Wilson v. Joe Boom Co., Ltd.

• Decision Date: 30 July 1921
• Parties: ROBERT W. WILSON, Respondent, v. ST. JOE BOOM COMPANY, LTD., a Corporation, Appellant
• Court: Idaho Supreme Court

200 P. 884

34 Idaho 253

ROBERT W. WILSON, Respondent, v. ST. JOE BOOM COMPANY, LTD., a Corporation, Appellant

Supreme Court of Idaho

July 30, 1921

EXAMINATION OF JURORS ON VOIR DIRE-STATEMENT OF VICE-PRINCIPAL AFTER PERSONAL INJURY - WHEN ADMISSIBLE - MASTER CANNOT DELEGATE DUTY TO FURNISH SAFE PLACE AND APPLIANCES FOR SERVANT TO WORK - WHEN JUDGMENT FOR PERSONAL INJURIES NOT EXCESSIVE.

1. In a suit for personal injuries, evidence that the defendant carries casualty insurance is incompetent and immaterial; but counsel for plaintiff may be permitted on the voir dire examination to ascertain whether the jurors have any interest in the result of the litigation, although this may show such juror's connection with a casualty company, so long as the privilege is not abused or used as a subterfuge to communicate improper matter to the jurors.

2. In an action for personal injuries, a statement of fact by a vice-principal, that he had forgotten to warn the person injured of the dangerous character of his position, which resulted in the injury, made under such circumstances and so near the time of the injury as to be a part of the res gestae, is admissible.

3. Where the construction and manner of operating a tug- boat propelled by steam are such that the master must be presumed to know that it creates a latent danger to the employees or members of the crew engaged in its operation, after one employee has been injured by reason of such faulty construction or negligent manner of operating said boat, a statement of the captain that he had forgotten to warn the person injured of such danger is competent evidence in an action against the master, as the statement of a vice-principal made within the scope of his authority.

4. A motion for a nonsuit or directed verdict, on the ground of assumed risk, contributory negligence, or that the injury was caused by the act of a fellow-servant, is properly denied where it is shown that a steam tug is so constructed that the exhaust-pipe from the injector opens flush with the side of the boat, just under the guard, so that it is not readily observable, and plaintiff is injured, while in the discharge of his duty, by a scalding jet of steam turned on by the fireman.

5. Under such circumstances, the master cannot delegate his duty to provide the servant a safe place and safe appliances with which to work; the act of the fireman causing such injury is not the act of a fellow-servant, but of a vice-principal.

6. A verdict of $1,250 held not excessive where it is shown that respondent was scalded so that the bone of the leg was laid bare, that he was confined to the hospital for two weeks, and had not fully recovered at the time of the trial a year later, and that such injury had interfered with his earning capacity as a laboring man.

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Action for personal injuries. Verdict and judgment for plaintiff and defendant appeals. Affirmed.

Judgment affirmed, with costs to respondent.

Ralph S. Nelson, for Appellant.

The fact that a defendant was insured by a casualty company against injury of any kind of its employees is an immaterial matter and ought not to be permitted to go to the jury, and counsel ought not to be permitted to introduce any such evidence, for it is well recognized that it is only done for one purpose, and that is to prejudice the jury. (Steve v Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363; Iverson v. McDonnell, 36 Wash. 73, 78 P. 202; Cameron v. Pacific Lime etc. Co., 73 Ore. 510, Ann Cas. 1916E, 769, 144 P. 446; Putnam v. Pacific Monthly Co., 68 Ore. 36, Ann. Cas. 1915C, 256, 130 P. 986, 136 P. 835, 45 L. R. A., N. S., 338.)

"In an action for injuries to a servant, a statement made by plaintiff's foreman to a witness as to the cause of the accident, which was not a part of the res gestae, was inadmissible against the master as a statement against interest, although the foreman stood in the relation of a vice-principal." (The Maurice, 135 F. 516, 68 C. C. A. 228; Lee v. St. Louis, M. & S.E. R. Co., 112 Mo.App. 372, 87 S.W. 12; Richstain v. Washington Mills Co., 157 Mass. 538, 32 N.E. 908; Walker v. O'Connell, 59 Kan. 306, 52 P. 894; Baier v. Selke, 211 Ill. 512, 103 Am. St. 208, 71 N.E. 1074; Kamp v. Coxe Bros. & Co., 122 Wis. 206, 99 N.W. 366.)

While the employer can be held for the failure to furnish a reasonably safe place, it cannot be held for negligence in the operation of such a place or machinery. (Wiesner v. Bonners Ferry Lumber Co., 29 Idaho 526, 160 P. 647, L. R. A. 1917C, 328; Larsen v. Le Doux, 11 Idaho 49, 81 P. 600; St. Louis, I. M. & S. R. Co. v. Needham, 63 F. 107, 11 C. C. A. 56, 25 L. R. A. 833; 4 Labatt on Master and Servant, sec. 1520; 18 R. C. L., sec. 209; Wood v. Potlatch Lumber Co., 213 F. 591, 130 C. C. A. 171.)

"If it was an act pertaining only to the duty of an operative under such employment, the employee performing such act is a fellow-servant of his coemployee whatever his rank or grade may be, and in the latter case the master is not liable for an injury caused by the negligence of such employee." (Coulston v. Dover Lumber Co., 28 Idaho 390, 154 P. 636; Millett v. Puget Sound Iron & Steel Works, 37 Wash. 438, 79 P. 980.)

The fireman was a fellow-servant of the plaintiff, both under the rule as determined in Idaho as well as under the decisions of other states. (The Queen, 40 F. 694; The Victoria, 13 F. 43; The Ravensdale, 63 F. 624; Grimsley v. Hankins, 46 F. 400; Red River Line v. Cheatham, 60 F. 517, 9 C. C. A. 124; Hollis v. Widener, 228 Pa. 466, 139 Am. St. 1010, 21 Ann. Cas. 108, 77 A. 819; Moore v. Curran, 198 Mass. 60, 84 N.E. 113; Bergstrom v. Staples, 82 Mich. 654, 46 N.W. 1035.)

Jas. F. Ailshie and Wm. H. Bonneville, for Respondent.

Where an employer sets a servant to work at a place which may or will become dangerous at irregular periods and gives him no warning of the danger generally or of its approach, the employer will be held liable for an injury that results to the servant, and that duty cannot be delegated so as to avoid liability. (Illinois Steel Co. v. Ziemkowski, 220 Ill. 324, 77 N.E. 190, 4 L. R. A., N. S., 1161; Fill v. Cunard S. S. Co., supra; The Chicago, supra; Felice v. Central & Hudson R. Co., 14 A.D. 345, 43 N.Y.S. 922.)

While obeying orders of the captain of the boat, a lineman in making fast the boat at a landing has a right to assume that the boat will not eject hot steam on to him and injure him, and it is gross negligence of the master if such a thing is done. (Fill v. Cunard S. S. Co., 217 F. 84; The Chicago, 156 F. 374.)

Counsel for plaintiff in a personal injury action have an undoubted right to examine the jurors on their voir dire examination to ascertain whether they are associated with or working for any casualty insurance company or its attorney, where he has any reason to believe a casualty company is carrying insurance on the defendant company. (New Aetna Portland Cement Co. v. Hatt, 231 F. 611, 145 C. C. A. 497; Spoonick v. Backus-Brooks Co., 89 Minn. 354, 94 N.W. 1079; Goff v. Kokomo Brass Works, 43 Ind.App. 642, 88 N.E. 312; Putnam v. Pacific Monthly Co., 68 Ore. 36, Ann. Cas. 1915C, 256, 130 P. 986, 136 P. 835, 45 L. R. A., N. S., 338, L. R. A. 1915F, 782; Parkdale Fuel Co. v. Taylor, 26 Colo. App. 304, 144 P. 1138; Vindicator Consol. Gold Min. Co. v. Firstbrook, 36 Colo. 498, 10 Ann. Cas. 1108, 86 P. 313; Saller v. Friedman Bros. Shoe Co., 130 Mo.App. 712, 109 S.W. 794; Swift & Co. v. Platte, 68 Kan. 1, 72 P. 271, 74 P. 635; Dow Wire Works Co. v. Morgan (Ky.), 96 S.W. 530; M. O'Connor & Co. v. Gillaspy, 170 Ind. 428, 83 N.E. 738; Iroquois Furnace Co. v. McCrea, 191 Ill. 340, 61 N.E. 79; Hoyt v. Independent Asphalt Paving Co., 52 Wash. 672, 101 P. 367; Cripple Creek Min. Co. v. Brabant, 37 Colo. 423, 87 P. 794; Swift & Co. v. Platte, 68 Kan. 1, 72 P. 271, 74 P. 635.)

Time is not necessarily a controlling element or principle in the matter of res gestae. A remark or statement of fact within the personal knowledge of the party making it (and not the mere expression of opinion or judgment), which was called forth by the accident and is voluntary and spontaneous and made at the time or shortly after the occurrence, is part of the res gestae. (Coffin v. Bradbury, 3 Idaho 770, 95 Am. St. 37, 35 P. 715; State v. McGann, 8 Idaho 40, 66 P. 823; Anderson v. Great Northern Ry. Co., 15 Idaho 513, 99 P. 91; New York etc. Mining Syndicate & Co. v. Rogers, 11 Colo. 6, 7 Am. St. 198, 16 P. 719; Johnson v. State, 8 Wyo. 494, 58 P. 761; Augusta Factory v. Barnes, 72 Ga. 217, 53 Am. Rep. 838; 4 Chamberlayne's Modern Law of Evidence, p. 4412; City of Chicago v. Jarvis, 226 Ill. 614, 80 N.E. 1079; Spaulding v. Forbes Lithograph Mfg. Co., 171 Mass. 271, 68 Am. St. 424, 50 N.E. 543; Donovan v. ChaseShawmut, 201 Mass. 357, 87 N.E. 580; Galvin v. Brown & McCabe, 53 Ore. 598, 101 P. 671; Missouri P. Ry. Co. v. Neiswanger, 41 Kan. 621, 13 Am. St. 304, 21 P. 582.)

LEE, J. Rice, C. J., and Budge, McCarthy and Dunn, JJ., concur.

OPINION

LEE, J.

This was an action brought by respondent to recover $ 2,500 damages for personal injuries alleged to have been caused by reason of the negligence of appellant corporation in not furnishing and maintaining a reasonably safe place for respondent to work, and for failure to use reasonable care and precaution for his safety, whereby he was scalded by a jet of steam while in the performance of his duty and working under the direction and instruction of the master.

It is alleged that appellant owned, maintained and operated a tug-boat, propelled by steam, upon Coeur d'Alene Lake and St. Joe and Coeur d'Alene Rivers, in Kootenai and Benewah counties, for the...