H. C. Bell v. Bean

Foote, C. This is an action brought by the plaintiffs as the assignees of a certain promissory note made and executed by the defendant for the sum of two thousand five hundred dollars, payable to his brother, Philander 0. Bean, or bearer. The cause was tried by the court without a jury, and judgment rendered for the plaintiffs in the sum of $200.14, with interest. From that, and an order refusing the plaintiffs a new trial, this appeal is taken.

The findings show that the defendant was the superintendent and agent of a certain mining corporation engaged in the prosecution of its business in the county of Sierra, in this state; that Philander C. Bean was an [88]employee of that corporation, acting under the orders of the defendant as superintendent aforesaid.

That the defendant had no sort of authority or right from that corporation to make any promissory note which would bind it in any way, nor any authority whatever to settle or compromise any claim or demand for damages, which any of the employees or laborers for that corporation may have sustained by any negligence or other wrongful act of it or its agents.

That before the twenty-second day of February, 1883, the defendant as such agent of the corporation had employed his brother Philander C. Bean, Lewis Nevins, David Lewis, and others to work in the capacity of miners of the same class and about the same business, and that in their employment the defendant exercised ordinary care in their selection as men competent for the duties falling-to them in said business and employment.

That on the twenty-second day of February, 1883, the mine belonging to the corporation was being worked by the hydraulic process, and the water and debris which was thereby discharged passed through an underground bed-rock tunnel; that the tunnel became clogged and obstructed, as it had often before been, so that it would not discharge the water and debris, whereupon Philander 0. Bean, Lewis Nevins, and two Chinamen were sent to clear the tunnel of its obstructions in the ordinary and proper way, and in the same mode in which such clearance had been frequently before that time effected, in which operation there was no danger existing to the workmen if they exercised proper care, and the supply of water let into the tunnel was properly regulated by the men at work therein; that for the purpose of regulating the water as directed by those thus working, the defendant and one David Thomas remained on the outside of the tunnel. The upper end of the tunnel connected with a vertical shaft through