Sherrillo v. Stone & Webster Engineering Corp.
Decision Date | 08 May 1952 |
Citation | 110 Cal.App.2d 785,244 P.2d 70 |
Court | California Court of Appeals Court of Appeals |
Parties | SHERRILLO v. STONE & WEBSTER ENGINEERING CORP. Civ. 18642. |
Victor C. Rose and Alfred M. Klein, Los Angeles, Robert P. Dockeray, Los Angeles, of counsel, for appellant.
Bauder, Gilbert, Thompson & Kelly, Los Angeles, for respondent.
Plaintiff appeals from a judgment for defendants, entered upon the verdict of a jury, in an action for damages for personal injuries sustained by plaintiff when he stepped on and fell through a scaffold erected and maintained by the defendant, Stone & Webster Engineering Corporation. Plaintiff was a workman in the employ of a sub-contractor on a building project of which defendant was the general contractor. It was charged that the scaffold was erected in a negligent manner, with the result that when plaintiff stepped upon the scaffold it collapsed.
Appellant presents the following assignments of error:
'(1) The court and respondent committed misconduct in bringing to the attention of the jury the fact that appellant was entitled to receive workmen's compensation benefits.
'(2) The court erred in refusing to instruct the jury upon the subject of what constitutes an invitee.
'(3) The court erred in instructing the jury upon the subject of contributory negligence when there was no evidence sufficient to justify such an instruction.
'(4) The court committed error in refusing certain instructions requested by appellant on the subject of res ipsa loquitur.
'(5) The court erred in instructing the jury on the subject of imputed negligence without at the same time giving plaintiff's requested instruction on defendant's continuing duty.
'(6) The court erred in instructing the jury with respect to an unavoidable or inevitable accident.
'(7) The verdict of the jury is contrary to the evidence.'
The admission of evidence concerning the receipt of workmen's compensation benefits by the plaintiff came about in the following manner: On direct examination of a medical expert testifying on behalf of the plaintiff, the witness, in describing certain measures taken in the treatment of plaintiff, said, 'And, incidentally, I remember distinctly calling the insurance company for a consultant in chest diseases and a Dr. Robinson was sent out, * * *.' On cross-examination of the witness by defendant's counsel, the following occurred:
'Mr. Sokol (Plaintiff's attorney): Object to that as incompetent, irrelevant and immaterial; prejudicial.
'The Court: Objection overruled.
'Mr. Sokol: Object to that, formal objection, your Honor, under the Dodds v. Liberty Mutual case, 1 decided by the Supreme Court, and move that the jury be admonished to disregard any reference to it.
'The Court: Well, I will now instruct the jury as was intimated by counsel at the outset of this case, that the fact that there may be insurance involved on behalf of any party to this action has nothing to do with the issue we are trying here.
'Mr. Bauder: That is correct, your Honor.
'Mr. Bauder: Not at all.
'Mr. Sokol: In fairness, your Honor, I move that under Dodds v. Liberty Mutual I have to ask your Honor to----
* * *.'
Thus the record shows that the question of insurance was first injected into the trial (aside from whatever intimations in that regard were made by counsel as indicated in the court's remarks above quoted) by the statement of plaintiff's own witness that he had called 'the insurance company' for a consultant, a statement that might well be deemed prejudicial to the defendant. Defendant's counsel thereupon sought to bring out that the insurance company referred to was not an insurer of defendant but the compensation insurance carrier of plaintiff's employer. Then, after the colloquy between court and counsel and the court's statement, hereinabove quoted, the matter was apparently dropped, and, so far as the record discloses, plaintiff made no further request that the court give to the jury any further instruction or admonition on the subject.
The average reasonably well-informed person who may be called to serve upon a jury knows that a workman injured in his employment receives compensation. It is a delusion to think that this aspect of the case can be kept from the minds of the jurors simply by not alluding to it in the course of the trial. It is better that the jurors be full instructed as to the law--that the plaintiff should be fully compensated according to the rules for ascertaining his damages without regard to compensation he may have received, since the insurance carrier who paid his compensation will be reimbursed out of his judgment--than that the jurors, knowing that the plaintiff has received some compensation, but not knowing or being uncertain as to the law applicable, should be left to speculate in the jury room as to the effect of their verdict.
So here, under the circumstances presented by the record, the plaintiff would have been entitled to have the court instruct the jury as was done in Adams v. Southern Pacific Co., 82 Cal.App.2d 560, 564, 565, 186 P.2d 729. In that case the trial court explained to the jury that the insurance carrier had paid compensation to the plaintiffs; that it had a first lien upon any judgment recovered (Labor Code, secs. 3850-3863), and that therefore the jury, in assessing the damages, should not deduct any amounts received by the plaintiffs from the insurance carrier.
However, as heretofore noted, no request for an amplified instruction on the subject of compensation was made. The plaintiff cannot now assert prejudicial error with reference to the court's statement to the jury when he failed to offer such instructions as he deemed proper. Had suitable instructions been requested, undoubtedly they would have been given, but the plaintiff apparently...
To continue reading
Request your trial-
Akins v. Sonoma County
...such additional clarifying instructions, he cannot now urge error in the giving of this instruction. (Sherrillo v. Stone & Webster Eng. Corp., 110 Cal.App.2d 785, 789, 244 P.2d 70, James v. Myers, 68 Cal.App.2d 23, 29, 156 P.2d 69; Wirthman v. Isenstein, 182 Cal. 108, 110-111, 187 P. 12; To......
-
Butigan v. Yellow Cab Co.
...and that the unavoidable accident instructions merely stated absence of negligence in another manner. Sherrillo v. Stone & Webster Eng. Corp., 110 Cal.App.2d 785, 244 P.2d 70; Smith v. City & County of San Francisco, 117 Cal.App.2d 749, 256 P.2d 999; Hooper v. Bronson, 123 Cal.App.2d 243, 2......
-
Woodcock v. Fontana Scaffolding & Equipment Co.
...254, 265, 255 P.2d 863; see Eckman v. Arnold Taxi Co., 64 Cal.App.2d 229, 235, 148 P.2d 677; cf. Sherrillo v. Stone & Webster Eng. Corp., 110 Cal.App.2d 785, 789--790, 244 P.2d 70; Huber v. Henry J. Kaiser Co., 71 Cal.App.2d 278, 285, 162 P.2d 693.)5 In considering the motion to reduce the ......
-
Stoddard v. Rheem
...appeal] because of the failure of the trial court to give more specific or enlarged instructions.' Sherrillo v. Stone & Webster Eng. Corp., 110 Cal.App.2d 785, 789-790, 244 P.2d 70, 73. See also Jones v. Regan, 169 Cal.App.2d 635, 641, 337 P.2d 889; Whitford v. Pacific Gas & Elec. Co., 136 ......