FW Woolworth Co. v. Davis, 187.

• Decision Date: 06 June 1930
• Docket Number: No. 187.,187.
• Parties: F. W. WOOLWORTH CO. v. DAVIS.
• Court: U.S. Court of Appeals — Tenth Circuit

41 F.2d 342 (1930)

F. W. WOOLWORTH CO. v. DAVIS.

No. 187.

Circuit Court of Appeals, Tenth Circuit.

April 30, 1930.

On Motion to Modify Judgment, June 6, 1930.

COPYRIGHT MATERIAL OMITTED

Richard K. Bridges, of Tulsa, Okl. (H. W. Randolph, John A. Haver, and Randolph Shirk, all of Tulsa, Okl., on the brief), for appellant.

Charles W. Pennel, of Bartlesville, Okl. (A. O. Harrison, of Bartlesville, Okl., on the brief), for appellee.

Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.

McDERMOTT, Circuit Judge.

The appellee, plaintiff below, recovered a judgment for injuries received from a fall down an elevator shaft in his employer's place of business. Several errors are assigned.

I. It is claimed that there was error in the overruling of defendant's special plea to the jurisdiction, which presented the proposition that the injury was compensable only under the Workmen's Compensation Laws of the state of Oklahoma. The state compensation statute provides that the remedies therein provided for shall be exclusive in cases where the statute applies. The statute provides:

"Compensation provided for in this act shall be payable for injuries sustained by employees engaged in the following hazardous employments, to-wit: * * * water-works, reduction works, elevators, dredges, smelters, powder works, * * * operation and repair of elevators in office buildings * * *." C. O. S. 1921, § 7283.

The plaintiff was an employee of one of the Woolworth retail stores; a part of his duties was to operate an elevator which was used by the store exclusively for transporting freight between the floors of that part of the building occupied and used by the store. The third floor of the building consisted of living apartments; the first and second floors were occupied by the defendant's store, except two front offices which were not connected with, nor occupied by, the defendant's store.

The Supreme Court of Oklahoma has not been called upon to interpret this statute as far as it refers to "elevators." It seems clear to us that the word "elevators" in the sentence "waterworks, reduction works, elevators, dredges, smelters, powder works" refers to grain elevators, or other "elevator" businesses, and not to the operation of an elevator in a building; if "elevators" referred to such vehicles, it would include passenger and freight elevators in mercantile, manufacturing, and office buildings. Such interpretation would render meaningless the subsequent limited sentence, "operation and repair of elevators in office buildings." The Supreme Court of Washington has construed a similar statute accordingly. Guerrieri v. Industrial Ins. Commission, 84 Wash. 266, 146 P. 608.

Nor was the plaintiff engaged in the "operation and repair of elevators in office buildings," for the simple reason that this was not an "office building"; it was a retail store, and the presence of the disconnected office on the second floor does not change its character. The special plea to the jurisdiction was properly overruled.

II. Error is assigned for failure to instruct a verdict because of the unreasonableness of plaintiff's version of the accident, and because plaintiff failed to show that his injuries were the result of his fall. Plaintiff testified that it was his duty to open a window on the far side of the elevator shaft on the second floor. Because the gate guarding the shaft was up, he assumed the elevator was at the floor, and started to walk across the elevator to open the window; the elevator was not there, and he fell about eighteen feet, striking a girder about two-thirds of the way down. There was evidence that his body fell out of the shaft, his head toppling back onto the floor of the elevator; that the floor of the elevator was covered with cartons, glassware, and other fragile material, which was not broken. There was also evidence that immediately after the accident, the window in the elevator shaft, which plaintiff started to open, was open. Plaintiff himself testified that often when he started to open the window when the elevator was at the ground floor he would swing or muscle himself across the shaft and open the window, to save himself the trouble of walking down to bring the elevator up. Defendant's argument on this point is not entirely clear, but we take it that its position is that the window being open immediately after the accident, the plaintiff must have opened it; that, if plaintiff had stepped into the elevator shaft, as he says, his body would have been inside the shaft and would have broken the glassware on the floor of the elevator; that, since windows do not open themselves, and falling bodies do not follow the arc of a semicircle, the evidence shows beyond dispute that plaintiff swung across the shaft, opened the window, slipped as he swung back, which would project his body out of the shaft and into the position in which it was found. While this theory does fit snugly into the admitted facts, and does accord with the fact that ordinarily men do not step blindly into open elevator shafts, and while such evidence would fully justify a verdict for the defendant, we cannot say that plaintiff's version is impossible, or that the jury could not believe him. Some one else may have opened the window; the girder may have so deflected his fall as to throw his body out of the shaft. The jury's finding concludes this question.

And so of the claim that his present injury — a paralyzed right leg — was not the result of the accident. Immediately after the fall, the doctors discovered no such injury; several days under observation in the hospital developed none. Shortly after his discharge from the hospital he was afflicted with appendicitis; after appendectomy, the motor, but not the sensory, nerve of the right leg was paralyzed. The doctors disagreed as to whether the injury could be traced back to the fall. The plaintiff testified that, upon manipulation immediately after the fall, the right leg pained him. This again was for the jury.

III. Error is assigned because the plaintiff, in his testimony, got before the jury the suggestion that the defendant carried insurance against such accidents. The testimony complained of was volunteered. Plaintiff's counsel argues that such voluntary statements are unavoidable, and that there was no motion to withdraw them from the jury's consideration, and no motion to discharge the jury. Where irrelevant and prejudicial matters are injected into a jury trial, a formal withdrawal ordinarily does no good; an objection, in fact, ordinarily serves but for emphasis. If counsel should inquire whether the defendant is insured, or by other means implant the suggestion with the jury, ordinarily the harm has been done, although circumstances may exist where the court, by vigorous effort, may undo the damage. There is conflict in the decisions of the courts as to whether the dragging in of such irrelevant matters is reversible error. The following cases hold, or state, that it is: Yoast v. Sims, 122 Okl. 200, 253 P. 504; Birch v. Abercrombie, 74 Wash. 486, 133 P. 1020, 50 L. R. A. (N. S.) 59; Coe v. Van Why, 33 Colo. 315, 80 P. 894, 3 Ann. Cas. 552; Coon v. Manley (Tex. Civ. App.) 196 S. W. 606; Martin v. Lilly, 188 Ind. 139, 121 N. E. 443; Sawyer v. Arnold Shoe Co., 90 Me. 369, 38 A. 333; Kerr v. Brass Mfg. Co., 155 Mich. 191, 118 N. W. 925; Cosselmon v. Dunfee, 172 N. Y. 507, 65 N. E. 494; Prewitt-Spurr Mfg. Co. v. Woodall, 115 Tenn. 605, 90 S. W. 623; Tremblay v. Harnden, 162 Mass. 383, 38 N. E. 972; Walters v. Appalachian Power Co., 75 W. Va. 676, 84 S. E. 617; Hollis v. United States Glass Co., 220 Pa. 49, 69 A. 55; Standridge v. Martin, 203 Ala. 486, 84 So. 266; Stanley v. Whiteville Lbr. Co., 184 N. C. 302, 114 S. E. 385. To the contrary, see Robinson v. Woolworth Co., 80 Mont. 431, 261 P. 253; Howard v. Marshall Motor Co., 106 Kan. 775, 190 P. 11; Jessup v. Davis, 115 Neb. 1, 211 N. W. 190, 56 A. L. R. 1403; Wells v. Morrison, 121 Or. 604, 256 P. 641, where the facts came before the jury incidentally, but contrary if willfully; Tuohy v. Columbia Steel Co., 61 Or. 527, 122 P. 36. The entire subject has been elaborately treated in a note entitled "Informing Jury of Liability Insurance," in 56 A. L. R. 1418.

The Fourth and Sixth circuits have held such evidence is irrelevant. In Stewart & Co. v. Newby, 266 F. 287, 295, the Court of Appeals of the Fourth circuit, after commenting on the prejudicial effect of getting before the jury the fact that any judgment will be paid by some impersonal insurance company not in court, and saying that "the removal of the fly does not restore an appetite for the food into which it has fallen," held:

"The authorities are overwhelming that such evidence is inadmissible, that it should be promptly excluded, and that the striking out of the testimony when once admitted does not obviate the necessity for a new trial, if the evidence is so impressive that its effect is not removed by subsequent withdrawal or instruction to disregard."

The Sixth circuit has held that the trial court has a large discretion as to the propriety and good faith of questions propounded jurors upon their voir dire, and has a large responsibility in seeing to it that the jury tries the issues before them, and no other. New Ætna Cement Co. v. Hatt (C. C. A.) 231 F. 611.

The Supreme Court, in no uncertain tones, has recently spoken of the imperative necessity of keeping trials of fact in the United States courts upon a high plane; of making of them in fact a search for the truth, and not an arena for the contest of shrewd lawyers playing upon the passions and prejudices of juries. After a verdict below on ample evidence, and an affirmance by the Court of Appeals, the Supreme Court reversed a personal injury case because the plaintiff's lawyer had referred in his argument to "this eastern railroad," "a claim-agent defense," and other irrelevant but prejudicial matters. The court, speaking...