Omaha Brewing Ass'n v. Bullnheimer

• Decision Date: 06 April 1899
• Citation: 58 Neb. 387,78 N.W. 728
• Parties: OMAHA BREWING ASS'N v. BULLNHEIMER.
• Court: Nebraska Supreme Court

58 Neb. 387

78 N.W. 728

OMAHA BREWING ASS'N

v.BULLNHEIMER.

Supreme Court of Nebraska.

April 6, 1899.

Syllabus by the Court.

1. Assignment of error of the admission of certain testimony examined, and held well taken.

2. There must be an exception to an instruction when given to obtain a review of the alleged error of such action.

Error to district court, Douglas county; Scott, Judge.

Action by Christian Bullnheimer against the Omaha Brewing Association. Judgment for plaintiff. Defendant brings error. Reversed.Lake, Hamilton & Maxwell and W. W. Morseman, for plaintiff in error.

E. W. Simeral and Weaver & Giller, for defendant in error.

HARRISON, C. J.

In an error proceeding to this court, the brewing association seeks a reversal of a judgment of the district court of Douglas county in favor of the defendant in error in an action wherein he recovered a sum as the damages for personal injuries alleged to have been suffered by him by reason of the negligence of the association. In the petition there was pleaded the corporate capacity and existence of the association; also that defendant in error was, and had been prior to March 12, 1894, “an engineer by trade,” and as such employed by the association. For further statements we now quote from the petition: “Plaintiff further says that on the 12th day of March, 1894, while employed by said defendant as aforesaid, that Gotlieb Storz, the president of said defendant corporation, ordered this plaintiff to go into the third cellar of said defendant's building, for the purpose of doing some work upon the brine pipes in said cellar. (4) That prior to said 12th day of March, 1894, by orders of said defendant, there had been a hole cut through the floor of said third cellar, about eight (8) feet square, which said hole opened into the second cellar, about eighteen (18) feet below that of the third cellar, and that through negligence and carelessness of the said defendant, its agents, servants, and employés, said opening was left wholly and entirely without protection, and uncovered, and unguarded by railing of any kind or description. (5) The plaintiff further states that said third cellar is at all times dark and unprovided with light, and plaintiff was compelled to carry a lighted candle; and that, while examining the brine pipes, which are attached to the sides and ceiling of the third cellar wall, and through no carelessness or negligence on his part, and not knowing of the existence of the hole in the floor of said cellar, as aforesaid, and while walking along the floor of said cellar, this plaintiff stepped into said hole, and fell through the same, a distance of about eighteen feet, into the cellar below.” There were further allegations relative to the injuries received by the defendant in error, their character, etc., and the suffering endured by him. Issues were joined, and a trial thereof resulted, as we have hereinbefore indicated, in a judgment against the association.

One question raised and argued for the plaintiff in error is of the admissibility of a portion of the testimony of the defendant in error, who, in answer to an interrogatory in regard to what had been stated to him by Mr. Haubens (who, it was testified by defendant in error, was one of the corporation, assisted in the transaction of its business, and was an officer of the association), stated, in a conversation between them as to what had caused Bullnheimer to quit the service of the association, that “I said to Mr. Haubens, ‘The way I get treated from Mr. Storz, I can hardly stand it any longer. I stood it so long. I done my best,--all I could,--all I could do for him;’ and then Mr. Haubens said: ‘It is a shame you get treated that way. You been working so long for the company, and always give satisfaction;’ and he says, ‘So far as,’ he says, ‘I should be paid if I should work or not.’ I could earn my money if I only was around.” This testimony was in relation to a business matter or transaction between the defendant in error and the association, which transpired subsequent to the alleged injuries, and the witness testified of the stated opinion of another party relative to the shameful treatment by the association of the defendant in error in such after-affair. The opinion of the conduct of the association, or its officer or officers, as stated to have been expressed by Mr. Haubens, whether so voiced by him or any other person, and while an officer or agent of the association or wholly unconnected with it, was wholly incompetent and immaterial to the issues then on trial, and was well calculated to prejudice the rights of plaintiff in error; hence the admission of the testimony was erroneous.

It developed in the testimony that, prior to the time the hole in the floor through which the defendant in error fell was made, some person had marked on the floor, with chalk, lines which were to be followed in sawing and taking out so much of the flooring as was necessary, and there had been an attempt during the course of...