237 F.2d 263 | 9th Cir. | 1956
The plaintiffs in this action were all employees of the defendant. Claiming that each of them severally suffered damages arising out of the same occurrence, or series of occurrences, alleged to have been brought about through a breach of duty on the part of the defendant, they joined in this one action their several claims, and each of them recovered judgment against the defendant. Defendant appeals.
Each of the plaintiffs was a plumber and all were employed by the defendant to work upon a construction job at a military base at a place called King Salmon, some eight miles from Naknek, Alaska. The prime contractor under the Government contract was Gaasland Construction Company. The defendant was subcontractor doing the plumbing and heating portion of the construction work. The contract of employment provided that these employees would be furnished housing or living facilities including board and meals while they were employed on this job.
Each separate cause of action alleged that the fire was caused by the negligence and breach of duty of the employer Plumbing and Heating Company. The evidence showed and the court found that the fire was started by an explosion occurring in a heating stove in the barracks building. The explosion, was caused by a certain “bullcook” employed to look after and attend to the fire. He negligently mixed gasoline with fuel oil which was fed into the stove. The stove was designed to burn fuel oil but the “bullcook” added the gasoline to the fluid in the hope that this would “stop the stove carboning up as they have been carboning up”. Each of the plaintiffs was left with nothing except the clothes he was wearing at the time of the explosion. The evidence further indicates that the “bull-cook” was an employee of Gaasland Construction Company, he being the person employed by the prime contractor to look after and take care of the living quarters. Appellant says that it cannot be liable for the person guilty of negligence was not its servant.
We think, however, that the trial court rightly held that the defendant Plumbing and Heating Company was responsible and liable for the damages suffered by these plaintiffs. As employer it owed to the plaintiffs the common law duty to provide its employees with a reasonably safe place to work and reasonably safe equipment and appliances in connection therewith. Ordinarily the employer’s duty in this connection has reference only to the place where
We think that the statement just quoted sets forth a sound principle of law and that it is applicable here. In consequence, the defendant employer owed a duty in respect to the safety of these barracks where his employees were required to stay; and, under equally well established principles, that duty is one which the employer cannot escape by delegation to another. “The master’s duty to pro
We think also that liability was properly charged to the defendant for a further reason: The testimony shows that some ten or eleven days prior to the fire, one of the plaintiffs saw the bullcook mixing the gasoline with the fuel oil and called this to the attention of the defendant’s superintendent who assured this employee and one of the others that he knew that this procedure was unsafe but he would take measures “to have it taken care of so that they would not do that any more”. It seems plain to us that the employee had the right to rely upon the superintendent’s assurance. It is also plain that the superintendent was himself guilty of negligence after receipt of this notice in failing to take such steps as were necessary to put a stop to these procedures. The record unquestionably shows that the court properly held the defendant liable to each of these plaintiffs.
We do, however, find ourselves compelled to order a portion of this cause to be remanded for the taking of further evidence of damages. Upon the trial the plaintiff Callaway testified in full and at length with respect to the personal property which he lost in the fire and as to its value. The court had before it not only Callaway’s testimony as to the items and their value, but it also had other testimony on the basis of which it arrived at a conclusion as to a proper allowance for depreciation, and found Callaway’s damages or loss to be $765.46. Plaintiff Hobbs also had given a deposition in which he likewise testified at length with respect to the items and value of personal property lost by him. However, after Callaway had testified and been cross-examined extensively with respect to the items and values which he claimed were destroyed, the court sug
It seems clear that the trial court was in error in permitting these answers, which were self-serving, to be introduced on behalf of the plaintiffs and that this error was compounded by refusal to permit the plaintiffs to be cross-examined upon the question of the amount of their losses. It is true that Rule 26(d) permits the use of depositions or portions thereof, but only “so far as admissible under the rules of evidence”. The rules of evidence would permit answers such as these to be used against the party giving them, but because they are self-serving they should not have been admitted on behalf of these plaintiffs. Lobel v. American Airlines, 2 Cir., 192 F.2d 217, 221. See 4 Moore’s Federal Practice, (1950 ed.) § 33.29.
The judgment of the court, insofar as it awards damages in favor of the appellees Roy Callaway and Jesse Hobbs, is not subject to any infirmity, and to the extent that it awards judgment to those appellees, it is affirmed. The remainder of the cause is remanded to the court below with directions to take further testimony with respect to damages only as the same concern the other appellees Weeks, Judson, Cullinane, Franz, Mulcahy and Holbrook. The findings and conclusions of the court to the effect that such appellees are entitled to recover their damages from the appellant shall stand, and upon ascertainment of the amount
The judgment in favor of the appellees last named is-reversed and the cause is remanded for further proceedings, not inconsistent with this opinion.
A separate order will be filed respecting the costs upon this appeal.
No complaint is made about tbe joinder of these several claims. See Rule 20 Rules Civil Procedure, 28 U.S.C.A., and Farmers Co-op Oil Co. v. Socony-Vacuum Oil Co., 8 Cir., 133 F.2d 101,105.
This arrangement was provided for in an agreement made between defendant and other members of an employers’ association and the employees’ union of which plaintiffs were members. It provided “Members sent out of town by the employers shall be furnished first class board, room and transportation and straight time wages, etc.”