Strandholm v. General Const. Co.
| Decision Date | 12 June 1963 |
| Citation | 382 P.2d 843,235 Or. 145 |
| Parties | Lloyd STRANDHOLM, by his guardianad litem, Ingrid Strandholm, Respondent, v. GENERAL CONSTRUCTION COMPANY, a corporation, Appellant, and MacWhyte Company, a corporation, American Sheet Metal Works, Inc., a corporation, James & Honey, doing business as James & Honey Engineers, a co-partnership, Gunderson Bros. Engineering Corporation, a corporation, Defendants. |
| Court | Oregon Supreme Court |
Leo Levenson, Portland, argued the cause for appellant. With him on the briefs were William H. Poole, and Phillips, Poole & Dooley, Portland.
Philip A. Levin, Portland, argued the cause for respondent. With him on the brief were Frank Pozzi, and Pozzi, Levin & Wilson, Portland.
Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.
Plaintiff, a longshoreman, was injured as a result of the collapse and fall of a large marine boom at a place where paintiff was then employed. Defendant-appellant, General Construction Company, was not plaintiff's employer. Prior to the accident defendant had remodeled the boom; installed the boom in its place of use and rerigged the lines and gear necessary for the operation of the boom. Plaintiff claimed that defendant had negligently done so. The jury returned a verdict for defendant. The trial court thereafter sustained plaintiff's motion for a new trial. Defendant appeals. Other defendants were involved in the trial of the case but were eliminated on motion for nonsuit. This appeal is a contest only between plaintiff and General Construction Company and they will be referred to as plaintiff and defendant.
Another of the assignments of error brought here is that the court should have allowed defendant's motion for a directed verdict. A statement of the facts is necessary to clarify this and other issues presented on this appeal.
At the time of the accident plaintiff was employed by the Louis Dreyfus Company, an importer and exporter of grain. A part of the facilities of Dreyfus Company was a dock where grain was loaded and unloaded from barges and ships. The latter process was accomplished by use of the boom in question. The boom, at the lower end thereof, was secured to the base of a mast. The top of the boom was rigged to the top of the mast by lines which permitted the boom to be raised and lowered in the usual way. These lines and rigging consisted in part, of course, of large blocks through which the lines were passed. The raising and lowering of the boom was controlled by drums and brakes to which the lines extended. The boom was used to raise, lower and control a large device designated as a marine leg. By use of the boom the marine leg was lifted into and out of the holds of the ships and barges and the marine leg moved the grain in or out of the hold of the ship or barge.
Several months prior to the accident the Dreyfus Company caused the boom and mast to be substantially lengthened. Designs for this alteration in the boom and mast were prepared by an engineering concern. Defendant contracted to install the boom, mast and rigging after the boom and mast were enlarged. There was evidence to show that defendant had the responsibility to inspect the pre-existing gear and rigging and, upon installation of the altered boom and mast was either to utilize that which had been used before or install different equipment. Defendant completed the alteration of the boom and mast and did install all of the rigging necessary for its operation. It should be obvious that this gear was intended to accommodate loads of several tons in weight.
The part of the rigging with which we are immediately concerned was a block at the top of the boom. Lines which passed through this block to the top of the mast controlled the raising and lowering of the boom. This block was secured to the end of the boom by the use of a pin. The pin was described as being about five inches long and about an inch or an inch and a quarter in diameter. There were flanges or 'cheeks' on each side of the block and the pin secured the block to the mast by the common means of inserting the pin through holes in these flanges or 'cheeks' of the block and through a hole of a similar flange fastened to the top of the boom. One end of the pin had a flat head which secured it in place. The other end of the pin was secured with a cotter key.
The block and pin were a crucial part of the installation. The method of their installation presents the key issue in this case. Plaintiff had alleged, and presented evidence to show, that the accident was caused when this pin failed to remain in place and that when the pin came out of place it caused the collapse of the boom. Plaintiff's evidence could be said to establish that the use of a cotter key to secure the pin was inadequate and negligent. The evidence would also show that by proper rigging the pin should have been secured by the use of a castellated nut and that the castellated nut should then have been secured by a cotter key. The accident occurred about six months after defendant had completed its work on the boom.
To complete the story of the accident it should be mentioned that plaintiff was not injured by the fall of the boom itself. He was caught by one of the writhing lines and thrown to the lower deck of a barge which was being unloaded at the time. There could be no question but that the fall of the boom was the cause of his injury. In fact, we think that the evidence, above mentioned, was sufficient to factually establish a jury question as to negligence on the part of defendant. The real problem presented by the motion for directed verdict is a legal one. Most directly stated the question is: Will this court apply the doctrine of MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, to the relationship existing between these parties at the time of the accident? We think the answer is yes. But before we discuss our reasons therefor it is necessary to consider the reason assigned by the trial court for the grant of a new trial. If that reason is insufficient the case would end at that point.
Both Dreyfus Company and plaintiff, at the time of the accident, were subject to the Longshoreman's and Harbor Workers' Compensation Act. (33 U.S.C.A. § 901 et seq.) Plaintiff received compensation accordingly. Both before and during the long trial the trial court had specifically admonished defense counsel that no mention should be made to the jury that plaintiff had received compensation. Nevertheless, defendant did. When defendant was presenting its case it called as a witness one Mr. Gilpin, the Assistant General Manager of defendant. One of the hotly contested issues in the trial of the cause was created by the loss, before trial, of the critical pin we have before described. When Mr. Gilpin was being examined in respect to this issue he gave the following testimony:
'Q [By defendant's attorney] Do you know the pin that I have reference to?
'A Yes.
'Q Mr. Gilpin, now, did you have occasion to see that pin again subsequent to this date of October 9?
'A Yes, I did.
'Q When did that occur?
'A That occurred when the Dreyfus compensation insurance carrier and Mr. Aanderud came to our office.'
Plaintiff's counsel immediately asked for a conference in chambers. The conference was had. In chambers Mr. Gilpin was further examined and gave this testimony:
Q (By plaintiff's attorney) 'You didn't know it of your own personal knowledge, did you?
A 'No.
Q 'Who told you to say this on the witness stand, what you just said?
A 'Our attorneys.'
No denial was made as to the truth of that statement.
It is clear from the above that improper evidence was wrongfully injected into the case. It was done deliberately not only by defendant's counsel but by defendant itself. However, at that time plaintiff declined to move for a mistrial. The case proceeded to the conclusion before mentioned.
Later, in response to the plaintiff's motion for a new trial, the court ruled: '* * * Being of the opinion that there was misconduct and irregularity in the proceedings on the part of defendant General, which was prejudicial and prevented plaintiff from receiving a fair trial, * * *' a new trial was ordered. It might be well to add here that the alert trial judge saw fit to reproach defendant's counsel for other conduct engaged in during the trial.
The difficult decision is caused by plaintiff's failure to move for a mistrial. Did he waive the right to claim error? In a long line of decisions beginning with Tuohy v. Columbia Steel Co., 1912, 61 Or. 527, 122 P. 36, this court has held that it will not disturb the trial court's exercise of discretion when a new trial or mistrial is allowed for the deliberate injection of insurance into the trial of a case. Rosumny v. Marks, 1926, 118 Or. 248, 246 P. 723; Wells v. Morrison et al., 1927, 121 Or. 604, 256 P. 641; Bennett v. City of Portland, 1928, 124 Or. 691, 265 P. 433, and more currently in Guthrie v. Muller, 1958, 213 Or. 436, 325 P.2d 883. The doctrine is so well established that reference to other cases is not necessary. We think those cases are apposite here. If a mistrial had been asked for and allowed no one could possibly have questioned the trial court's authority to do so. As indicated, we are more concerned by the failure of plaintiff to demand a mistrial.
However, an examination of our cases shows that a party does not irretrievably lose his right to move for a new trial by failure to act when the error occurs. In Neal v. Haight, 1949, 187 Or. 13, 32, 206 P.2d 1197, 1205, the court, by Justice Brand said:
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