Brown v. Kittanning Clay Products Co.
| Decision Date | 07 January 1918 |
| Docket Number | 2 |
| Citation | 102 A. 948,259 Pa. 267 |
| Parties | Brown v. Kittanning Clay Products Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued September 27, 1917
Appeal, No. 2, Oct. T., 1917, by defendant, from judgment of C.P. Armstrong Co., Dec. T., 1914, No. 116, on verdict for plaintiff, in case of Annie E. Brown v. Kittanning Clay Products Company. Reversed.
Trespass to recover damages for the death of plaintiff's husband. Before KING, P.J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff for $5,000 and judgment thereon. Defendant appealed.
Errors assigned were instructions to the jury.
The fourth assignment, covering the matter first passed upon in this opinion, is sustained, and the judgment is reversed with a venire facias de novo.
Francis R. Harbison, with him Charles F. Patterson, for appellant.
C. E Harrington, with him H. A. Heilman, for appellee.
Before MESTREZAT, POTTER, STEWART, MOSCHZISKER and FRAZER, JJ.
On December 13, 1913, William Brown was killed by the falling of a derrick, constructed for the purpose of cleaning out a gas well; his widow sued to recover damages, alleging that her husband's death was due to the negligence of his employer, the Kittanning Clay Products Company, a corporation; judgment was entered on a verdict in her favor and the defendant has appealed.
In course of the presentation of plaintiff's case, it appeared that the well in question belonged to and was located upon the property of another corporation, named the Foster Oil and Gas Company, and the trial judge charged that defendant would be liable if the jury should find that the Kittanning Clay Products Company and the Foster Oil and Gas Company were, "in effect, one and the same"; this instruction is assigned as error. While, in certain instances, the same men held similar offices in each of these corporations, and the oil company furnished some of the natural gas used by the products company in the operation of the latter's plant, yet there is no sufficient evidence upon the record to justify a finding that they were, in any sense, "one and the same" company; for this reason, since, under the instruction complained of, the jury may have based their verdict on such a finding, the fourth assignment, which calls attention to this part of the charge, will have to be sustained.
Testimony was admitted on behalf of the plaintiff, under objection and exception, that Frank Foster, the superintendent of defendant company, who was dead at the time of the trial, had told one of plaintiff's witnesses, three days after the accident, that he, Foster, "didn't want Mr. Brown [plaintiff's husband] to go to that well," but that he "finally let Brown go" there; and, in the end, the witness said plainly Foster had declared to him that he had "told Brown to go to the well." It is contended by defendant that the admission of this testimony was clear reversible error, and that, whether or not this be true, the evidence is insufficient to support the verdict. On the other hand, plaintiff contends that, since at the trial defendant's objection was stated upon the narrow and inadequate ground that Frank Foster was dead, it is too late now to insist upon broader reasons for its exclusion; and, being in, the evidence was proper for consideration by the jury.
The testimony under consideration was, at the most, but hearsay evidence of a declaration or admission by an agent, made after the accident; therefore, it was inadmissible Scheel v. Shaw, 252 Pa. 451, 461; Monongahela Water Co. v. Stewartson et ux., 96 Pa. 436, 439; Bigley v. Williams, 80 Pa. 107, 116; Fawcett v. Bigley, 59 Pa. 411, 413;...
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