera, president of the Strathmore Coal Mining Company, to G. S. Rees, treasurer of the Bayard Coal & Coke Company, Washington, D. C., offered through Rees, while upon the stand as a witness for the company. In this letter was inclosed a map of the mine, showing its condition when taken over by the Strathmore Coal Mining Company, and also a survey showing the operation of the mine in 1917, and in this letter the appellee company was asked to send to the appellant the amount of all taxes owing upon the leased property that were payable by it under the terms of the lease. A reply was made to this letter on February 20th, in which Rees asked for a complete map of the mines in accordance with the terms of the lease to Price and Galloway, but nothing was said in reply to Llera's request for information as to the amount of taxes owing by his company. The next letter was from Llera to Rees, dated February 23d, inclosing check for $57.35 royalty 1,147 tons of coal mined in January. Rees acknowledged the receipt of the check by a letter dated February 28th, in which he said: "We wish you would look at section 4 of the lease which you claim title, and please send statement as required under the said section." The statement mentioned in said section, and the one to which the writer referred, was the one from the railroad company showing amount of coal shipped over its road for the time named in appellant's letter. On March 28th Llera wrote Rees, inclosing him check for $62.04, of which amount "Please find check for Strathmore coal royalty, also Cottage Steel mine. Will mail statement by next mail; have been delayed in getting statement at Cottage Steel on account of some coal that was sold through the tram at Bayard." In this letter there were, as Rees testified three checks; one of these "related to prop $58.28 was for royalties for the month of February, and balance, $3.76, on January operations, which was not included in former check as the error in the amount owing for that month was discovered after the check had been sent therefor. In this letter Llera gave the total number of tons mined, and with his letter inclosed two statements, one for each of the months of January and Feb-erty on the West Virginia side," and that ruary, 1918, showing the amount, as claimed by his company, shipped by the railroad, giving in separate columns car number, initial of car, and number of tons, as well as the amount used in production, but there still was no statement from the railroad company. This was the last communication until October 26, 1918, when Llera delivered in person to Rees a letter of that date, which is as follows: "Gentlemen: We hand you herewith monthly statements of coal mined by this company from the Strathmore mine, which we hold under our lease with you, our property. "Recapitulating the monthly statements which are furnished herewith, would state that the tonnage mined is as follows, including boiler tonnage: January, 1219.77 tons mined, royalty 5¢ per ton... February, 1162.55 tons mined, royalty 5¢ per March, 1501.48 tons mined, royalty 5¢ per ton ton Less amount paid you Feb. 25, 1918.. $60 98 50 80 53 23 54 09 $480 47 With the above letter were statements for the months named from January to September, both inclusive, giving the date of shipment, car number, its initial, and the number of tons therein, but without any statement of same from the railroad company. Rees denied the receipt of the check for $114.45, mentioned in said letter, though Price said he admitted to him that he had received it. This was the last of the correspondence between Llera and Rees, so far as the record discloses, but on March 6, 1920, Price wrote "we cashed." The others were returned, but before returning them photographic copies were made by the appellee, and these were offered in evidence, one for $21.30 and the other $105.15. On September 27, 1920, Rees received a statement, sworn to by Price, to which were attached two checks signed by Price as treasurer of the Strathmore Coal Mining Company, one for $380, dated September 11, 1920, and the other for $132.50, which does were offered in evidence by the appellee. not appear to be dated at all. These checks were offered in evidence by the appellee. This statement was headed "Strathmore Mine No. 1," purporting to give the number of tons supposedly taken from that mine in each of the months from December to August, both inclusive, with a computation of the amount of royalty due thereon. Rees in his testimony stated that no statements were ever received by the appellee and no payments were ever tendered to it other than the statements and payments above mentioned. The appellant is not only charged with default in the nonpayment of the royalties at the times stipulated in the lease for the payment of the same, which by the terms of the lease gave to the plaintiff the right to enter and take possession of the leased property, but it is further charged with the breach of the covenant contained in the lease, to exhibit to the lessor a copy of the statement from the agent of the railroad company showing the number of pounds of coal shipped upon its road by the said lessees during the preceding month and taken from the leased premises. The appellee was obliged to rely largely upon the appellant in ascertaining the amount of coal mined by it, and, as the amount of rental for the leased mines depended upon the amount of coal taken therefrom, this provision of the lease was of great importance to the appellee, and it was fully warranted in demanding that the appellant should comply with it, and this the appellee did so early as February 25, 1918, in its letter of that date. Nowhere in the correspondence is it claimed by the appellant that the statements sent were a compliance with the covenant to exhibit statements from the railroad company; and it is not claimed, except by Price, that any statements other than those appearing in the record were ever exhibited to the appellee, and he contents himself by simply stating that others were sent. It may have 116 A.) obtaining such statements because of the act of Price, as testified to by some of the witnesses of the appellee, in mixing the coal taken from the leased mine with that taken from another mine before or at the time it was loaded upon the cars of the railroad company; but, if this be true, the appellant was not released thereby from its covenantone, as we have said, so important to the appellee. The evidence we have stated tending to show the default of the appellant entitling the appellee to re-enter and take possession of the leased premises was, in our opinion, legally sufficient to go to the jury; consequently, we find no errors in the court's rulings on the defendant's first, second, third, fourth, sixth, and seventh prayers asking that a verdict be directed for the defendant. [2] The plaintiff's fifth prayer, which is upon the question of damages, states: "As a matter of law, that if it [the court] shall find the plaintiff had a right to re-enter the lands described in the declaration because of a default, but that the Strathmore Coal Mining Company thereafter remained in possession, negligently disregarding the fact that the lease had terminated, if the court shall so find, then the measure of damages is the value of all coal mined and carried away by such defendant aft-. er the expiration of 30 days from the defendant's receipt of the notice to quit, up to and until the day of trial, estimated either by finding the price at which it would sell when brought up to the surface, and deducting the mere cost of bringing it there from the place where it was dug, or by finding its worth before it was removed from the place where it was dug, after it had been severed from the freehold." The statute of this state (article 75, § 71), provides that the plaintiff in an ejectment case "shall recover as damages the mesne profits and damages sustained by him and caused by the ejectment and detention of the premises": and in Gibbs v. Didier, 125 Md. 486, 94 Atl. 100, Ann. Cas. 1916E, 833, this court held that the plaintiff could not claim rent or other profits in an action of ejectment and then, upon failure to recover them, thereafter recover such damages in another suit. rights of the plaintiff to recover therefor be equal to those of a plaintiff in an action of trespass? If this be not so, a lessee can make default, pay only the royalty, and sell the coal and not be required to account to the owner therefor, although his lands are wrongfully withheld from him. There can be, we think, no doubt as to the plaintiff's right to recover damages therefor in cases of ejectment as much so as in trespass cases. Article 75, § 92, provides that "In the absence of fraud, negligence or willful trespass, the measure of damages for the wrongful working and abstracting of another's minerals is the value of the minerals in their native state, before severance, to the person from whose property they were taken at the time of the taking; but if one furtively or in bad faith works and abstracts minerals from the land of another, the party so offending may be charged with the whole value of the minerals taken and allowed no deduction in respect of his labor and expenses in getting them." In Mt. Savage G. Ck. Co. v. Monohan, 132 Md. 664, 104 Atl. 483, this court speaking through Chief Judge Boyd, said, in construing said statute: "The measure of damages fixed by the first paragraph does not apply, if the party taking the coal was negligent, because it is only in the absence of fraud, negligence, or willful trespass that the rule applies. If 'negligence,' as used in the first paragraph, is not embraced in one of the terms 'furtively or in bad faith,' as used in the second paragraph (and it would scarcely be contended that it is), then there is no part of the statute applicable to a case where there was negligence, and if it is included, then the appellant cannot complain of the measure of damages allowed, as it even got the benefit of the deduction for the cost of removing the coal to the mouth of the mines. But it is clear that the statute does not change the rule when the minerals are taken as the result of the negligence of the defendant." Therefore, as the statute does not apply to this case, the measurement of damages applicable thereto is that which existed prior to the passage of the act, which is clearly stated in Barton Coal Co. v. Cox, 39 Md. 1, 17 Am. Rep. 525; Franklin Coal Co. v. McMillan, 49 Md. 549, 33 Am. Rep. 280; and Blaen Avon Coal Co. v. McCulloh, 59 Md. 403, 43 Am. Rep. 560, that the plain tiff is entitled in cases of this character It would therefore seem that if the plain tiff in an ejectment suit is confined to damages recovered therein, and cannot thereafter in another action sue for and recover those damages which he had suffered but had failed to recover in such ejectment suit, "to recover such sum per ton as the jury may then his right to recover for damages suffered find the said coal so mined was worth first sevby him caused by the ejectment and deten-ered from its native bed, and before it was tion of the premises should be coextensive put upon mine cars, without deducting the expense of severing said coal from its native with his right to recover in trespass cases. bed." For example, if the plaintiff in this case was entitled to the property by reason of the default of the defendant, and the same is wrongfully withheld from it, why should not the liability of the defendant be as great as in an action of trespass, and the And this is the measurement of damages stated in the plaintiff's fifth prayer. The defendant, however, filed special exceptions to this prayer, in one of which it is alleged that There was "no evidence as to the price at which the coal would sell when brought to the surface at the time it was dug and the cost of bringing it to the surface from the place where it was dug, and because there is no evidence as to the market value of the coal before it was removed from the place where it was dug, after it had been severed from the freehold." The only evidence found in the record bearing upon this special exception is that of William A. Price and Robert Stallings. Price, when asked the market price of coal at Cumberland, the nearest market to the mine, of the quality of that mined at Strathmore, in the month of January, said he would have to refer to his notes; that he could not answer the question without them; that the price of coal had varied so that he could not carry it in his mind. He was asked the same question as to other months, and his answer was practically the same. A part of the time the price of coal was fixed by the government at $2.75 on the cars at the mines, but at times he could not get so much as that, and when asked the cost of conveying the coal after it was dug from the pit to the car, he answered: "That would be different every day. "Q. What would it be? A. $1 up to $2." He, however, kept no account of the cost in getting the coal from the mine to the tipple and then to the cars. It was an estimate only of what it would cost, and it was hard to make an estimate in developing an old mine. Mr. Stallings testified that the price of coal during the period involved in this suit varied greatly, and at times the government price of $2.75 was effective, and others it was not, and at times it got so low as $1.75 per ton. He was asked if he knew or could approximate the cost of mining and putting the coal on the cars at Strathmore mines; he replied that he did not know. [3] The burden was upon the plaintiff to prove the value of the coal at the place of its severance after it was severed from the freehold. This could be done by evidence of its value upon the surface of the mine, less the cost of removal thereto from the place it was severed. [4] The evidence offered, we think, is entirely too vague and indefinite to prove the essential facts imposed upon the plaintiff under the rule. There was no evidence given at all, either by Price or Stallings, as to the value of the coal when severed, and their evidence as to the value of the coal upon the surface was too vague and indefinite to establish a value at such place, from which the cost of its removal from the place of its severance is to be deducted in ascertaining its value at the point of severance, if it should be held that there was evidence legally sufficient to go to the jury tending to show the costs of such removal; therefore the special exception should have been granted. [5] The other special exception to the prayer that there was no evidence that the appellant company remained "in possession negligently, after the alleged termination of the lease," was properly overruled. [6] The withholding of the leased property from the lessor, under the facts and circumstances of the case, was evidence tending to show that the appellant remained in possession negligently after the alleged termination of the lease. "The court's statement of the law of the case," in our opinion, correctly presents the law applicable thereto, and the special exceptions were properly overruled. The defendant's ninth, tenth, and eleventh prayers being in conflict with the court's instructions, they were properly rejected. The court's action upon the first exception relating to evidence was, we think, proper, as we fail the lot therein named, which was not includto see in what way the inquiry made as to ed in the lease, bears upon the issues of the case; and the same is true of the two succeeding exceptions. Because of the court's error in overruling the special exception above mentioned to the plaintiff's fifth prayer, the judgment of the court below will be reversed. Judgment reversed, and a new trial awarded, with costs to the appellant. Order of Court Modifying Opinion. The motion of the appellee filed July 25, 1921, and the answer of the appellant to the order of this court filed October 28, 1921, being read and considered, it is ordered this 2d day of December, 1921, by the Court of Appeals of Maryland, that the judgment of this court as announced the 29th day of June, 1921, be and is hereby modified, so that the part of the judgment of the lower court for the plaintiff for the coal and mining rights appurtenant thereto as claimed in the declaration be and is hereby affirmed, and that the part of the judgment for $10,000 damages against the Strathmore Coal Mining Company be and is hereby reversed, and the cause remanded for a new trial as to the said damages only. (44 R. I. 226) (116 A.) GOLDEN v. R. L. GREENE PAPER CO. (No. 5379.) SWEETLAND, C. J. This is an action of trespass on the case to recover damages for personal injuries alleged to have resulted (Supreme Court of Rhode Island. April 12, from the negligence of the defendant's serv 1922.) 1. Municipal corporations 706 (5)-Evidence held to support allegations as to negligence in transporting goods on truck as proximate cause of injury. Evidence of negligence in transporting a roll of paper along the public streets so insecurely placed on a truck that it was likely to fall held sufficient to support allegations that the cause of an injury to a pedestrian was the negligent transportation of the paper, though there was evidence of lack of care in loading the truck; such negligence not being the proximate cause of the injury. 2. Pleading 433 (3)-Indefinite allegations cured by verdict in absence of demurrer or other objection for uncertainty. Indefiniteness in allegations of the declaration is cured by a verdict for plaintiff, in the absence of demurrer or other objection for uncertainty. 3. Municipal corporations 706(1)-Allegations of negligence in transportation of goods through streets held sufficiently certain. In an action for injuries to a pedestrian struck by a roll of corrugated paper which fell from a truck entering an alley, allegations that defendant so negligently transported the paper that the roll fell off and struck plaintiff while walking along the sidewalk in the exercise of due care stated a case with reasonable certainty; the merchandise and its transportation being within defendant's exclusive control and knowledge, and the accident being unusual when due care is used. aggravated by injuries. ant. The case was tried before a justice of the superior court, sitting with a jury, and resulted in a verdict for the plaintiff in the sum of $8,500. The defendant duly filed its motion for new trial. On this motion said justice decided that the damages awarded were excessive, and that he would grant the motion unless the plaintiff should remit all motion unless the plaintiff should remit all of said verdict in excess of $6,000. The case is before us upon the exception of each party to the decision of said justice. It appears that the plaintiff, while walking along the sidewalk on Broad street, in Providence, on the day when she received the injuries of which she complains, stopped at what is known as Jencks alley to permit a delivery truck of the defendant to cross the sidewalk and enter said alley. While said truck was crossing the sidewalk a roll of corrugated paper fell from the side of the truck and struck the plaintiff. Said roll was 36 inches long, 25 inches in diameter, and weighed 70 pounds. It further appears that the top of the sideboards of the truck was 14 inches above its floor, and that attached to the top of each sideboard was a so-called "bill," or shelf, 9 inches wide, extending outward and slightly upward from the top of the sideboard. At the time in question the body of said truck, between the sideboards, was loaded with packages and rolls of paper, and 4 rolls of corrugated paper were placed upon the "bill" on either side of the truck. Each roll stood on end, leaning slightly inward against the merchandise in the body of the truck. As the bill was 9 inches wide, and each roll was 25 inches in diameter, a con Damages may be awarded for conditions so aggravated by injuries complained of as to siderable portion of the bottom of each roll render an operation necessary. Exceptions from Superior Court, Providence and Bristol Counties; John Doran, Judge. Action by Carrie Golden against the R. L. Greene Paper Company. Verdict for plaintiff, and from a decision to grant defendant's motion for new trial unless plaintiff filed a remittitur, both parties bring exceptions. overhung the outer edge of the "bill." When the truck was loaded, each roll standing on the bill was secured solely by a rope attached to a hook in the body of the truck under the roll, which rope passed up and over the top of the roll, thence across the truck, and over the top of the roll standing on the bill on the other side of the truck and thence downward, where it was drawn taut and at tached to another hook in the body of the Plaintiff's exception overruled, defendant's exceptions sustained in part and overruled in truck. The plan of this method was to separt, and case remitted for new trial unless cure each roll by pressing and holding it firmplaintiff files remittitur, with direction, ifly against the merchandise in the body of the remittitur is filed, to enter judgment for plaintiff. truck. It is apparent that any shifting of the merchandise in the body of the truck would tend to slacken the rope over the top Sol S. Bromson and James J. Nolan, both of the two rolls opposite each other; that of Providence, for plaintiff. Ralph T. Barnefield, Pirce & Sherwood, and Sidney Clifford, all of Providence, for defendant. the jar of the truck in passing over inequal- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |