Fell v. Kimble
| Decision Date | 05 March 1913 |
| Parties | FELL v. KIMBLE. |
| Court | Texas Court of Appeals |
Appeal from District Court, McLennan County; Marshall Surratt, Judge.
Action by O. E. Kimble, by next friend, against Frank Fell. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
T. L. Camp, of Dallas, and Spell & Sanford, of Waco, for appellant.
This suit was instituted by appellee against appellant, a contractor, to recover damages for personal injuries, alleging that he was employed by appellant, who was engaged in remodeling a three-story brick building in Waco, and that at the direction of appellant's foreman appellee, with two others, got into the elevator to descend from the top of the building, and was injured by the falling of said elevator some 50 feet to the ground below, owing to its defective condition, and on account of its being improperly and negligently operated. After a general demurrer and general denial, appellant pleaded that appellee remained on the premises after the close of working hours of his own accord, and at the time of his injuries he was not engaged in the performance of any duty under his employment, and his presence on the elevator was unknown to appellant's foreman, and that said foreman had not instructed, invited or directed appellee to ride on the elevator; and likewise defended on the ground of assumed risk. There was a verdict and judgment on behalf of appellee, from which this appeal is prosecuted.
It seems that one Hays, the representative of an indemnity insurance company, after the accident procured from John Pinto and several others a detailed account of the occurrence; and, after said Pinto had testified in behalf of appellee, his attention was called to said statement, which he identified, and he was asked numerous questions relative thereto by counsel for appellant, with the evident purpose of impeachment. On re-examination of this witness by counsel for plaintiff, as well as on the cross-examination of the defendant himself, said counsel was permitted, over objection of appellant, among other things to ask both of said witnesses if it was not true that said Hays, who procured said statements, was the representative of an indemnity insurance company. It further appears from the record, by the affidavits of two of the jurors, that this matter was referred to and discussed in the jury room while the jury were deliberating upon the case; but said two jurors stated that they were not...
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