Herrin, Lambert & Co. v. Daly

Calhoon, J., delivered the opinion of' the court. The declaration is for damages for a serious hurt to appellee, an employe at a'saAvmill owned by appellants, who were not a [342] corporation, but a private partnership. Of course the fellow-servant rule applies in full force, and recovery could be had only if the injury was caused by the negligence of the master, or his negligence co-operating with that of a fellow servant. On the cross-examination by appellee’s counsel of Lambert, one of the defendants below, as a witness, he was asked if there was any one back of his firm who would satisfy the judgment if obtained. The court overruled an objection to this, and we think this action error. It could not conceivably throw any light on the issue, and could have no other tendency than to seduce a verdict on the ground that an insurance company, and not the defendants, would be affected. The error was not cured, because, the objection having been put on the basis of irrelevancy and incompetency, and also for the further reason that the accident indemnity policy was in writing, not produced, the writing was then read in evidence by plaintiff without renewed objection. The principle was decided against defendants, and exception taken, and they were not required by law to repeat their objection. The conflict of testimony as to liability for this unfortunate injury makes too close a case to admit of affirmance regardless of this error. In order to exclude a conclusion, it is proper to say that we do not pass on the instructions to the jury, given and refused. Reversed and remanded.