Egner v. Curtis, Towle & Paine Co.

• Citation: 146 N.W. 1032,96 Neb. 18
• Decision Date: 17 April 1914
• Docket Number: 17,540
• Parties: DAVID P. EGNER, APPELLEE, v. CURTIS, TOWLE & PAINE COMPANY, APPELLANT
• Court: Nebraska Supreme Court

146 N.W. 1032

96 Neb. 18

DAVID P. EGNER, APPELLEE, v. CURTIS, TOWLE & PAINE COMPANY, APPELLANT

No. 17,540

Supreme Court of Nebraska

April 17, 1914

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Affirmed.

AFFIRMED.

Morning & Ledwith, for appellant.

George W. Berge, contra.

FAWCETT J. LETTON, J., concurring in part and dissenting in part.

OPINION

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 employees, 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.

Misconduct of plaintiff and his attorney. When the jury were 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; second, the error of the court was in not overruling the objection, as it should have done. Upon this point we concede that the authorities, cited from other states, are conflicting; but we think the correct rule is the one announced in Foley v. Cudahy Packing Co., 119 Iowa 246, 93 N.W. 284; Brusseau v. Lower Brick Co., 133 Iowa 245, 110 N.W. 577; Spoonick v. Backus-Brooks Co., 89 Minn. 354, 94 N.W. 1079; Antletz v. Smith, 97 Minn. 217, 106 N.W. 517; Citizens' Light, Heat & Power Co. v. Lee, 62 So. 199; Swift v. Platte, 68 Kan. 10, 74 P. 635 (on rehearing); Iroquois Furnace Co. v. McCrea, 191 Ill. 340, 61 N.E. 79. In Spoonick v. Bachus-Brooks Co., supra, it is said (p. 359): "It is no answer to this to say that the insurance company is not named as a party to this action, for the bias of the juror is not to be determined by this fact. Nor is it an answer to say that counsel may protect his client by using a peremptory challenge. It is his right first to learn the facts, and he must do so to exercise intelligently his right to challenge peremptorily. The authorities all go to show that a very insignificant interest in the result of an action, and frequently a very trifling relationship to one of the parties, is sufficient to disqualify a person from sitting as a juror. In order to secure to litigants unbiased and unprejudiced jurors, we are compelled to hold that plaintiff's counsel had a right to ascertain whether there was such a relationship between the persons called as jurors and the insurance company, a corporation vitally interested in the result, which would disqualify these persons, because, by implication, they would be biased and prejudiced."

It is further argued under this assignment that plaintiff's counsel, "under the pretext of trying to get his client to testify to a statement made by Mr. Towle, general manager and treasurer of the defendant, as to defendant's liability, sought through several pages of record, over repeated objections, to draw into the case an alleged statement of Mr. Towle that the defendant carried insurance against liability for such accidents, and he succeeded in doing so." We do not think the record sustains the aspersions thus cast upon counsel. We think it shows, as stated by counsel in his brief, that he was earnestly endeavoring to show by his client, who had a very imperfect understanding of English, a conversation had with Mr. Towle after plaintiff was able to leave the hospital, in which Mr Towle, the general manager, admitted the liability of his company, but gave as a reason for not paying plaintiff his damage that defendant's employees were all insured, and for that reason defendant could not pay. The court ruled so constantly with the defendant throughout the examination of plaintiff by his counsel that about all counsel for plaintiff obtained was an answer to the question, "What did Mr. Towle say about the liability of the Curtis, Towle & Paine Company for that injury? A. He told me the people is all insured and so it is not right to pay me." This answer was on motion stricken out. Thereupon counsel for plaintiff stated: "Q. Mr. Egner, we will try it again. Let the reporter read the question." The question was read, and after persistent objections the witness answered: "A. Well, he gave an address and sent me over on the office, I guess Williams & Walt." This answer was stricken out. The court then put the question to the witness: "Mr. Egner, in making your answer, confine your answer to what Mr. Towle said about the Curtis, Towle & Paine Company. A. That is all what was said; he sent me over to the insurance company, and they helped me out in the suing." On motion of defendant all of this answer was stricken out except the words, "That is all what was said." Here, again, we think the court erred against the plaintiff. Plaintiff, in attempting to prove an...