Balaklala Consol. Copper Co. v. Reardon

• Decision Date: 15 February 1915
• Docket Number: 2420.
• Citation: 220 F. 584
• Parties: BALAKLALA CONSOL. COPPER CO. v. REARDON.
• Court: U.S. Court of Appeals — Ninth Circuit

220 F. 584

BALAKLALA CONSOL. COPPER CO. v. REARDON.

No. 2420.

United States Court of Appeals, Ninth Circuit.

February 15, 1915

On trial of two actions together, refusal of instruction that in one of the actions there could be no recovery for the incompetence of an inspector held not error, though it might properly have been given.

Frank Whitsett, the deceased, and his brother, Fred Whitsett, were employed to operate a Burleigh drill in the defendant's mine. The deceased was an experienced miner, and was known as a machine man. His brother was a machine man's helper, or chuck tender. The drill was operated by compressed air, and was used to drill holes in the rock or ore, preparatory to blasting. The brothers exchanged work from time to time, and alternately worked as drill man and chuck tender. At the time of the accident Fred was operating the drill, and the deceased was chuck tender. It was the practice to drill about a dozen holes in the face of the drift, four near the top four in the middle, and four near the bottom. The bottom four were called 'lifters.' When the holes were finished they were filled with dynamite, and there was a cap and fuse for each hole. As the men went off shift, the fuses were lighted, and the rock was blasted out. On the night of the accident, when the Whitsett brothers went to work in one of the drifts, the holes had all been drilled by the preceding shift, except three of the lifters, and one of those had been partly drilled. They began to work on the unfinished hole and while they were drilling it the drill struck and exploded a missed shot, which killed they deceased and seriously injured his brother. Separate actions were brought by the administrator of Frank Whitsett and by Fred Whitsett. The cases were joined for trial before the same jury. The plaintiff obtained a verdict against the defendant in the sum of $3,500.

The complaint alleged failure and neglect of the defendant to exercise ordinary care in providing and maintaining a safe, suitable, and proper place for the deceased to perform his labor, and it alleged that the presence of the unexploded blast was unknown to the deceased, but could have been discovered and known by the defendant in the use and exercise of ordinary care and diligence. The answer denied that the defendant could have discovered or known of the missed shot. The main issue before the court below was whether or not the accident was proximately caused by negligence on the part of the defendant. The defendant insisted that there was no duty on its part to furnish the deceased with a safe place in which to work, and that the duty of looking for and detecting a missed shot rested on the deceased, and further contended that the missed shot was so concealed that it was impossible, by ordinary or practicable methods, to discover it.

C. H. Wilson, of San Francisco, Cal., for plaintiff in error.

William M. Cannon, of San Francisco, Cal., and C. S. Jackson, of Roseburg, Or., for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

Error is assigned to a statement made by counsel for the plaintiff, in the presence of the jury, to the effect that the defendant had indemnity insurance against the accident, and that the insurance company was defending the action through its own counsel. On the examination of one of the talesmen, on his voir dire, by Mr. Cannon, counsel for the plaintiff, the following colloquy was had:

'Mr. Cannon: Q. Have you any connection, either as a stockholder or otherwise, with an indemnity company, or organization for the purpose of insuring people against personal injuries?

'Mr. Wilson: I object to that question as immaterial.

'Mr. Cannon: I do not think that it is immaterial. I would like to state why I asked the question.

'The Court: What is the reason?

'Mr. Cannon: The reason is--

'Mr. Wilson: I object to the reason being stated.

'The Court: I am asking for it.

'Mr. Cannon: In this case there is certain indemnity insurance against this kind of accident, and the insurance company is defending, through its own counsel, this action; therefore I have a right to inquire.

'Mr. Wilson: I object to the statement made by counsel, and assign it as error. It is an improper statement to make in this case. * * * We now move that the jury be discharged, on the ground that improper and foreign matter has come to the knowledge of the jury.

'The Court: The motion will be denied. I will instruct the jury to pay no attention to the remark of counsel, unless it should appear it is a pertinent fact.

'Mr. Cannon: Q. Have you any connection, either as a stockholder or otherwise, with any indemnity company such as I have described?

'Mr. Wilson: We insist upon our objection.

'The Court: I overrule the objection.

'Mr. Wilson: I will take an exception.'

Error is assigned, not only to the statement of counsel, but to the ruling of the court in refusing to discharge the jury, and in admitting the testimony.

In Pennsylvania Co. v. Roy, 102 U.S. 451, 459, 26 L.Ed. 141, the court said:

'The charge from the court that the jury should not consider evidence which had been improperly admitted was equivalent to striking it out of the case. The exception to its admission fell when the error was subsequently corrected by instructions too clear and positive to be misunderstood by the jury. The presumption should not be indulged that the jury were too ignorant to comprehend, or were too unmindful of their duty to respect, instructions as to matters peculiarly within the province of the court to determine. It should rather be, so far as this court is concerned, that the jury were influenced in their verdict only by legal evidence. Any other rule would make it necessary in every trial, where an error in the admission of proof is committed, of which error the court becomes aware before the final submission of the case to the jury, to suspend the trial, discharge the jury, and commence anew. A rule of practice leading to such results cannot meet with approval.'

In Throckmorton v. Holt, 180 U.S. 552, 567, 21 Sup.Ct. 474, 480 (45 L.Ed. 663), the court said:

'The general rule is that, if evidence which may have been taken in the course of a trial be withdrawn from the consideration of the jury by the direction of the presiding judge, such direction cures any error which may have been committed by its introduction.'

In line with these cases is Turner v. American Security & Trust Co., 213 U.S. 257, 267, 29 Sup.Ct. 420, 53 L.Ed. 788.

The only modification of the rule is in cases where the court can see that such a strong impression has been made upon the minds of the jury by illegal and improper testimony that its subsequent withdrawal will not remove the effect caused by its admission. Portland Gold Min. Co. v. Flaherty, 111 F. 312, 49 C.C.A. 361, was a case in which, as here, counsel for the plaintiff stated to the jury that the case was being defended by an insurance company; but in view of the fact that the court immediately, upon the first suggestion of counsel, excluded from the jury any consideration of the statement, the Circuit Court of Appeals held that there was no reversible error. See also, Weeks v. Scharer, 129 F. 333, 64 C.C.A. 11, Union Pac. R. Co. v. Thomas, 152 F. 365, 371, 81 C.C.A. 491, and Armour & Co. v. Kollmeyer, 161 F. 78, 83, 88 C.C.A. 242, 16 L.R.A.(N.S.) 1110.

The defendant contends that the trial court did not unequivocally withdraw from the jury the consideration of the statement so made by counsel, and that the court omitted to charge the jury, on the final submission of the case, to disregard that statement. But we regard the remark of the court as a distinct charge to the jury. It was tantamount to saying:

'I instruct the jury to pay no attention to the remark of counsel, unless it should appear it is a pertinent fact.'

It did not thereafter appear that it was a pertinent fact, for no evidence was adduced to show that the juror was interested in any indemnity company. If counsel for the defendant desired further instruction at the conclusion of the trial, it was his duty to bring the matter to the attention of the court at that time, and request such an instruction. We cannot think that the matter so alluded to on the examination of the juror was of a nature so impressive that the jury could not divest their minds of it and render a verdict according to the instructions of the court and the evidence in the case. There is no indication of prejudice in the amount of the verdict which was rendered. It is not improbable that all intelligent jurors of the present day know, as a matter of common knowledge, that in the large majority of damage cases brought against mining and manufacturing corporations the real party in interest as defendant is an indemnity insurance company. There is little, if any, substantial ground for assuming that a juror of the class of men who are usually summoned in a federal court would permit such a fact to influence in any degree his verdict.

It is contended that the court erred in admitting evidence of the financial condition of the parents of the deceased; the evidence being that they were very poor, and that the deceased had contributed to their support since he was big enough to work for wages. Section 1970 of the Civil Code of California contains this provision:

'When death, whether instantaneous or otherwise, results from an injury to an employe received as aforesaid, the personal representative of such employe shall have a right of action therefor against...