Egner v. Curtis, Towle & Paine Co.

Decision Date17 April 1914
Docket NumberNo. 17,540.,17,540.
Citation96 Neb. 18,146 N.W. 1032
PartiesEGNER v. CURTIS, TOWLE & PAINE CO.
CourtNebraska Supreme Court

96 Neb. 18
146 N.W. 1032

EGNER
v.
CURTIS, TOWLE & PAINE CO.

No. 17,540.

Supreme Court of Nebraska.

April 17, 1914.


[146 N.W. 1032]


Syllabus by the Court.

Where a defendant, in a personal injury action, is indemnified by an employer's casualty insurance company, it is proper for plaintiff's counsel to show such fact when impaneling the jury, and to inquire of each juror, upon his voir dire, if he is a stockholder or agent, or in any manner interested in such company.

In an action for personal injuries, plaintiff, to prove an admission of liability, may show a demand made on defendant for payment for his injuries, and that defendant, through its general manager or duly authorized agent, made such admission.

And in such a case, if such general manager or duly authorized agent puts a refusal

[146 N.W. 1033]

of defendant to pay solely on the ground that it is insured, and for that reason it cannot pay, plaintiff is entitled to have the conversation admitted and the evidence submitted to the jury, under suitable instructions, for them to determine what the true import of the conversation was.

It appears that, after plaintiff was injured, a physician, unknown to, and without authority from, him, was called to treat his injuries, and, without any subsequent employment by plaintiff, continued to treat him for a considerable period of time. Upon the trial, plaintiff's counsel called such physician to the witness stand, and attempted to show by him who employed him. Held, not misconduct on the part of counsel.

Ordinarily, in a civil action, statements made by plaintiff's counsel in his closing argument will not justify a reversal of the judgment, where it appears that exception was taken to the statement at the time it was made, the exception sustained, and the jury duly admonished by the court.

The fact that plaintiff, in a personal injury suit, is permitted, over objections, to show that he has a family consisting of a wife and four children will not be held to be prejudicial error, where it does not appear that the admission of such testimony could have influenced the jury in arriving at the amount of their verdict.

The action of the court in refusing certain instructions requested by defendant, and in giving the instructions given by the court on its own motion, examined and approved.

The verdict of a jury, rendered upon conflicting evidence and sustained by the trial court, will not ordinarily be disturbed on appeal.


Appeal from District Court, Lancaster County; Frost, Judge.

Action by David P. Egner against the Curtis, Towle & Paine Company for personal injuries. From judgment for plaintiff, defendant appeals. Affirmed.

Letton, J., dissenting in part.

Morning & Ledwith, of Lincoln, for appellant.

G. W. Berge, of Lincoln, for appellee.


FAWCETT, J.

From a judgment of the district court for Lancaster county, on a verdict for $3,000 in favor of plaintiff in an action for personal injuries, defendant appeals.

Defendant is a corporation, and, among other things, is engaged in running a planing mill. In connection with its business, it owns a four-story building, and has in use therein a freight elevator. The petition alleges: That the defendant, through its foreman, ordered plaintiff, who was one of its employés, to leave his work in another part of the building and help the foreman break a hole in the pit of the elevator shaft, for the purpose of permitting accumulated water to run into an adjacent sewer; that there was about a foot of water in the pit; that as soon as they entered the pit the foreman directed plaintiff to reach down into the corner and into the water where the foreman had been digging a hole during the forenoon, for the purpose of removing a stone or obstruction in the pit, so as to let the water flow out; that plaintiff, in stepping down to reach the stone, and on account of the water in the pit, was obliged to and did place his right hand against the wall of the elevator shaft in order to support himself, and, while so stooping down and endeavoring to reach the stone with his left hand, and while in the exercise of due care and caution, and without any fault or negligence on his part, the elevator was suddenly moved upward, throwing the counterweights, suspended by ropes attached to the elevator, and weighing approximately 2,500 pounds, onto the right hand of plaintiff, thereby completely crushing and breaking the bones of his right wrist and arm and completely and permanently destroying his right hand. Numerous grounds of negligence on account of what had happened are alleged in the petition, among them negligence of the defendant in directing plaintiff “to go into said elevator basement without notifying him that said elevator was not fastened or chained, as was the custom when working about said elevator, and because of the negligence of the defendant in not fastening or chaining said elevator while plaintiff was directed to work under the same.” The trial court withdrew from the consideration of the jury all of the acts of negligence charged in the petition, except these two. The answer admits the corporate character of defendant, the business in which it was engaged, and that plaintiff was in its employ at the time he received the injury set out in the petition; alleges that he had been so employed for several weeks, that the labor in which he was engaged at the time he received the injury was within the scope and terms of his employment; denies in detail all the acts of negligence alleged in the petition; and alleges contributory negligence. The reply is a general denial.

The assignments of error argued in defendant's brief will be considered in the order in which they are therein presented.

[146 N.W. 1034]

[1] Misconduct of plaintiff and his attorney. When the jury was being impaneled, counsel for plaintiff, in examining the first juror, asked: “Mr. Fox, are you acquainted with the American Fidelity Company, or Williams & Walt, its agents?” An objection was made to this question, on the ground that neither the Fidelity Company nor Williams & Walt are “parties to this suit or connected therewith.” The objection was sustained, and no further question of that kind was asked by counsel for plaintiff in his voir dire examination of the jury. Defendant argues that, notwithstanding the fact that the objection was sustained, to ask the question and make it necessary for defendant to object was misconduct, entitling defendant to a new trial. We are unable to give our assent to this contention for two reasons: First, in our judgment, it could not have prejudiced the defendant with the jury;...

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