Spinney's Adm'x v. O. V. Hooker & Son

• Decision Date: 02 October 1917
• Citation: 102 A. 53
• Court: Vermont Supreme Court
• Parties: SPINNEY'S ADM'X v. O. V. HOOKER & SON.

102 A. 53

SPINNEY'S ADM'X

v. O. V. HOOKER & SON.

Supreme Court of Vermont. Caledonia.

Oct. 2, 1917.

Exceptions from Caledonia County Court; Frank L. Fish, Judge.

Action by Edward J. Spinney's administratrix against O. V. Hooker & Son. Judgment for plaintiff, and defendant brings exceptions. Reversed and remanded.

Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ.

Porter, Witters & Harvey, of St. Johnsbury, and F. S. Rogers, of North Troy, for plaintiff. John W. Redmond, of Newport, and Charles H. Darling, of Burlington, for defendant.

POWERS, J. This is a common-law action for negligence brought by the administratrix of Edward J. Spinney, who was electrocuted while at work for defendant in its foundry. It was a part of Spinney's duties to line the cupola with moist clay preparatory to melting iron therein. This cupola was of iron or steel, and stood upon legs high enough to enable a man to crawl under it. It had a metal floor, through the center of which was an oval manhole with an iron cover. When called upon to Hue the cupola, Spinney would crawl under it, remove the cover of the manhole, and lay it on the ground. He would then stand up in the manhole, his feet resting on the iron cover, and coat over the inside of the furnace part of the cupola with the soft clay, using his bare hands for the purpose. There was a slag hole in the back side of the cupola, and the clay had to be pressed around an iron pipe therein; and this was usually the last thing done in the process. In order to do this work, it was necessary to have the inside of the cupola lighted in some way. So the defendant furnished an electric light for that purpose. This was attached to an ordinary extension cord which plugged in to a socket in the room above, and when it was in use was let down into the cupola through the feed door and hung against the side of the cupola. This light was turned on and off by the usual hard rubber key, and was in all respects like the lamp in common use. The current which supplied this lamp came from an electric plant owned and operated by the defendant located just across the river from the foundry. The day before Spinney met his death, he was directed to line up the cupola, and he proceeded to do so, using the electric light as usual. He finished this work, except the slag hole, and turned off the light and quit for the day. It had been raining for several days, and it rained all that night. The next morning Spinney went to work in the rain without protection, and got his feet and clothing very wet He was directed to finish the cupola, and entered it to do so. Soon after his lifeless body was found there under circumstances warranting the inference that he was electrocuted when he turned on the electric light. After his body had been removed, it was discovered that the insulation was gone from the wires entering the socket of this lamp for a distance of one-fourth of an inch. The system which supplied the current to the foundry was a three-phase system, and the case shows that one of the three wires must have been grounded at the time of the accident to enable Spinney to get a fatal shock from the wires supplying the lamp. The case also shows that, if the wires had been properly insulated, the ground would not have caused the accident.

During the examination of the jurors, and when counsel were at the bench, one of the attorneys for the defendant informed the court that his client had a liability policy in the American Fidelity Company of Montpelier, and he asked for an exception in advance to any inquiries that might be made by the plaintiff's counsel which involved that company. Such an exception was not granted, but counsel were cautioned by the court, regarding the matter. Afterwards, counsel for the plaintiff asked the jurors if any of them were stockholders in the American Fidelity Company of Montpelier, and, when counsel for the defendant objected and claimed an exception, replied that "evidence in this case as already put upon the record is that this company is interested in this case"; and after some discussion, and after the question was repeated, an exception was allowed, which exception, we take it from the whole record, was intended to cover both the question and the statement.

The questions raised by this exception have caused the courts no little perplexity and have resulted in some confusion and loose statements in the cases. The simple fact is that no general rule has or can be formulated that will accurately apply to every ease. Much depends upon the good faith of counsel. That a litigant is entitled to a trial before an impartial and disinterested jury is fundamental. He must be given a reasonable opportunity to secure such a panel. He cannot do this unless he is given a reasonable measure of latitude in ascertaining who the jurors are and what their relations and affiliations are. This, however, must be accomplished, so far as possible, without prejudicing the jurors against the adverse party. In the case in hand an insurance company was the real defendant. Its stockholders and officers were legally disqualified to sit in the case, and its agents and servants subject to challenge in the discretion of counsel. It was proper to bring these facts to the attention of the court; but it was improper and unnecessary to baldly announce the facts in the hearing of the jury. It is possible in such cases for an attorney, who is acting in good faith and with a proper regard for the rights of his adversary, to elicit all necessary information without disclosing to the jurors the reason prompting his inquiries. And without attempting to mark out a definite course to be pursued, which might be a difficult undertaking, we hold that counsel here overstepped the bounds of fair and legitimate practice, and sustain the exception.

The plaintiff called F. B. Hooker, manager of the defendant, as a witness, and in connection with his testimony was allowed, subject to exception, to put in evidence a written report of this accident made by him on the day it took place to some undesignated person or corporation. Counsel agree that this report was made to the American Fidelity Company, and we so treat it. Though reports of this character were held to be admissible in Roche v. Llewellyn Iron Works Co., 140 Cal. 563, 74 Pac. 147, and Sibley v. Nason, 196 Mass. 125, 81 N. E. 887, 12 L. R. A. (N. S.) 1173, 124 Am. St. Rep. 520, 12 Ann. Cas. 938, this one was inadmissible. If it was evidence at all, it was in the nature of an admission, and the question involved is quite like one of agency. Whatever an agent says or does in the execution of his agency is admissible against his principal: Austin v. Chittenden, 33 Vt. 553. But unless it appears that the agent was then acting within the scope of his agency, his statements or admissions are not so admissible. Polsom v. Underbill, 36 Vt. 580; Hardwick S. B. & T. Co. v. Drenan, 72 Vt. 438, 48 Atl. 645; Taplin & Rowell v. Marcy, 81 Vt. 428, 71 Atl. 72; Blunt v. M. & W. R. R. Co., 89 Vt. 152, 94 Atl. 106. Declarations of an officer or agent, not of an official character, or not connected with acts of agency, and not, therefore, a part of the res gestae, are mere hearsay and inadmissible. 1 Elliott, Ev. § 254. The foundation for the receipt of this report was not laid. How or why it was made does not appear. The purpose it was expected to serve is not shown. The plaintiff argues that this report was made for the purpose of bringing in the Fidelity Company to defend the suit, that company having insured the defendant, and that it was made pursuant to a requirement of the policy. But all this is outside the evidence. The fact that counsel informed the court that the American Fidelity Company was an insurer of the defendant did not afford evidence of that fact before the jury, and does not and the plaintiff in her present claim. It is true that Mr. Hooker testified that he made the report as a part of his duties as manager; but this was subject to objection and exception. The fact stated obviously depended upon other facts not in evidence, and was a conclusion drawn by the witness therefrom. All he could lawfully do was to state the facts and let the jury determine his authority in the matter. The official character of the report was therefore improved, and it stood as a mere personal statement, inadmissible because hearsay.

Moreover, the only statement contained in it of any consequence in the case is that the insulation of the cord was worn off about a quarter of an inch just above the socket. If Mr. Hooker had merely stated that the insulation was found to be gone for the distance specified, the whole paper would have been harmless. For all agreed that such was the fact. But there were two theories as to how this happened. The plaintiff claimed that it was worn off by the use of lamp, and the defendant claimed it was burned off at the time of the accident. The statement in the report corroborated the plaintiff's theory. But no one knew how this was. It was all a matter of opinion. And .Mr. Hooker's statement in the report was merely his opinion or luference regarding it. It is one of the requisites of the rule that, in order for an agent to bind his principal by a statement or admission, his declaration must be one of fact. His opinions, inferences, conclusions, and judgments are ordinarily to be rejected. 2 Chamb. Ev. § 1342; Boston '& Maine Railroad v. Ordway, 140 Mass. 510, 5 N. E. 627; Oh. & Miss. R. Co. v. Stein, 133 Ind. 243, 31 N. E. 180, 32 N. E. 831, 19 L. R. A. 733; Mustain v. Williams, 7 Ky. Law Rep. 828; Warner v. Maine Central R. Co., Ill Me. 149, 88 Atl. 403, 47 L. R. A. (N. S.) 830; American T. & L. Co. v. Baker-Whiteley Coal Co., 111 Md. 504, 75 Atl. 341. Any...