Malloy v. Marshall-Wells Hardware Co.

• Decision Date: 28 May 1918
• Parties: MALLOY v. MARSHALL-WELLS HARDWARE CO. ET AL.
• Court: Oregon Supreme Court

173 P. 267

90 Or. 303

MALLOY v. MARSHALL-WELLS HARDWARE CO. ET AL.

Supreme Court of Oregon

May 28, 1918

Department 2.

Appeal from Circuit Court, Multnomah County; H. H. Belt, Judge.

Action by Thomas Malloy against the Marshall-Wells Hardware Company and another. Judgment for plaintiff against both defendants and both defendants appeal. Reversed as to defendant R. A Camp, and remanded.

This is an action to recover damages for a personal injury sustained by plaintiff September 11, 1915. It appears that Marshall-Wells Hardware Company is operating a two-story barn at the corner of Seventeenth and Lovejoy streets in the city of Portland. Plaintiff had been in the employ of this corporation since April, 1910. For upwards of four years prior to his injury he had lived with his family in the barn above referred to. His duties were manifold; they included the care of the horses, the cleaning of the barn, looking after the harness and the vehicles, and selling gasoline. Plaintiff had no hours of work, but was on duty practically all the time. He was liable to be awakened at night and called on to look out for a sick horse. Plaintiff reported to the defendant Camp, who was superintendent of the Portland business of his codefendant. Plaintiff was not a foreman, and no employé of the corporation looked to him for instructions.

The accident occurred about 5 o'clock on Saturday afternoon. Plaintiff was engaged in hoisting wood from the first floor of the barn to the second story through a hatch or opening in the second floor 6 feet by 4. The defendant had constructed a track for a hay carrier 10 feet above the second floor of the barn and at the time of the accident a pulley was fastened to this track. One end of the rope passing around this pulley ran to another pulley, which was anchored by a short rope to a piece of lumber nailed across one of the stalls. A horse was hitched to the end of the rope passing through this second pulley. The other end of the rope was tied to a sling passing around a box of wood. The horse was driven by William Malloy, one of plaintiff's sons. Plaintiff and J. W Miller were at the hatchway on the second floor to receive the wood as it was elevated. As the box of wood reached the second floor it caught. Plaintiff and Miller reached out with poles to guide the box through the hatch. At this time the anchor rope attached to the pulley on the ground floor broke and plaintiff fell through the hatch, sustaining serious injuries.

There is evidence that to the east of the hatch the second floor was slippery because hay had been repeatedly pulled across it. Negligence is predicated on this circumstance; also on the fact that the hatch was too small to admit of the easy passage through it of hay and other things which were hoisted to the second floor. The action is based in part also on the admitted fact that the hatch was unguarded by a railing of any kind. It appears that when not in use the hatch was closed by two hinged doors, and that when the hatch was open these doors rested on the floor. Plaintiff also charges negligence in the failure of defendants to test the rope which broke.

The defendants deny all allegations of negligence, and allege that plaintiff's injuries are due wholly to his own acts while working for himself in matters apart from the work for which he was employed by the defendant corporation.

Judgment was entered on a verdict for plaintiff against both defendants, and the defendants appeal.

Bean J., dissenting in part.

L. R Webster and J. L. Conley, both of Portland (Emmons & Webster and Stapleton, Conley & Stapleton, all of Portland, on the brief), for appellants. S. C. Spencer and J. W. Kaste, both of Portland (Wilbur, Spencer & Beckett, Bauer & Greene, A. H. McCurtain, and J. W. Kaste, all of Portland, on the brief), for respondent.

McCAMANT, J. (after stating the facts as above).

A preliminary question is suggested by the contention of Marshall-Wells Hardware Company that the state court lost jurisdiction on the filing of its petition and bond on removal to the federal court. It is alleged in the first affirmative answer of this defendant that such petition and bond were filed in the circuit court February 16, 1917, and that the circuit court refused to make an order removing the cause. The petition and bond alleged to have been filed are attached to the answer as exhibits. The reply admits:

"That after the time allowed by law for the removal of this cause to the District Court of the United States for the District of Oregon, said defendant attempted to remove the same, but was unsuccessful."

The other allegations of the answer are denied. The bill of exceptions fails to show any evidence on this subject. Nothing further is shown in this connection by any part of the record. It does not appear, therefore, that the petition and bond were filed in the circuit court. This condition of the record prevents us from sustaining this contention of Marshall-Wells Hardware Company, even if it were otherwise well taken.

The petition attached to the answer as an exhibit is sworn to under date of February 14, 1917, and could not have been filed earlier than that date. It alleges that the petitioning defendant was duly served within Multnomah county December 14, 1916. When, as in this case, the right of removal is based on diversity of citizenship, the petitioner is required to file his petition "at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which such suit is brought to answer or plead to the declaration or complaint of the plaintiff." Act Aug. 13, 1888, c. 866, 25 Stat. 435. Under our law the petitioning defendant was required to answer or plead to the complaint by December 24, 1916, and although his time so to plead may have been enlarged by stipulation or court order, his time to petition for removal expired on that day. There is a line of authority to the effect that a plaintiff who stipulates for an extension of time within which to answer will not be heard to contend that the time allowed for the removal of the cause has expired. If this principle can be considered settled, it by no means follows that the circuit court lost jurisdiction of this cause by the filing of a petition and bond on removal February 14, 1917. The circuit court did not err in retaining jurisdiction of the cause.

Frank A. Doney, a witness for plaintiff, testified that the floor at the side of the hatch was slippery and that its dangerous condition could have been obviated if a cleat had been put around the edge thereof. He was then asked, "Have you ever seen barns where they have this cleat that way?" Over the objection and exception of defendants he testified that he was familiar with a barn at Folsom, Mont., where such a cleat was in use about a floor opening. This evidence was offered to show that it was practicable to use the devices whose absence was contended by plaintiff to constitute negligence. In our opinion it was pertinent to the issue.

The witnesses Philip Erickson and William Malloy were permitted to testify over defendants' objection and exception that after plantiff's injury a railing was put around the hatchway. The court stated that this testimony had no tendency to establish negligence, but that it was admitted solely for the purpose of showing that such a railing was practicable. That the testimony when so limited was properly admitted is taught by Love v. Chambers Lumber Company, 64 Or. 129, 134-135, 129 P. 492.

Plaintiff contends that the bill of exceptions does not permit us to notice the other assignments of error which are pressed upon our attention. The bill of exceptions recites the trial of the cause before a jury, the taking of plaintiff's testimony which is attached as Exhibit A, the separate motions for nonsuit which were denied, and the taking of defendants' testimony which is attached as Exhibit B. The only portion of the testimony which is segregated is that which illustrates the foregoing rulings on the admissibility of evidence. The bill of exceptions sets out seriatim the instructions of the court, the exceptions reserved thereto, and the requested instructions which were not given; defendants being allowed exceptions to the refusal thereof. The exhibits which are sent up with the transcript are not physically attached to the bill of exceptions. Plaintiff contends in reliance on Keady v. United Railways Company, 57 Or. 325, 333, 334, 100 P. 658, 108 P. 197, that we cannot consider the bill of exceptions even for the purpose of reviewing the rulings on defendants' motions for a nonsuit, and for a directed verdict.

In the case cited the exhibits consisted of considerable documentary evidence, and the nature of the controversy was such that these documents might well prove decisive. The documents were neither attached to the bill of exceptions nor identified in any way except by a certificate of the county clerk. The certificate of the trial judge was to the effect that the bound volume of testimony together with the exhibits attached constituted all the evidence. There being no exhibits attached, it appeared affirmatively that a part of the testimony was missing. The court therefore applied the presumption that there was no error, and refused to consider the questions based on the bill of exceptions. One of these questions was the alleged error in denying the motion for a nonsuit.

In the case at bar the certificate of the trial judge recites that Exhibits A and B "contain a full, true, complete and correct transcript of all the evidence." There is no mention of exhibits in the certificate. The exhibits referred to in the transcript of the evidence are few in number and unimportant in their...