Folk v. Schaeffer

Obinion by Mr. Justice Fell, The plaintiff was injured while assisting his fellow workmen in placing a hood on the top of an iron smokestack. The direct cause of the accident was the slipping of a knot in one of the guy ropes which held a derrick in place. The knot had been tied by one of the defendants, Merkel. The action was against Schaeffer, Merkel and Betolette, copartners trading as Schaeffer, Merkel and Company. At the time of the accident the work was in charge of the plaintiff. None of the defendants was present, and none of them except Merkel had seen the appliances used or had any connection with the work. At the trial an offer was made to prove by a witness that after the accident Schaeffer had said that the plaintiff ought to be paid, that he had always been willing to pay him, that the other members of the firm did not agree with him, and that he preferred to pay the plaintiff rather than that the money should go to the lawyers who had brought the action. Under objection this witness testified that two years after the accident Schaeffer had — 618 — made to him a statement substantially the same as that set out in the offer. It does not appear that Schaeffer had any personal knowledge of the accident or of the circumstances under which it happened. He made no admission of a fact from which negligence could be inferred, and no acknowledgment of a liability recognized by the firm. At the most he but expressed his individual opinion that the plaintiff should be paid, and a willingness on his part, not acquiesced in by his partners, that the firm should pay something to avoid litigation. His opinion as to the legal liability of his firm and his expression of a willingness to pay something in compromise of pending litigation neither imposed a liability nor tended to establish facts from which it would arise. This testimony was doubtless prejudicial to the defendants, and the error in admitting it was not cured by limiting its effect to the party who made the statement. As the action was against the firm there could practically be no such limitation. The case could not have been properly withdrawn from the jury, and it was carefully submitted by the learned trial judge. The first, second and third assignments of error are overruled, and for the reasons stated the fourth and fifth assignments are sustained. The judgment is reversed with a venire facias de novo.