McCabe Steen Construction Company v. William Wilson

• Citation: 209 U.S. 275,28 S.Ct. 558,52 L.Ed. 788
• Decision Date: 06 April 1908
• Docket Number: No. 155,155
• Parties: MCCABE & STEEN CONSTRUCTION COMPANY, a Corporation, Plff. in Err., v. WILLIAM N. WILSON
• Court: U.S. Supreme Court

209 U.S. 275

28 S.Ct. 558

52 L.Ed. 788

MCCABE & STEEN CONSTRUCTION COMPANY, a Corporation, Plff. in Err.,

v WILLIAM N. WILSON.

No. 155.

Argued March 5, 6, 1908.

Decided April 6, 1908.

On June 9, 1902, Wilson, the defendant in error, was injured by the giving way of a railroad bridge across the Canadian river in the territory of Oklahoma. The bridge was on a new line of railroad, which was being constructed from Ok- lahoma City to Quanah, Texas. The petition, filed October 18, 1902, in the district court of the third judicial district, sitting in and for the county of Oklahoma, charged that the defendant, now plaintiff in error, was a subcontractor and constructing a portion of the railroad, including therein the crossing of the Canadian river; that Wilson was a locomotive fireman employed by the defendant. The circumstances of the injury were stated in the petition, and negligence on the part of the defendant was averred. A trial resulted in a verdict and judgment in favor of the plaintiff for $5,500. This judgment was affirmed by the supreme court of the territory (17 Okla. 355, 87 Pac. 320), and thence brought here by writ of error.

Messrs. Arthur G. Moseley and Louis B. Eppstein for plaintiff in error.

Messrs. James R. Keaton, John W. Shartel, Frank Wells, and John H. Wright for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

When the plaintiff rested the court overruled a demurrer to the evidence. This ruling, however, cannot avail the defendant, whatever the defects then in the case, for thereafter it proceeded to introduce testimony in its own behalf, and this waived any supposed error. Accident Ins. Co. v. Crandal, 120 U. S. 529, 530, 30 L. ed. 741, 742, 7 Sup. Ct. Rep. 685; Robertson v. Perkins, 129 U. S. 233, 236, 32 L. ed. 686, 687, 9 Sup. Ct. Rep. 279; Bogk v. Gassert, 149 U. S. 17, 23, 37 L. ed. 631, 634, 13 Sup. Ct. Rep. 738; Campbell v. Haverhill, 155 U. S. 610, 39 L. ed. 280, 15 Sup. Ct. Rep. 217.

The petition averred that one Pratt was defendant's superintendent of construction and one Fallahey foreman of the gang engaged in work on the bridge, and that the plaintiff was employed by the defendant through its general superintendent. The answer, in addition to certain special defenses, was an unverified general denial, and the court held that under the pleadings the defendant was estopped from showing that the foreman of the bridge gang and the superintendent of construction were not in its employ. This ruling was based upon § 3986 of the Oklahoma General Statutes, which provides that 'in all actions allegations . . . of any appointment or authority . . . shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.' Defendant also sought to prove that plaintiff was not in its employ; that it in fact did not exist at the time of the accident; that the contract for the construction work was taken by a partnership, McCabe & Steen. The answer of defendant alleged that the injury to plaintiff 'was due to one of the risks assumed by the plaintiff in his contract of employment with this defendant.'

The general denial in the answer as originally filed was, in terms, of 'the allegations contained in the petition in manner and form as therein set forth.' During the progress of the trial the defendant asked leave to amend by striking out the words 'in manner and form as therein set forth,' to which application the plaintiff objected, saying:

'As far as the general denial being sufficient to permit the defendant admitting that it is the proper defendant, and to raise further issues as far as it not being guilty of any negligence, admitting that it was the defendant and was doing the contracting work there, why we don't care anything about it; but we do object to their being permitted to amend their answer in any way so as to raise the issue that this defendant is not the defendant with whom the plaintiff contracted and who was doing this work.'

The court thereupon announced its decision to neither permit nor deny the defendant leave to amend at that time, saying:

The Court: We will go ahead now and treat this answer as a general denial at this time, and will reserve my ruling on your motion until I see further; I will fix the terms later.

Thereafter the question came up again, and the record shows these facts:

The Court: The defendant will be permitted to amend the general denial by striking out those words (the words heretofore referred to) by the payment of half of the costs of court to this date, except the witnesses of the plaintiff,—the fees; that is, provided, however, that if a continuance by reason of this amendment is taken by the plaintiff, the defendant shall be taxed with all the costs, unless the court should continue it on account of some showing made by the plaintiff; then, of course, the costs occasioned by the amendment would follow.

Mr. Keaton: Counsel for plaintiff here states that if it is permitted to show by testimony that the McCabe & Steen Construction Company were not building this road and not building the bridge, then the plaintiff will have to make a showing and ask for a continuance of the case in order to reform the pleadings.

Mr. Moseley: Well, we have not offered that testimony yet.

The Court: You gentlemen have heard my statement that if a continuance should be made necessary, then all the costs will follow.

Whereupon the defendant amends its answer by striking out certain words, the same being 'in manner and form as therein set forth,' which appeared between the word 'petition' and the word 'and' in the third line of first paragraph of said answer.

It will be observed that counsel for the defendant stated that he had not yet offered testimony to show that the McCabe & Steen Construction Company was not building the road and the bridge, and the record shows that thereafter there was no testimony in any form offered to establish that fact. Now whatever might have been competent testimony under the answer as amended, it appears by the statement of counsel that no testimony respecting the matter had been offered, and the record shows that none was thereafter offered. It must be stated, however, that prior to the ruling just quoted it had been shown that within six weeks after the injury, and while the work of construction was still in progress, the partnership conveyed all its interest to the corporation, the two members of...