Stewart v. Brune

• Citation: 179 F. 350
• Decision Date: 27 April 1910
• Docket Number: 3,112.
• Parties: STEWART et al. v. BRUNE.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

179 F. 350

STEWART et al. v. BRUNE.

No. 3,112.

United States Court of Appeals, Eighth Circuit.

April 27, 1910

Percy Werner (Seneca N. Taylor, on the brief), for plaintiffs in error.

D. D Holmes (Benj. J. Klene, on the brief), for the defendant in error.

Before SANBORN, Circuit Judge, and RINER and WM. H. MUNGER, District judges.

RINER District Judge.

This was an action brought by the defendant in error, hereafter called the plaintiff, against the plaintiffs in error hereafter called the defendants, to recover damages for personal injuries alleged to have been sustained by the plaintiff on or about the 5th day of December, 1907.

The defendants were contractors, and at the date of the injury complained of by the plaintiff were engaged in the erection of a building at the northeast corner of Broadway and Pine streets, in the city of St. Louis. In the erection of this building they were using what is designated in the record as a 'guyed derrick' for the purpose of lifting and moving material and pulling up piling. The upright mast of the derrick was about 80 feet high, and a boom about 70 feet long was connected to said mast at its base, together with the usual pulleys and the usual fall and boom lines. The derrick was held in an upright position by means of four steel guy lines. These guy lines were each fastened at one end in a separate eyebolt at the top of the mast, the other end of the guy lines being anchored to the ground about 63 feet from the base of the derrick, and in such directions therefrom as to hold the mast in a perpendicular position. The derrick was operated by means of a steam engine. The plaintiff was the engineer and was in charge of the engine at the time he received the injuries of which he complains. While the derrick was being used for the purpose of drawing out sheet piling, or boards, which had been placed in an upright position in a trench as a mold for concrete, one of the eyebolts at the top of the mast broke and the derrick fell to the ground, something, supposedly the guy line striking the plaintiff and injuring him. The eyebolt which broke was made of 1 1/2 inch steel and the breakage revealed a clean surface without flaw or weld.

The testimony shows that the derrick was a new one, of approved type, and manufactured by a reputable firm; that the use to which it was being put was a usual, ordinary, and appropriate one; that the derrick was sound in all its parts, and had been carefully inspected before being set up for use at the place where the accident occurred; that it was designed to raise twelve tons with four guy ropes. The method employed in taking out these sheet piling was to fasten a chain, attached to the boom, around the upper end of the piling, start the engine, and pull the piling out. If after taking a pull on the piling it did not come out, it was cut off and left in the ground. The record shows that prior to the time of the accident the men operating the derrick had in the manner just described taken out 60 or 70 of these piling. The plaintiff testified that he was a licensed engineer and derrick operator, and had been engaged in that employment for several years prior to the time of the accident. The negligence charged in the petition is that the derrick, 'as constructed, erected, and maintained was dangerous and unsafe for the purpose for which it was being used in the erection of said building by reason of the said guy ropes and the said eyebolts by which it was secured being of an insufficient number and strength. ' The answer of the defendant consisted of a general denial, and an allegation of contributory negligence.

In reply the plaintiff admits that the derrick at the time of the accident was being subjected to more than the usual strain. The averment is as follows:

'Plaintiff alleges that it is true, however, that said derrick, guy ropes, and eyebolts, as constructed, erected, and maintained, were being subjected to a greater strain than they were calculated to sustain, and further avers that plaintiff did not know at the time, nor by exercise of ordinary care could have known, that said derrick guy ropes and eyebolts, as constructed, erected, and maintained, were being subjected to a greater strain than they were designed and calculated to sustain.'

At the trial, counsel for the plaintiff, while conducting the examination of the jury on voir dire, propounded the following questions to a juror:

'Q. Does your firm carry any insurance in the Ocean Liability Insurance Company? A. Not that I know of. I don't know what insurance the firm carries.

'Q. Would the fact that the Ocean Insurance Company, if such should be the fact, was the real defendant in the case, and the one who was defending, make any difference in case your company was insured by them?'

This question was objected to by counsel, and the court said:

'I am not able to say as to that. He asked the question whether or not he has any connection with the company mentioned, whether that fact would have any effect upon him if he did. That is the question.'

Counsel for the defendant then stated that his objection was directed to the last question, and the court further remarked:

'The court will hold that this question, whether this concern mentioned by the counsel for plaintiff has insured the men in the employ of this defendant, may be asked. * * * Counsel had better state right here whether or not this company that has been mentioned-- what is the name?

'By Counsel for Plaintiff: I don't know the full name. It is commonly known as 'The Ocean Insurance Company.'

'By the Court: If counsel desires, they may state whether the Ocean Insurance Company is interested in this suit or not.'

Counsel having declined to make any statement on the ground that it was immaterial, the court further said:

'Then the question may be asked, and answered. Here is a matter that in my judgment is perfectly proper to be inquired about. This man has sued Stewart & Co., and if Stewart & Co. are carrying insurance in that company, the Ocean Insurance Company, and the Ocean Insurance Company is ultimately interested in that matter, whether they are parties to the suit or not, inquiry may be had as to the connection they have, inasmuch as counsel have declined to say whether they have or not, I will permit the inquiry.'

These several questions by counsel and rulings by the court were properly excepted to and are assigned as errors.

Under the issues formed by the pleadings, and in view of the answer of the juror to the first question, the purpose of the second question is we think at once apparent. It was well calculated, as suggested by the Supreme Court of Illinois in McCarthy v. Spring Valley Coal Company, 232 Ill. 473, 83 N.E. 957: 'To intimate strongly to the jury that the appellant was insured against liability for accidents of this character and that the party who would have to respond for any judgment which might be rendered was the insurance company. ' Chybowski v. Bucyrus Co., 127 Wis. 332, 106 N.W. 833, 7 L.R.A. (N.S.) 357; Howard v. Beldenville Lumber Co., 129 Wis. 98, 108 N.W. 48.

The question whether or not the defendants were insured was wholly foreign to the...