Mangan v. Broderick and Bascom Rope Company

• Decision Date: 18 October 1965
• Docket Number: No. 14738.,14738.
• Parties: Eugene MANGAN, Plaintiff-Appellant, v. BRODERICK AND BASCOM ROPE COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

351 F.2d 24 (1965)

Eugene MANGAN, Plaintiff-Appellant, v. BRODERICK AND BASCOM ROPE COMPANY, Defendant-Appellee.

No. 14738.

United States Court of Appeals Seventh Circuit.

July 27, 1965.

Rehearing Denied October 18, 1965.

COPYRIGHT MATERIAL OMITTED

James A. Dooley, Chicago, Ill., for plaintiff-appellant.

Reese Hubbard, Alvin G. Hubbard, Chicago, Ill., for defendant-appellee.

Before HASTINGS, Chief Judge, DUFFY, Circuit Judge, and MERCER, District Judge.

MERCER, District Judge.

Plaintiff, Eugene Mangan, filed his suit against the defendant for damages for personal injury. He prosecutes this appeal to review a judgment entered by the court below upon a verdict rendered by a jury finding the issues for the defendant. The action of the trial judge in refusing to permit plaintiff to read certain requests for admissions to the jury and other allegations of trial error are asserted as the basis for plaintiff's contention that the judgment should be reversed and the cause remanded to the court below for a new trial.

On and prior to December 1, 1960, plaintiff was an employee of Schweitzer & Company which was then engaged in the construction of a concourse building at O'Hare Field. For some five weeks prior to the occurrence which gave rise to this suit the crew of which plaintiff was a part had been engaged in the installation of precast concrete panels used in the construction of the walls of the building. The panels, which weighed from 3000 to 3500 pounds each, were lifted by a crane to the second floor of the building where they were fitted into bays in the building wall. Each bay held four panels. Limited clearance within the bays required that a sling method be used to install the number 4 panel in each bay, although other means were used to lift the first 3 panels into place. A sling was fashioned from wire rope, or cable, wrapped around the concrete panel and wood softeners used to guard the panel from damage by the cable. In each such operation, the sling was rigged securely around a panel and the hook on the crane was fastened on the outside of the wire sling thus formed. The panel would then be lifted into the air in a vertical position to a height of about 4 or 5 feet. At that point, the ground men on the project attached a manila guide line to the cable which men working on the second floor manipulated as the panel was raised to guide the panel into place.

Schweitzer used one-quarter inch cable as slings on the number 4 panels. Each cable could be used for approximately 6 to 8 times before it was worn to such extent that replacement was necessary. At the start of the project one-quarter inch 6 × 19 cable was used for the sling.¹ About the middle of November, 1960, Schweitzer's supervisory employees decided to order some one-quarter inch 6 × 37 cable because they felt its greater flexibility would give more ease of handling and better wearing quality. The job superintendent directed Schweitzer's timekeeper to order some 6 × 37 cable from the defendant. That order was placed by phone to defendant's warehouse on November 14, 1960, for 50 feet of 6 × 37 cable. A sales trainee at defendant's warehouse obtained a coil of cable from the warehouse and delivered it to the "little shed" at the concourse project. Schweitzer's timekeeper receipted for the delivery.

On December 1, 1960, the job superintendent sent the plaintiff to the iron worker's shanty where cable was stored to obtain some cable to replace the one being used for the sling. Plaintiff testified that he found a coil of new cable hanging in the shanty and that it was the only cable that was in the shanty which had not been used. The cable was then made into a sling around a number 4 panel in the manner above described, and the crane operator lifted the panel to a height of about five feet to the proper position for attachment of the guide lines. While plaintiff and another employee were tying the ends of the guide line to the sling, the cable broke and the panel fell striking the plaintiff and injuring him seriously and permanently.

Plaintiff's foreman arrived at the scene before plaintiff was removed to the hospital and saw the sling cable lying on the ground broken. Thereafter, he and Schweitzer's job supervisor examined the cable and upon counting the strands discovered that it was 6 × 7 cable. Schweitzer's supervisory employees testified that no one-quarter inch 6 × 7 cable had ever been ordered by them for the O'Hare project, and that no cable of such composition was ever used on the project. Subsequent laboratory tests of the broken cable showed it to be one-quarter inch in diameter and consisting of six strands, with each strand made up of seven wires wound around a hemp center. The test revealed that the breaking strength of the cable was about 2330 pounds.

Schweitzer's job superintendent testified that he was familiar with the cable stored in the ironworker's shanty; that 50 feet of 6 × 19 quarter-inch cable had been received from another supplier on November 3, 1960, and that all such cable had been used prior to December 1, 1960; that for a period of some 10 days prior to December 1 there was only one piece of new and unused cable in the shanty; and that the cable was in a coil the way it had been received, and that the coil was 50 feet in length. He further testified that he had examined all cable on the concourse job on December 2, 1960, and that he could find no 6 × 37 cable on the job, either new or used.

Plaintiff's complaint charged that his injury came as a proximate result of defendant's negligence, among other things, in supplying a cable of inferior strength and different from the one that had been ordered, in selling a cable which was unfit for the purpose for which it was ordered, and in failing to warn plaintiff that the cable was unfit for the purpose for which it was intended.

We turn first to the alleged error in the court's refusal to permit plaintiff's requests for admissions to be read to the jury. On August 23, 1962, plaintiff filed 14 requests for admissions of fact which, so far as here pertinent, requested admissions that Schweitzer had ordered 6 × 37 wire rope from defendant, that wire rope was delivered by the defendant to Schweitzer pursuant to that order prior to December 1, 1960, and that "the wire rope sent Wm. E. Schweitzer and Co. was composed of 6 strands with seven wires in each, or 6 × 7 wire rope". The requests above summarized were requests numbered 1 and 4. The request above quoted was request number 5. Thereafter on September 4, 1962, defendant filed a motion praying that it be relieved from answering plaintiff's requests numbered 11, 12, 13 and 14, and that an order be entered extending the time within which defendant could answer the balance of the requests for admissions. On September 10, 1962, defendant moved for a hearing on its objections to requests numbered 11 to 14. Judge Hoffman entered an order sustaining defendant's objections to those requests. Defendant did not seek or obtain a ruling on that portion of its motion requesting an extension of time to answer the balance of the admissions, and defendant did not, in fact, at any time deny or otherwise answer plaintiff's requests numbered 1 through 10. That was the situation prevailing at the time when the cause went to trial.

At the outset of the trial, plaintiff sought to read his requests numbered 1 through 10 to the jury. Upon the representation of defendant's counsel that objections to all requests filed by the plaintiff had been sustained, the court asked plaintiff to pass the matter of the admissions until the record could be checked. During the course of the trial, several other discussions between court and counsel were had relative to use of those requests. Ultimately, the trial judge indicated his opinion that defendant's failure to respond to the requests would be tantamount to admission of the facts therein stated, but that plaintiff had abandoned his requests by his subsequent filing of interrogatories addressed to the same subject matter.

That ruling was error. A party's failure to file a verified response to requests for admissions under Rule 36 admits the truth of all matters therein stated, Water Hammer Arrester Corp. v. Tower, 7 Cir., 171 F.2d 877, 879, Adventures in Good Eating v. Best Places to Eat, 7 Cir., 131 F.2d 809, O'Campo v. Hardisty, 9 Cir., 262 F.2d 621, and unanswered requests are not abandoned by the subsequent filing of interrogatories addressed to the same subject. Woods v. Robb, 5 Cir., 171 F.2d 539. Where no response is made to requests for admissions, the party making the requests is entitled to rely thereupon and no further proof is required to be made of the facts thus admitted. Water Hammer Arrester Corp. v. Tower, supra.

That error alone would require reversal of this judgment. Plaintiff advised the court below that his trial preparation was made on the theory that these unanswered requests would stand admitted. The exclusion of those facts from evidence may well have made the difference between a verdict for the plaintiff and the verdict rendered.

There is absolutely no merit to defendant's contention that the request was deficient because it did not fix a time within which defendant's response thereto was required. Defendant did not object to the sufficiency of the requests in the trial court. It cannot now object to the form of the request. Rule 36 places the burden upon a party to whom requests are directed to take some affirmative action, either by response to the requests or by objecting thereto if any ground he has. Water Hammer Arrester Corp. v. Tower, supra. Having done nothing as to requests 1 to 10, inclusive, defendant must bear the consequences of their standing admitted.

Reversal of the judgment is also required because evidence of workmen's compensation benefits was injected into the case. Immediately prior to the commencement of the trial, the trial judge expressed...