Lacorazza v. Cantalupo

210 F. 875, 127 C.C.A. 459, 1914 U.S. App. LEXIS 2037

• Court: Court of Appeals for the Second Circuit
• Decided: January 13, 1914
• Docket: No. 97
• Status: Published

Opinion

LACOMBE, Circuit Judge.

The action was brought against- two, defendants, Lacorazza and the Vogel Company, which installed the heater. The negligence specifically charged against the latter practically resolved itself into the single question whether or not the heater or pipes immediately connecting, therewith had been provided with a safety valve. As to that question the testimony was conflicting; the jury found for the defendant company and that part of the case has not been brought here by writ of error.

[ 1 ] The plaintiff’s theory as to negligence on the part of Lacorazza was this: The heater, with his entire approval, was placed on his premises, in that part of the building which he leased; they were occupied by himself and his employés. How they should be used was for him to, prescribe. He had authority to direct or to allow his em-ployés to kindle a fire in this heater.

There was testimony to the effect: That in cold weather the water in the supply tank and pipes therefrom might freeze. That the Vogel. Company inspector, who came to examine the apparatus, four days before the accident told Lacorazza of this liability to freeze; indeed, the water had actually frozen when he got there. That he further told him that in such weather the fire should be kept going all the time, night as well as day, so as to prevent the formation of ice in the tank; that it was dangerous to allow ice to form in the tank. This- testimony was contradicted, but it was for the jury to decide whether notice of the danger and of the necessity of keeping up the fire was given to Lacorazza; their verdict shows conclusively that they found such notice was given.

[2] The proof further shows that after the inspector’s visit the fire was not kept up continuously; defendant gave po directions ■,to his employés to keep it going; it was allowed to go out each night and' was kindled anew each morning, no matter how cold the temperature was. Upon the proof as the jury found it, it might fairly be held that., defendant was negligent in allowing the heater to be thus handled, and the jury’s finding that Lacorazza did not do all that was reasonably prudent to make the use of this heater safe for his workmen working about there was a proper one. The court would not have been justified in withdrawing such a case from the jury.

The exception to refusal to nonsuit is overruled.

[3] The only other substantial question in the case is as to plaintiff’s testimony as to his family. His counsel asked him: “Have you a family?” He began to answer, “I, my wife — ” when"he was at once interrupted by defendant’s counsel, who objected that testimony as to his family was irrelevant and immaterial. If this were all — this statement that he had a wife — the matter would be unimportant; elsewhere in the record Agnes Cantalupo testified to disbursements that had been made for doctors, medicines, etc., and it appeared, without objection, that she was plaintiff’s wife. Metropolitan Street Railway Co. v. Kennedy, 82 Fed. 158, 27 C. C. A. 136. But plaintiff’s counsel was not satisfied; evidently he had not familiarized himself with the decisions of the federal courts, for in face of the objection, he insisted on a full answer to his question, arguing that having a family “bears in some respect on his ability to do.” He convinced the trial judge, who overruled the objection, saying: “It bears on the question of injury to his earning power.” Exception was duly reserved. The question was then answered, plaintiff stating that he had “a wife and seven children.” . . , .

We do not see what bearing the possession of a wife and seven children has upon a man’s “earning power”; but all question as to the admissibility of such testimony in the federal courts is .foreclosed by the opinion of the Supreme Court in Penn. Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141. It was there held that in actions of this, sort such.'testimony is improper, and should be excluded, and that it is' reversible error to admit it over proper objection and exception. See, also, Baltimore, etc., R. Co. v. Camp, 81 Fed. 807, 26 C. C. A. 626; Ches. & Ohio R. R. v. Stojanowski, 191 Fed. 720, 112 C. C. A. 310; N. Y. Elec. Eq. Co. v. Blair, 79 Fed. 896, 25 C. C. A. 216.

We regret very much that we are constrained to reverse this judgment, because, in view of the injuries concededly received, the amount of the verdict seems entirely reasonable, and quite possibly the improper testimony did not operate to enlarge its amount; but unless this court is prepared to hold that it will not accept the rulings of the Supreme Court on questions of law, in cases precisely similar to these in which such rulings are made, we see nothing else to do except to reverse the judgment, because of this error in the admission of tes-: timony.

Judgment reversed.