O'Hara v. Lamb Const. Co.

• Decision Date: 03 July 1917
• Docket Number: No. 14696.,14696.
• Citation: 197 S.W. 163
• Parties: O'HARA v. LAMB CONST. CO.
• Court: Missouri Court of Appeals

197 S.W. 163

O'HARA v. LAMB CONST. CO.

No. 14696.

St. Louis Court of Appeals. Missouri.

Argued and Submitted June 8, 1917.

Opinion Filed July 3, 1917.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Jennie O'Hara against the Lamb Construction Company. Verdict for plaintiff, defendant's motion for new trial granted, and plaintiff appeals. Affirmed, and cause remanded.

T. J. Rowe, of St. Louis, for appellant. Watts, Gentry & Lee, of St. Louis, for respondent.

REYNOLDS, P. J.

Michael O'Hara, husband of plaintiff, now appellant, was in the employ of the defendant company in their operation of a quarry. At the time of the accident to him, he was standing on a ledge about 200 feet long by 40 or 50 feet wide, and about 16 feet above the bottom or level of the quarry, directing the hoisting of boxes filled with rock which were being hoisted from the level of the quarry below him and which boxes, in going to the top of the quarry passed the ledge upon which he was standing, O'Hara steadying the boxes to prevent the rope from twisting as it was drawn to the surface of the ground at the top of the quarry. These boxes were hoisted by means of a rope cable attached to a derrick and hooked on to the boxes by chains. The accident happened on May 14th, about 9 o'clock in the morning. On the day preceding, the defendant's manager, one Luke Lamb, discovered that there was a bad place in the rope where it had been worn. He wrote a note to O'Hara to this effect: "Mike, keep the men from under the loaded box; the rope is bad. Luke." Luke Lamb fastened this note with a piece of wire to the chain attached to the box, and sent it down with the box to O'Hara. O'Hara saw this note, opened and read it and passed it down to the bottom of the quarry to one of the men who was working below him. That man picked up the tools with which he was working and moved away. Immediately after writing the note Luke Lamb telephoned to a rope company to send out a new rope which it did but the rope did not arrive until after the happening of the accident to O'Hara. O'Hara was the foreman in the quarry and had entire charge of all the men working therein, with full authority to direct them about when, where and how to do their work and to discharge them if he saw proper. He was not required to do any work with his own hands but was a very willing worker and often worked, although reproved for this by his manager. On the morning of May 14th, while the box or bucket, loaded with rock, was being hoisted, the rope broke and let the box down on O'Hara, catching him about his middle and injuring him so severely that he died a short time thereafter.

There was a verdict for plaintiff and on motion of the defendant for a new trial, which, among other grounds, attacked the instructions given at the instance of plaintiff and by the court at its own motion, set out that plaintiff's counsel was guilty of improper conduct in making improper remarks to the jury in his closing argument, which remarks, it was averred, led the jury to believe that some one other than the defendant of record was interested in the defense of the case, which remarks by counsel for plaintiff, as set out in the motion and in the bill of exceptions, were:

"I suppose it would be highly improper for me to tell you who the real defendants are in this case."

Whereupon counsel for defendant said:

"I object to that remark and move the court to rebuke counsel for plaintiff and discharge the jury."

To this the court said that he did not think the remark was proper; that the only party defendant in this case is the Lamb Construction Company. Counsel for defendant asked the court to rule on his motion to discharge the jury. The court said:

"I will say to the jury that the Lamb Construction Company is the only party defendant in this case; there are no other parties in this case and they will not consider such remarks."

The court thereupon overruled the motion of defendant's counsel to discharge the jury, to which counsel for defendant duly excepted.

In sustaining the motion for a new trial the court gave the following as its reason for doing so:

"On the voir dire the jurors were asked by plaintiff's counsel whether or not they were interested in any way in the Travelers' Insurance Company. Said insurance company is not a party in this case. In his address to the jury plaintiff's counsel stated: `I suppose it would be highly improper for me to tell you who the real defendants are in this case.' As said in Trent v. Printing Company, 141 Mo. App. loc. cit. 452 , `It is obvious counsel for plaintiff adroitly managed to impress the jury with the conviction that defendant was insured.' The question propounded on the voir dire in connection with above statement is enough intimation to any intelligent juror that a surety company is the real defendant. A defendant's case may be prejudiced by getting information to a jury that an indemnifying insurance company is in some sense the real defendant." 169 Mo. App. 715, 155 S. W. 861.

We think the action of the court in granting the new trial on the ground assigned was correct.

In Gore v. Brockman, 138 Mo. App. 231, 119 S. W. 1082, counsel for plaintiff, in cross-examining defendant, asked him if he did not carry "Doctor's Protective Insurance."...