State Ex Rel. v. Clymer

I dissent from the reversal of the judgment dismissing the suit against the defendant Clymer and his surety. I think the action of the court in directing a verdict as to all the defendants was correct.

It is apparent that the alleged breach of duty by the district inspector to inspect the mine "at least once every sixty days or oftener," is the essential foundation for the conclusion reached as to Clymer and his surety. It is conceded that the mine was one belonging to Class "B" defined by Code Section 5569. This section defines Class "B" mines, and provides, among other things, that the "chief inspector or a district inspector shall inspect and examine each mine of this class at least once every sixty days, or oftener, and determine if the mine is operated under the restriction governing mines of this class." (Emphasis mine.)

All the evidence relative to an inspection vel non relates to a failure by the district inspector, the defendant Clymer, to make the required inspection, and the only contention in the brief is that it appeared from the undisputed evidence that "the defendant Clymer made no inspection in the mine where the explosion occurred for a period of many months." Assuming that, notwithstanding its negative character, other questions aside, the evidence was sufficient to make a jury question on that point, still there was no evidence to show that the mine had not been inspected by the chief inspector. So, if presumptions are to be resorted to, then it would seem proper to presume that if the district inspector had not made the required inspection, the chief inspector had done so; for I think that evidence that the district inspector did not inspect the mine within the required period did not warrant the conclusion that the chief inspector had not done so. An inspection by the latter would have served the same purpose as an inspection by the former and if made, I think that Clymer and his surety could not be liable in this case.

But apart from this, there are other reasons which I think support the judgment dismissing the suit as to Clymer and his surety.

Conceding that a public officer may be liable for nonfeasance in a proper case, yet before this can be true, the duty alleged to be breached must be one in the performance of which the officer has no discretion. Binkley v. Hughes, 168 Tenn. 86,73 S.W.2d 1111, and cases cited; Fryar v. Hamilton County,160 Tenn. 216, 22 S.W.2d 353; Campbell County v. Ridenour,22 Tenn. App. 250, 120 S.W.2d 1000. There is nothing in the recent case of Tyler v. Obion County, 171 Tenn. 550,106 S.W.2d 548, that modifies this rule.

This action is essentially based upon a breach of the duty or duties imposed by pertinent Code sections and arising out of a discovery of a dangerous condition of a mine.

To have warranted a recovery it would have been necessary to find that these duties were absolute; that they were not performed; and that had they been performed the injuries would not have been sustained. In determining whether the first essential element was present, regard must be had to all the acts required by the statute which it is claimed would have operated to prevent the injuries had they been performed. It is not sufficient in my opinion to have regard to only the first of these acts, namely, the duty to inspect. If, upon inspecting the mine and finding it in a dangerous condition, the subsequent steps required by the statute and which it is claimed would have prevented the injuries, lay within the discretion of the officer, to take or not take "according to his own judgment" (Binkley v. Hughes, supra, 168 Tenn. at page 90, 73 S.W.2d at page 1112), then the action will not lie. See, 43 Am. Jur. 90, 91.

It seems to me that whether a dangerous condition existed within the meaning of the statute was necessarily committed to the judgment of the inspector; for, considering the inherent nature of the operations and the detailed precautions for safety required by the statute, the matter is one about which there might be an honest difference of opinion.

Upon the discovery of a dangerous condition, the Code requires two lines of action on the part of a district inspector. One is that he shall notify the operator with a direction to rectify the condition "within a certain reasonable time" and also notify any person endangered thereby. Code sections 5551, 5554. To have inferred that if Clymer had done this the injuries would have been prevented would, it seems to me, have been necessary to indulge in the presumption that either the operator of the mine would have remedied the condition in time to have prevented the injuries, bearing in mind that he had a reasonable time to do so after notice, or that the plaintiffs, having been served with the notice, would not have entered the mine and subjected themselves to the danger.

But so far as statutory requirements are concerned, neither the duty of the operator to correct the condition nor the duty of the miners to obey the warning notice would have arisen until the required notice was given. To have concluded that an inspection of the mine would have prevented the injuries it would have been necessary to first presume that Clymer would have done his duty in giving the required notice thus giving rise to a duty on the part of the operator and the employees and then indulge in the further presumption either that the operator not only would have performed his duty but would have done so in time to have prevented the injuries or in the presumption that the plaintiffs would have done their duty and stayed out of the mine. It seems to me that to have indulged in either of the last mentioned presumptions would have been to base a presumption upon a presumption in violation of the pertinent rule (Shockley v. Produce Co., 158 Tenn. 148, 161, 11 S.W.2d 900), for, as I say, the conclusion that a duty rested on the part of the operator and the plaintiffs, necessarily would have rested solely on the presumption that Clymer would have given the required notices if he had inspected the mine.

Presumptions are indulged in for the purpose of supplying evidence and if they are inherently speculative they can no more be said to warrant a verdict than can evidence which embodies the same vice. Cf.: Railroad Co. v. Lindamood, 111 Tenn. 457, 78 S.W. 99; Ward v. Ry. Co., 15 Tenn. App. 380.

Again, it seems to me that it would have been to speculate against the facts to have presumed that the notice required by the statutes to be given by the district inspector would have had the desired result. Both the operator and the plaintiffs knew about the dangerous condition of the mine and a notice from the inspector would have added nothing to their knowledge in this respect. To presume that the notice would have been more effective than the actual knowledge which the parties had, it seems to me, would have been to prefer conjecture to facts.

The other line of action required by a district inspector upon discovering a dangerous condition in a mine relates to a report to the chief inspector and consequent action by that official designed to remedy the condition. The Code specifically requires what he shall do upon receipt of such a report. It would serve no purpose to detail these requirements. Any conclusion based upon the theory that if the chief inspector had done any of the things required by the statute would have necessarily postulated the existence of the duty to do such of them as would have prevented the injuries sustained. But such a duty could not arise until the district inspector did his duty in making the report. The majority necessarily holds this in holding that the verdict was properly directed as to the chief inspector and his surety. So in order to reach a verdict against the district inspector upon the theory I am now discussing, it would have been necessary to conclude that a duty on the part of the chief inspector existed and to presume not only that he would have performed his duty but that he would have done so in time to have prevented the injuries. Assuming for the moment that the injuries would have been prevented if the chief inspector had performed his duty, it is necessary to infer the existence of this duty from the presumption that Clymer made the inspection and did his duty in making the required report. This, it seems to me, would have been drawing an inference from a presumption in an impermissible manner. In short, the presumption that if the chief inspector had done his duty the injuries would thereby have been prevented seems to be necessarily to be based upon a prior presumption that if Clymer had inspected the mine he would have done his duty in making the report.

But even if it were permissible to infer the existence I think to have said that the performance of his duty of an active duty on the part of the chief inspector, still would have prevented the injuries would have been to resort to conjecture and speculation.

The case of United States v. Ross, 92 U.S. 281, 23 L. Ed. 707, is a leading one on the question of conjecture and has received the approval of our Supreme Court in Railroad Co. v. Lindamood,111 Tenn. 457, 78 S.W. 99. I think the rule there laid down applicable here. Speculation with respect to the proximate cause of an injury is no more permissible than it is with respect to the amount of the damages. 15 Am. Jur. 410, 413; see, Meador v. R.R., 177 Tenn. 273, 148 S.W.2d 371; Ward v. R.R., 15 Tenn. App. 380. As has been often said, "The law requires an open, visible connection between the principal and evidentiary facts and the deductions from them and does not permit a decision to be made on remote inferences." Railroad Co. v. Lindamood, supra, and cases cited.

Moreover, in my opinion the element of discretion is present in at least some of the essential links in the chain of duties imposed upon the chief inspector which it is necessarily insisted would have prevented the injuries had they been performed.

For reasons that are obvious from what I have said, I think the verdict was properly directed as to the chief inspector Welch but I respectfully dissent from the reasoning of the majority opinion approving that result. As I understand it, it is based essentially upon a lack of knowledge upon the part of Welch of the dangerous condition of the mine. This could not have been the case if Clymer had inspected the mine and made a correct report. In the majority opinion it is first held that the undisputed evidence was sufficient to warrant the conclusion that Clymer made no inspection. Notwithstanding this conclusion it is also held that it is to be presumed that Clymer made the report required by the Code sections following an inspection. If this is a permissible presumption, then it would seem necessarily to follow that in order to hold that the chief inspector had no notice of the dangerous condition of the mine, it would have to be presumed that Clymer made a false report which seems to me to be squarely in the face of the presumption that every official does his duty in the absence of evidence to the contrary. I think it more logical to presume that if in fact Clymer made no inspection, he made no report.

The apparent conflict very well illustrates I think the tricky nature of presumptions and the hazard involved in resorting to them to supply the absence of proof.

I think that the judgment should be affirmed as to all defendants.