Ford Motor Co. v. Brady

• Citation: 73 F.2d 248
• Decision Date: 12 October 1934
• Docket Number: No. 9866.,9866.
• Parties: FORD MOTOR CO. v. BRADY.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

73 F.2d 248 (1934)

FORD MOTOR CO. v. BRADY.^*

No. 9866.

Circuit Court of Appeals, Eighth Circuit.

October 12, 1934.

Staunton E. Boudreau, of St. Louis, Mo. (William M. Fitch and George H. Moore, both of St. Louis, Mo., on the brief), for appellant.

William Kohn, of St. Louis, Mo. (W. J. Blesse, of St. Louis, Mo., on the brief), for appellee.

Before SANBORN and WOODROUGH, Circuit Judges, and DEWEY, District Judge.

SANBORN, Circuit Judge.

The appellee brought this action at law to recover for personal injuries alleged to have resulted from the failure of the appellant to comply with the statutes of Missouri relating to occupational diseases. Rev. St. Mo. 1929, §§ 13252-13266 (Mo. St. Ann. §§ 13252-13266, pp. 4803-4809). From a judgment in his favor entered upon the verdict of a jury, this appeal is taken. The parties will be referred to as in the court below.

We are first confronted with the necessity of determining what questions are properly before us. With its petition for appeal the appellant filed twelve assignments of error, which are, in substance, as follows:

I. The court erred in "refusing to give defendant's requests in the nature of a demurrer" at the close of plaintiff's evidence and at the close of all the evidence.

II. The court erred in "holding" that the verdict and judgment were supported by the law and the evidence.

III. The court erred in "holding" that there was any substantial evidence that the illness of the plaintiff and his damages were produced by his work.

IV. The court erred in refusing defendant's request No. 5, relating to the duty of the defendant to provide a physical examination once a month.

V. The court erred in charging the jury relative to such duty.

VI. The court erred "in admitting evidence as to whether or not defendant should have furnished respirators under the issues and the law in this case."

VII. "The Court erroneously charged the jury on the general propositions contained in section 13252, R. S. Mo. 1929 (Mo. St. Ann. § 13252, p. 4803), when the issues arising under said Section did not arise under plaintiff's petition, or the competent evidence in the case."

VIII. "The Court erroneously broadened the issues under the pleadings and the law: first, by erroneously admitting evidence concerning the use of substances, gases, fumes, vapors and elements other than those mentioned by name in plaintiff's petition; and, secondly, by charging the jury that the jury might consider various substances, elements, fumes, vapors, gases, etc., which did not arise from the use of the substances named in said petition, after plaintiff's evidence showed that the gases, fumes, vapors and substances which were actually used were harmless, and not injurious or poisonous, or likely to produce pulmonary tuberculosis, of which plaintiff complained; and, next, the Court erroneously permitted the jury, under his charge, to consider the question as to whether poisonous chemicals, minerals, acids, fumes, vapors, gases or dusts were produced in said work which did not originate from the use of the poisonous basic elements charged by the petition as being constituent parts of the paint which plaintiff used, viz., did not arise from antimony, brass, copper, lead, mercury, phosphorus, zinc, their alloys or salts."

IX. The court in his charge erred in failing to limit the existence of poisonous substances to those which arose from certain metals and their salts.

X. "That under the issues, the law, and the evidence, it was manifest that the plaintiff assumed all the risks of his employment."

XI. "That under all of the issues, the law and the evidence, the plaintiff's acts contributed to the illness complained of."

XII. "The Court erred in overruling defendant's motion for a new trial."

Rule 11 of this court, relating to assignment of errors, requires that

"The appellant shall file with the clerk of the court below, with his petition for the appeal, an assignment of errors, which shall set out separately and particularly each error asserted and intended to be urged. * * * When the error alleged is to the admission or to the rejection of evidence, the assignment of errors shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused."

The defendant's assignments relating to rulings upon evidence do not quote the "full substance" of the evidence, and therefore do not comply with this rule and must be disregarded. Wagner Electric Corporation v. Snowden (C. C. A. 8) 38 F.(2d) 599, 600, 601; Federal Surety Co. v. Standard Oil Co. (C. C. A. 8) 32 F.(2d) 119, 120; Lahman et al. v. Burnes Nat. Bank of St. Joseph, Mo. (C. C. A. 8) 20 F.(2d) 897, 899, 900; Schmidt v. United States (C. C. A. 8) 63 F. (2d) 390, 391; Maryland Casualty Co. v. Elmira Coal Co. (C. C. A. 8) 69 F.(2d) 616, 618.

The defendant's assignments of error relating to the charge of the court or to its failure to give requested instructions do not set out the portion of the charge referred to or the instructions refused. Such assignments will be disregarded. Haldane et al. v. United States (C. C. A. 8) 69 F. 819, 821; Fisher Machine Works Co. v. Dougherty (C. C. A. 8) 231 F. 910, 912.

The assignments which relate to the holdings of the court are obviously insufficient E. R. Squibb & Sons v. Mallinckrodt Chemical Works (C. C. A. 8) 69 F.(2d) 685, 686, as are also the assignments that under the law and the evidence the plaintiff assumed the risk and was guilty of contributory negligence. Referring to such assignments as these, Judge Gilbert, of the Ninth circuit, in the case of Hecht v. Alfaro (C. C. A. 9) 10 F.(2d) 464, 466, said: "They bring up for review no ruling of the trial court. They do not show that at any point in the proceedings the court below committed error. Upon no question thus presented does it appear that the trial court was requested to make a ruling or give an instruction to the jury. This court has no authority to retry an action at law and render such judgment as we may think should have been rendered. We can review only rulings made by the trial court on questions brought to its attention and passed upon by it." See, also, Ayers v. United States (C. C. A. 8) 58 F. (2d) 607.

The assignment that the court erred in denying a new trial has now been waived, since it is not specified or argued in the appellant's brief.

The specification of errors, required by rule 24 of this court, is as defective as the assignment of errors. The fact is that the appellant has one assignment of errors in its record, and another assignment in its brief. We shall assume, however, that the assignment in the brief is an attempted compliance with rule 24, which requires that the brief contain:

"A separate and particular statement of each assignment of error intended to be urged, with the record page thereof. When such error is as to the admission or rejection of evidence, the statement shall quote such evidence with the rulings thereon, giving pages of the printed record where it occurs. When such error is as to the charge of the court, the statement shall quote the portion of the charge or the requested instruction refused which is claimed as error, giving pages of the printed record where it occurs."

The "assignment of errors" printed in the appellant's brief omits any reference to "the record page thereof," and does not correspond either in language or entirely in substance with the "assignment of errors" appearing in the record. For instance, the first two assignments in the record are:

"I. The court erred in overruling and refusing to give defendant's requests in the nature of a demurrer, one at the close of plaintiff's evidence and, next, at the close of all of the evidence in the case."

"II. The court erred in holding that the verdict and judgment was supported by the law and the evidence under the issues in the case" —

while in the brief the first two assignments are:

"I. The court erroneously refused to direct a verdict for defendant."

"II. The court was in error in submitting any issue to the jury in this case."

The errors assigned or specified in the brief with respect to rulings on evidence and with respect to the charge set forth neither the evidence admitted or rejected nor the portions of the charge which are claimed to be erroneous. They do not contain the requested instructions refused or the printed pages of the record where the portions of the charge complained of or such requested instructions can be found.

It has been repeatedly held by this court that a failure to comply with rule 24 is alone ground for affirmance. City of Lincoln v. Sun Vapor Street-Light Co. (C. C. A. 8) 59 F. 756, 758; Kinser v. United States (C. C. A. 8) 231 F. 856, 861; Lohman v. Stockyards Loan Co. (C. C. A. 8) 243 F. 517, 518; City of Goldfield v. Roger (C. C. A. 8) 249 F. 39, 40; Daly-West Mining Co. et al. v. Savage et al. (C. C. A. 8) 253 F. 548; Hard & Rand, Inc., et al. v. Biston Coffee Co. (C. C. A. 8) 41 F.(2d) 625, 626; Harrow-Taylor Butter Co. v. Crooks (C. C. A. 8) 41 F.(2d) 627; E. R. Squibb & Sons v. Mallinckrodt Chemical Works (C. C. A. 8), supra, 69 F. (2d) 685, 686, 687.

While, under the circumstances, we think this court would be entirely justified in refusing to consider any of the questions sought to be raised by the appellant, we are aware that there might be some basis for an argument that the rules to which we have referred ought not to be so strictly applied as to require an appellant to set out in his assignment of errors and in his specification of errors totidem verbis his request for a peremptory instruction, because such a request is the equivalent of a motion for a directed verdict or a demurrer to the evidence. It is quite apparent that rules 11 and 24 require that, in assigning or specifying...