Wagner Electric Corporation v. Snowden

• Decision Date: 06 February 1930
• Docket Number: No. 8654.,8654.
• Citation: 38 F.2d 599
• Parties: WAGNER ELECTRIC CORPORATION v. SNOWDEN.
• Court: U.S. Court of Appeals — Eighth Circuit

38 F.2d 599 (1930)

WAGNER ELECTRIC CORPORATION v. SNOWDEN.

No. 8654.

Circuit Court of Appeals, Eighth Circuit.

February 6, 1930.

James R. Claiborne, of St. Louis, Mo. (John W. Joynt and Bishop & Claiborne, all of St. Louis, Mo., on the brief), for appellant.

Jesse T. Friday, of St. Louis, Mo. (Harry Felberbaum, of St. Louis, Mo., on the brief), for appellee.

Before STONE and GARDNER, Circuit Judges, and MILLER, District Judge.

GARDNER, Circuit Judge.

This is an action for damages on account of personal injuries by way of occupational disease claimed to have been contracted by the plaintiff, appellee here, as the result of the negligent failure of the defendant to furnish him with a reasonably safe place in which to work. Plaintiff recovered judgment in the sum of $5,000, and defendant has appealed. No issue is raised as to the pleadings, and the issues are sufficiently disclosed in the opinion.

The answer was in the nature of a general denial, with certain unimportant admissions, and contained an affirmative defense of assumption of risk on the part of the plaintiff.

On this appeal by the defendant, error is assigned in permitting counsel for plaintiff to inquire, during the voir dire examination of prospective jurors, whether any of them owned any stock or bonds of, or were connected with, or knew any of the officers or employees of the American Mutual Liability Insurance Company of Boston. Counsel for plaintiff, outside of the hearing of the prospective jurors and in the presence and hearing of the court, called upon counsel for defendant to state whether or not any insurance company was interested in the defense in this action, and, if so, the name of the company; whereupon counsel for defendant answered, "Yes, the American Mutual Liability Insurance Company of Boston is on this risk." Counsel for plaintiff then interrogated the prospective jurors generally, as follows: "Gentlemen, I will ask you whether any of you own any of the stock or bonds of the American Mutual Liability Insurance Company of Boston?" This was objected to, and the objection overruled, and an exception saved. Counsel for plaintiff asked the further question, "Are any of you gentlemen in any way connected with that company?" This question was likewise objected to, and the objection overruled, and an exception saved. Counsel for plaintiff then asked, "Do you know any officer or employee of that company?" This also was objected to, the objection overruled, and an exception saved. No juror indicated that he held any of the stock or bonds of this company, or was in any manner connected with the company, or knew any of its officers or employees.

In support of appellant's contention, the case of Stewart v. Brune (C. C. A.) 179 F. 350, is cited as controlling. In the Stewart Case, counsel for plaintiff, without laying any foundation for the questions to be asked, and without any apparently reasonable cause to believe that the insurance company mentioned was interested in the defense of the case, asked a juror whether the company by whom he was employed was insured by the Ocean Insurance Company. There was nothing before the court to show that the Ocean Insurance Company was interested, directly or indirectly, in the result of the trial. An entirely different state of affairs obtains in the instant case. Here counsel for plaintiff, outside of the hearing of the prospective jurors and in the presence and hearing of the court, called upon counsel for defendant to state whether or not any insurance company was interested in the defense of this case, and, if so, to name the company. Counsel might have declined to answer this inquiry, and, had he done so, certainly the jurors could not have been prejudiced by the inquiry. He, however, voluntarily and frankly answered that the American Mutual Liability Insurance Company of Boston was so interested. Following this, counsel for plaintiff asked only the above-noted two or three general questions of all prospective jurors.

We are of the view that the questions appear to have been asked in good faith and for the purpose of ascertaining the fitness of the prospective jurors and proper foundation was laid for such inquiry. We do not think anything said in the opinion of this court in Stewart v. Brune, supra, is controlling or applicable to the facts presented in this case. If, as appeared in this case, the insurance company was interested in the defense, it would seem to be proper, where good faith is shown, to permit inquiry as to whether or not any of the prospective jurors were interested in that company or acquainted with any of its agents or employees. New Ætna Portland Cement Co. v. Hatt (C. C. A.) 231 F. 611; Eppinger & Russell Co. v. Sheely (C. C. A.) 24 F.(2d) 153; Connors v. United States, 158 U. S. 408, 15 S. Ct. 951, 39 L. Ed. 1033. There was no abuse of discretion in permitting counsel to ask these questions.

Assignments 2, 3, 4, 5, 6, and 7 allege error in the ruling of the court in the admission of testimony. These assignments wholly fail to comply with rule 11 and rule 24 of this court, which provide that, when the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. In none of these assignments is the substance of the evidence admitted or rejected set out. Neither do the assignments show what objections were interposed. It is commonplace to state that the alleged error assigned must be sufficiently specific so that the court may understand the same without being forced to search the record to determine what the issue is. Grape Creek Coal Co. v. Farmers' Loan & T. Co. (C. C. A.) 63 F. 891; Piper v. Cashell (C. C. A.) 122 F. 614; Deering Harvester Co. v. Kelly (C. C. A.) 103 F. 261; Haldane v. United States (C. C. A.) 69 F. 819; Northwestern S. B. & Mfg. Co. v. Great Lakes E. Works (C. C. A.) 181 F. 38; Bandy v. United States (C. C. A.) 245 F. 98; Federal Surety Co. v. Standard Oil Co. (C. C. A.) 32 F.(2d) 119; Lahman v. Burnes Nat. Bank (C. C. A.) 20 F.(2d) 897; Robinette v. Sidener (C. C. A.) 33 F. (2d) 37. These rules must be observed, and, as was said by this court as early as Haldane v. United States (C. C. A.) 69 F. 819, 821: "We have invariably held that we would not consider alleged errors in the admission and exclusion of evidence unless the testimony that is claimed to have been erroneously admitted or excluded is set out substantially in the assignment of errors and in the brief, as required by rules 11 and 24 of this court." We must therefore decline to pass upon these alleged errors in the admissibility of evidence.

By assignment No. 12, defendant challenges the ruling of the court in denying its motion for a directed verdict made at the close of all the testimony. This requires a consideration of the evidence for the purpose of determining whether or not there is substantial evidence sustaining the verdict. It is challenged in two particulars: (1) That it fails to show that the vapors and gases arising from the sulphuric acid gases in the vats were poisonous; and (2) that it fails to show that the tuberculosis from which plaintiff was confessedly suffering was caused thereby. The plaintiff having alleged in his petition that the vapors and gases arising from these vats were poisonous, it is the claim of the defendant that this presented a scientific chemical question which could be answered only by those qualified as chemists to speak expertly on the subject, and that, no such testimony having been produced by the plaintiff, and the defendant having produced testimony to the contrary, there was a failure of proof. The important thing with reference to these vapors and gases was not whether or not they were considered chemically poisonous, but whether they were injurious and dangerous to health when inhaled. It is specifically alleged in the petition that plaintiff's disease was superinduced by reason of being required to inhale these vapors and gases. It is not material that they were described by the plaintiff as being poisonous, and it is apparent that the term as used was intended to charge that the gases and vapors when inhaled injuriously affected the throat and lungs of the plaintiff, and in that sense they were poisonous. It is doubtless true that only a chemist can testify as to the chemical properties of a gas arising from diluted sulphuric acid when heated by the injection of steam, but it cannot be said that one who sees, smells, and breathes such gases and fumes, and experiences burning of the eyes, nose, throat, and chest therefrom, and after a week or so of such experience still has a burning sensation in his chest when away from work, cannot testify that there is a gas which arises under such conditions and which caused these results.

It is urged that these gases were not shown to be poisonous within the meaning of section 6818, Revised Statutes of Missouri for 1919, hereinbefore referred to. The preceding section 6817 requires employers to adopt and provide approved and effective devices, means, or methods for the prevention of such industrial or occupational diseases as are incident to such work, trade, or process. The testimony in this regard amply sustains the harmful effect of this gas and brings it clearly within the meaning of these statutes.

Was there substantial evidence tending to prove that the inhalation of these gases was the proximate cause of plaintiff's tubercular condition? It is admitted that the plaintiff is tubercular, but it is contended that this disease was contracted from other sources. It is therefore necessary to consider the evidence introduced by the plaintiff on this question. Near the vats described in the petition was a suction fan installed in the wall of the building, so as to draw off the gases and fumes arising from the heating of a sulphuric acid mixture by means of the injection of steam, but in the early part...