Marion Steam Shovel Co. v. Bertino

• Decision Date: 07 May 1936
• Docket Number: No. 10331.,10331.
• Parties: MARION STEAM SHOVEL CO. v. BERTINO et al.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 945 (1936)

MARION STEAM SHOVEL CO. v. BERTINO et al.

No. 10331.

Circuit Court of Appeals, Eighth Circuit.

May 7, 1936.

Elliott H. Jones, of Kansas City, Mo. (J. M. Strelitz, of Marion, Ohio, and William C. Scarritt, Edward S. North, and Arthur D. Scarritt, all of Kansas City, Mo., on the brief), for appellant.

Clay C. Rogers, of Kansas City, Mo. (O. C. Mosman, C. Jasper Bell, and Paul A. Buzard, all of Kansas City, Mo., Louis N. Wolf, of Joplin, Mo., Cornelius Murphy, Jr., of Kansas City, Mo., and Sylvan Bruner, of Pittsburg, Kan., on the brief), for appellees.

Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

Defendant has filed a petition for rehearing in which counsel reargue the entire case. The function of such a petition is defined and limited by rule 18 of this court. The rule, among other things, provides as follows:

"The sole purpose of a petition for rehearing is to call attention to material matters of law or fact inadvertently overlooked by the court, as shown by its opinion. Mere reargument of issues determined by the opinion will be entirely disregarded."

One matter is urged, however, which we think is deserving of attention. It is earnestly contended that a disposition of the case could not properly be made without determining whether Cleon Williams was at the time in question the servant of defendant, because, it is argued, the case was submitted to the jury on charges of negligence of both Titus and Williams, and that "the same were independent charges and independent grounds of negligence."

It is true that in the original opinion we declined to consider the contention that Williams was not an employee of defendant, saying that, "In view of our conclusions on the other issues, it is not necessary to consider whether Williams was an employee of defendant." As observed in our original opinion, "The appeal does not challenge the sufficiency of the evidence as to the negligence of Titus nor that plaintiff Bertino's injuries proximately resulted therefrom." The contention was not that Titus was not guilty of negligence, but that he was not defendant's servant. True, it was also contended that Williams was not defendant's servant. We determined that Titus was defendant's servant, for whose negligent acts it was responsible. Having determined that this relation existed at the time of the injury in respect to the very transaction out of which the injury arose, we were of the view that the mere fact that the act of Williams, even if he were a third person not an employee of defendant, may have contributed to the injury, would not exempt defendant from liability, and hence, when we determined the status of Titus, his causal negligence having been conceded, it was not necessary to consider whether defendant was also responsible for the contributing negligence of Williams. Chicago v. O'Malley, 196 Ill. 197, 63 N.E. 652.

On rehearing, defendant cannot for the first time be permitted to contend that Titus was not negligent, or that his negligence was not the proximate cause of plaintiff's injuries. These questions were waived on the original hearing and must be treated as abandoned. On the original hearing the sole questions directed to our attention were: First, the status of defendant's agents, and, second, the applicability of the Missouri Workmen's Compensation Act (Mo.St.Ann. § 3299 et seq., p. 8229 et seq.). One seeking a rehearing will not ordinarily be permitted to set up new grounds in support of his petition different from those urged by him on the original hearing. Reece Folding Machine Co. v. Fenwick (C.C.A.1) 140 F. 287, 2 L. R.A.(N.S.) 1094; A. F. Withrow Lumber Co. v. Glasgow Inv. Co. (C.C.A.4) 106 F. 363; United States v. Hall (C.C.A.1) 63 F. 472.

But we think counsel have misconceived the teaching of the instructions in so far as they refer to the negligence of Titus and Williams. On its own motion, the court charged the jury as follows:

"Now, your next inquiry would be first was there negligence on the part of Titus who was acting for the defendant, if you so find, in causing this dipper to drop with the result that Bertino's hand was cut off. The first inquiry, was there negligence in these particulars, particulars not mentioned in the petition; did he use a chain when he ought not use a chain, and if he used a chain was the chain an inadequate or insufficient one, and would a cable have been better; would a prudent man under the circumstances have used a cable? Moreover, it is charged he didn't warn this man of the circumstances that the chain might break; moreover, it is charged that the dipper was suddenly jerked up with the result that it fell, that these were careless acts on the part of defendant acting through Ed Titus, if it were doing the work there." (Italics supplied.)

It is observed that all the acts of negligence referred to were submitted to the jury as the negligent acts of Titus. In an instruction given at the request of plaintiff, the jury was further charged:

"And if you further find that the defendant or Titus, acting for it, if so, negligently and carelessly used and employed a chain for the purpose of raising and turning the dipper mentioned in evidence, which said chain, if so, was too weak, light or insufficient or insecure for such purpose, if it was, or negligently and carelessly failed to use and employ cables to raise said dipper or negligently and carelessly placed the door on said dipper before attempting to raise the same, or negligently and...