# Petition for Writ of Certiorari — Broderick & Bascom Rope Co. v. Mangan > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1160%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1966 - **Citation:** 383 U.S. 926 ## Text ~ hee? 605 TS i. On August 23, 1962, respondent filed a request for 14 (5) The wire ope sent Wm. E. Schweitzer & 00. was composed of six strands with seven wires in n each, or 6 by 7 wire rope.“ (Res. A. 11.) a ” admissions. the rc the one material: Sets 14 was the duty of the Court of Appeals to follow the Appel- late Court decision ‘ ; bs * * te III. After the jury reported a disagreement, the judge gave an instruction patterned after the instruction in Allen v. U. S. (1896), 164 U. S. 492 at 501 (Res. A. 660-663). The Court of Appeals rejected the holding in Allen v. U. S. and the other federal cases following Allen v. U. S. It held that giving the instruction containing the following language was error: — „However, I'II say this, if much the greater number of you are in favor of a verdiet either for the plaintiff or for the defendant, each dissenting juror ought to consider whether his appraisal of the evidence, of the weight of the evidence, is a correct one, since it makes no effective impression upon the minds of so many equally intelligent fellow jurors, who bear the same responsibility, who serve under the sanction of the same oath and who have heard the same evidenee, with the same attention and with equal desire to arrive at the truth.“ (Res. A. 662-663). The Court of Appeals held that the District judge should have told each juror being in the majority to re-examine his appraisal of the evidence in the light of the fact that a minority of their number disagreed. His failure to do this was error. This holding creates a conflict among the Circuits. It affects the proper relations of the court to the jury. The language which the 7th Circuit says was error is substan- tially the same as was approved in this court in Allen v. U. S., 164 U. S. 492 at 501. The instruction there given includes the following: ated „that, if much the larger namber were for con- viction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the j 34 majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. The instruction was approved by the Fourth Circuit in Orthopedic Equipment Co. v. Eutsler (1960), 276 Fed. 2nd 455. That instruction is substantially identical to the in- struction given by the District Judge. It contains spe- cifically, the language : P. 462-463 ‘‘. . . If much of the larger number are of one opinion, a dissenting juror should consider whether his disagreement is a reasonable one which makes no impression upon the minds of so many jurors equally honest, equally intelligent with himself. If, upon the other hand, the majority is the other way, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which is not concurred in by the majority.“ 2 In Thompson v. Allen (1956), 240 F. 2d 266, the Tenth Circuit had the same question before it. It was argued that the instruction overemphasized the duty of tlfe minority to re-examine their thinking because of the fact they were in the minority and did not equally emphasize the duty of the majority to give . consideration to the views of the minority. y | The Court at Page 269 cited Allen v. V. S., 164 b. 8. 492 and affirmed the judgment. The same question was before the 7th Circuit in 1952, U. S. v. Furlong, 194 F. 2d 1 at. page 3. The instruction there approved contained the language which the Court of Appeals in this case has condemned. Thére was a part of the instruction in this latter case that was not taken from Allen v. U. 8. which the court disapproved. The decision of the 7th Circuit on the jury question creates iet among the Circuits. It is desirable to have uniformity in the several Circuits in the relation of the judge to the jury. If the ruling in Allen v. U. S. is to be changed it should be by decision of this court. CONCLUSION. 2 » This court should grant certiorari and construe Rule 36 and eliminate the conflict between the Circuits. It is essen- tia] that the rule should be properly applied for the admin- istration of justice. This court should also construe Rule 11 in its relation to Rule 36 as to an attorney omitting from his complaint the sole charge on which he expects to rely on the trial. This court should take jurisdiction to prevent a conflict of the law in Illinois in personal injury cases where the plaintiff has collected workman’s compensation and seeks to use employees of his employer as witnesses. : The holding of the Court of Appeals contrary to this court’s decision in Allen v. U. S. and the decisions of the other Circuits and the prior decision of the 7th Cireuit can only create N SO, to the relation of the court to the jury. eee We respectfully submit that a writ of certiorari should be granted. Respectfully submitted, Atvix G. Hupsarp and Reese Hun ee One Vortl La Salle Street, i * ois 60602 « . Attorneys for Petitioner. © 37 APPENDIX A. In roe Untrep States Court or ArrRALS. For the Seventh Circuit. £ SEpremBerR TERM, 1964—Apru. Session, 1965 No. 14738 EuGENE Manaan, f Appeal front” the Plaintiff-Appellant, United States Dis. v. : trict Court for the Northern District BnopRRIOR , * Rog of Illinois, East- YOMPANY, Divisi Defendant-Appellee. | wan St cue July 27, 1965 Before Hastine, Chief Judge, Durry, Circuit Judge, and Mxnenn, District Judge. Mercer, District Judge. Plaintiff, Eugene Mangan, filed his suit against the defendant for damages for personal injury. He prosecutes this appeal to review a judgment entered by the court below upon a verdict rendered by a jury finding the issues for the defendant. The action of the trial judge in refusing to permit plaintiff to read certain requests for admissions to the jury and other al- legations of trial error are ‘asserted as the ‘basis for plaintiff’s contention that the judgment should be xc. at Geek Toe oe 8 new trial. 792 a ATES * iv On and prior to December 1, 1960, plaintiff was an em- ployee of Schweitzer & Company which was then engaged in the construction of a concourse building at O’Hare Field. For some five weeks prior to the occurrence which gave rise to this suit the crew of which plaintiff was a part had been engaged in the installation of precast concrete panels used in the construction of the walls of the building. The panels, which weighed from 3000 to 3500 pounds each, were lifted by a crane to the second floor of the building where they were fitted into bays in the building wall. Each bay held four panels, Limited clearance within the bays required that a sling method be used.to install the number 4 panel in each bay, although other means were used to lift the first 3 panels into place. A- sling was fashioned from wire rope, or cable, wrapped around the concrete panel and wood softeners used to guard the panel from damage by the cable. In each such operation, the sling was rigged securely around a panel and the hook on the crane was fastened on the outside of the wire sling thus formed. The panel would then be lifted into the air in a vertical position to a height of about 4 or 5 feet. At that point, the ground men on the proj- ect attached a manila guide line to the cable which men working on the second floor manipulated as the panel was raised to guide the panel into place. Schweitzer used one-quarter inch cable as slings on the number 4 panels. Each cable could be used for approxi- mately 6 to 8 times before it was worn to such extent that replacement was necessary. At the start of the proj- ect one-quarter inch 6 x 19 cable was used for the sling.’ 1 Wire rope, or is designated in the trade by the diameter of the cable and a n designation of the number of strands. in the eable and the number of wires in each strand. Thus 6 x 19 cable is cable having six strands with nineteen wires in each strand. Other eable strengths are 1 designated in this opinion without specific description thereo ... Git wloe eckis of the ent iki: - ae 39 About the middle of November, 1960, Schweitzer’s super- visory employees decided to order some one-quarter incl. 6 x 37 cable — oe felt its greater flexibility would give more ease ing and better wearing quality. The job superintendent directed Schweitzer’s timekeeper to order some 6 x 37 cable from the defendant. That order was placed by phone to defendant’s warehouse on Novem- ber 14, 1960, for 50 feet of 6 x 37 cable. A sales trainee at defendant’s warehouse obtained a coil of cable from the warehouse and delivered it to the little shed” at the concourse project. Schweitzer’s timekeeper receipted for the delivery. / i On December 1, 1960, the job superintendent sent the plaintiff to the iron worker’s shanty where cable was stored to obtain some cable to replace the one being used for the sling. Plaintiff testified that he found a coil of new cable hanging in the shanty and that it was the only cable that was in the shanty which had not been used. The cable was then made into a sling around a number 4 panel in the manner above described, and the.crane operator lifted the panel to a height of about five feet to the proper position for attachment of the guide lines. While plaintiff and another employee were tying the ends of the guide line to the sling, the cable broke and the panel fell striking the plain- tiff and injuring him seriously and permanently. Plaintiff’s foreman arrived at the scene before plaintiff was removed to the hospital and saw the sling cable lying on the ground broken. , Thereafter, he and Schweitzer’s job supervisor examined the cable and upon counting the strands discovered that it was 6 x 7 cable. Schweitzer’s supervisory employees testified that no one-quarter inch 6 x 7 cable had ever been ordered by them for the O’Hare is identical in appearance. The only way to distinguish one-quarter Sisk 6 & ED calle frten one Qaerte Snes § & T oes & Se ae aw of the strands apart and count the number of wires therein. — i 40 project, and tik i no be of such composition was ever used on the project. Subsequent laboratory tests of the broken cable showed it to be one-quarter inch in diameter and consisting of six strands, with each strand made up of seven wires wound around a hemp center. The test re- vealed that the breaking strength of the cable was about 2330 pounds. Schweitzer’s job superintendent testified that he was familiar with the cable stored in the ironworker’s shanty ; that 50 feet of 6 x 19 quarter-inch cable had been received from another supplier on November 3, 1960, and that all such cable had been used prior to December 1, 1960; that for a period of some 10 days prior to December 1 there was only one piece of new and unused cable in the shanty ; and that the cable was in a coil the way it had been received, and that the coil was 50 feet in length. He fur- ther testified that he had examined all cable on the con- course job on December 2, 1960, and that he could find no 6 x 37 cable oh the job, either new or used. ; Plaintiff’s complaint charged that his injury came as a proximate result of defendant’s negligence, among other things, in supplying a cable of inferior strength and dif- ferent from the one that had been ordered, in selling a cable which was unfit for the purpose for which it was ordered, and in failing to warn plaintiff that the cable was unfit for the purpose for which it was intended. 5 We turn first to the alleged error in the court's refusal to permit plaintiff’s requests for admissions to be read to the jury. On August 23, 1962, plaintiff filed 14 requests for admissions of fact which, so far as here pertinent, re- quested admissions that Schweitzer had ordered 6 x 37 wire rope from defendant, that wire rope was delivered by the defendant to Schweitzer pursuant to that order prior to December 1, 1960, and that, the wire rope sent Wm. E. Schweitzer and Co. was composed of 6 strands * — * 41 with seven wires in each, or 6 x 7 wire rope“. The re- quests above summarized were requests numbered 1 and 4. The request above quoted was request number 5. Thereafter on September 4, 1962, defendant filed a motion praying that it be relieved from answering plaintiff’s requests numbered 11, 12, 13 and 14, and that an order be entered extending the time within which defendant could answer the balance of the requests for admissions. On Septem r 10, 1962, defendant moved for a hearing on its objections to requests numbered 11 to 14. Judge Hoffman entered an order sustaining defendant’s objec- © tions to those requests. Defendant did not seek or obtain a ruling on that portion of its motion requesting an ex- tension of time to answer the balance of the admissions, and defendant did not, in fact, at any time deny or other- wise answer plaintiff’s requests numbered 1 through 10. That was the situation prevailing at the time when the cause went to trial. N At the outset of the trial, plaintiff sought to read his requests numbered 1 through 10 to the jury. Upon the representation of defendant’s counsel that objections to all requests filed by the plaintiff had -been sustained, the court asked plaintiff to pass the matter of the admissions until the record could be checked. During the course of the trial, several other discu’sions between court and counsel were had relative to use of those requests. Ulti- mately, the trial judge indicated his opinion that defend - ant 's failure to respond to the requests would be tanta- mount to admission of the facts therein stated, but that plaintiff had abandoned his requests by his subsequent filing of interrogatories addressed to the same subject matter. 7 4 8 That ruling was error. A party's failure to file a veil fied response to requests for admissions under Rule 36 admits: the truth of all matters therein stated, Water „ —— Hammer Arrester Corp. v. Tower, 7 Cir., 171 F. 2d 877, 879, Adventures in Good Eating v. Best Places to Eat, 7 Cir., 131 F. 2d 809, O’Campo v. Hardesty, 9 Cir., 262 F. 2d 621, and unanswered requests are not abandoned by the subsequent filing of interrogatories addressed to the same subject. Woods v. Robb, 5 Cir., 171 F. 2d 539. Where no response is made to requests for admissions, the party making the requests is entitled to rely thereupon and no further proof is required to be made of the facts thus admitted. Water Hammer Arrester Corp. v. Tower, supra. That error alone would require reversal of this judg- ment. Plaintiff advised the court below that his trial preparation was made on the theory that these unan- swered requests would stand admitted. The exclusion of those facts from evidence may well have made the differ- ence between a verdict for the plaintiff and the verdict rendered. ‘ There is absolutely no merit to defendant’s contention that the request was deficient because it did not fix a time within which defendant’s response thereto was re- quired. Defendant did not object to the sufficiency of the requests in the trial court. It cannot now object to the form of the request. Rule 36 places the burden upon a party to whom requests are directed to take some affirma- tive action, either by response to the requests or by ob- jecting thereto if any ground he has. Water Hammer Arrester Corp. v. Tower, supra. Having done nothing as to requests 1 to 10, inclusive, defendant must bear the congequences of their standing admitted. 14 Reversal of the judgment is also required because evi- dence of workmen’s compensation benefits was injected into the case. Immediately prior to the commencement of the trial, the trial judge expressed his general view that such evidence would not be admitted, though he re- served his final ruling thereon. He told defense counsel 43 to refrain from such inquiry until a ruling was made by the court. Notwithstanding that admonition, defendant’s counsel sought to ask Schweitzer’s office manager if com- pensation had been paid to plaintiff and if Schweitzer would recover substantial sums if plaintiff was success- . ful in this suit. Objections to those questions were sus- tained, and defendant’s offer of proof was denied. Sub- sequently, in his examination of one of the treating physi- cians, counsel asked the physician who had paid plaintiff’s bill and elicited the answer that the insurance company had done so. The question and answer were stricken. Though the court chastised counsel for his deliberate dis- obedience to the court’s prior admonition, plaintiff’s mo- tion for a mistrial was denied. Later, in the trial, but yet prior to the court’s ruling on admissibility, counsel for defendant posed similar ques- tions to the witness Borchardt. Ultimately, in apparent reliance npon Mokrzycki v. Olson Rug Co., 28 III. App. 2d 117, 170 N. E. 2d 635 the court allowed Borchardt to be cross-examined relative to the workmen’s compensation situation and allowed defendant to show through Bor- chardt that a workmen’s compensation claim against Schweitzer was then pending before the Illinois Industrial Commission. The court below reasoned that such cross- examination was proper to show the possible prejudice and bias of the witness as an employee of Schweitzer. This court, among others, has stated that testimony of that nature is highly prejudicial to a plaintiff’s case E. g., Eichel v. New Fork C. R. Co., 375 U. S. 253, 84 S. Ct. 316, 11 L. Ed. 2d 307; Tipton v. Socony Mobil Co., 375 U. S. 34, 84 S. Ct. 1, 11 L. Ed. 2d 4; Goldman v. Checker Cab Co., 7 Cir., 325 F. 2d 853, 856; Bryntesen v. Carroll Const. Co., 22 III. 2d 63, 174 N. E. 2d 172; O’Brien v. Chicago City Ry. Co., 305 III. 244, 262, 137 N. E. 214, 27 A. L. R. 479; Burnett v. Hernandez, 9 Cir., 263 F. 2d 212. Cf., Ting v. 44 Grimm, 7 Cir., 300 F. 2d 658, 660. Unless such evidenee has some legitimate purpose other than to advise the zury that a plaintiff has been partly paid for his injury, a strict exclusionary rule should be applied. In the case). the conduct of defendant’s cotinsel in his cross-examination of Schweitzer’s office’ manager, the doctor and Borchardt in defiance of the court’s admoni- tion was an act not te be condoned. The-motive for such questioning could not have been entirely an attempt to show possilife bias of the witnesses. The doctor was not , a Schweitzer employee. He could have no possible in- terest in the case. Borchardt was not a Schweitzer ein- ployee as we shall rept show This, even if the judge was correct in his ultimate ruling that evidence of the receipt ‘of workmen’s compensation might be adduced to show the possible bias of witnesses, we are still faced here with gross error. Counsel’s willingness to inject that evidence into the case at any cost is sufficient to earn him a new trial for plaintiff. , The cross-exangnation of Borchardt which the court permitted must be reviewed in a different light. In the Olson case, the plaintiff, an employee of Globe; was in- jured while unloading a boxcar which he alleged Olson had negligently loaded. The court held that cross-ex- | amination of Globe’s plant superintendent ‘relative to Globe’s interest in plaintiff’s suit because of workmen’s compensation benefits paid to plaintiff was permissible for the limited purpose of showing the possible bias of the Globe employee as a witness. Mokrzycki v. Olson Rug Co., 28 Tl. App- 2d 117, 125-127, 170 N. E. 2d 635. We believe that “Olson is so inconsistent with several opinions of the Supreme Court of Minois that that deci- sion does not reflect the law Of that state. Compare, Bryn- stesen v. Carroll Const. Co., 27 III. 2d 566, 190 NE 2d 315; Rylander v. Chicago Short Line Ry. Co., 17 IIl. 2d 618, 45 612.628, 161 NE-2d 812; O’Brien v. Chicago City Ry. Co., 305: Ill. 244, 262-263, 137 NE 214, 27 A. L. R. 479. The rationale of Olson is that every employee witness is suspect if his employer may possibly have a lienable interest in any recovery by a fellow employee against a third-party tort-feasor. To us that is sheer folly. Though we cannot always discern the motives of men, we cannot conclude that every salaried employee is likely to testify falsely to enhance the chances of his employer’s claim for money. Any slight value which such evidence might have in discrediting a witness is far outweighed by the likelihood: that such evidence will be misused by a jury. Tipton v. Socony Mobile Oil Co., 375 U. S. 34, 84 S. Ct. 1, 11. L. Ed. 2d 4; Eichel v. New York C. R. Co., 375 U. 8. 253, 84 S. Ot. 316; Burnett v. Hernandez, 9 Cir., 263 F. 2d 212. Indeed, we can conceive of few instances in which the value of such evidence would merit the effort of its producement if the evidence did not at the same time advise the jury that the plaintiff had already collected some money for his injury. As one court pointed out the ‘‘smell’’ of insurance or workmen’s compensation must bé presumed to affect a jury adversely to a plaintiff’s cause. Burnett v. Hernandez, 9 Cir., 263 F. 2d 212, 214. Though we can conceive of instances in which the com- pensation factor might have the effect of discrediting a witness, we think that the use of such evidence should be limited to instances in which possible bias is revealed by some act or factor more profound than the mere fact of employment by a particular employer. We are, therefore, constrained to disagree with the Olsoe opinion. * In any event, the cross-examination of Borchardt 79 7 tive to Schweitzer's compensation was error irrespeetive of the status of Olson as authority. Borchardt was not Le 46 a Schweitzer employee. He was employed by Martin Boyer Company, an investigator employed by Schweitzer to process its workmen’s compensation claims. There is nothing to indicate that the salary of Borchardt or the fees of Boyer were in any way affected by the Schweitzer lien claim. Borchardt was permitted to testify that plain- tiff had a suit pending against Schweitzer before the Illinois Industrial Commission. The jury may. well have implied from that testimony that plaintiff was alleging that Schweitzer had been negligent and that, therefore, plaintiff could not recover from defendant.? The testi- mony had no possible tendency to discredit the witness. Its only tendency was to prejudice plaintiff’s rights. Though it is not likely to reeur on a new trial of this case, we think one other aspect of this appeal shouldbe — Briefly mentioned. After the jury had deliberated for some six hours, the jurors were permitted to separate and to go to their homes for the night. Shortly after they met on the following morning, the court gave the jury an additional charge which tended, among other things, to tell each of the jurors being in the minority on the panel to re-examine his appraisal of the evidence in the light of the fact that a majority of their, number, who were equally intelligent people disagreed. We think 2 That hypothesis is contrary to the established rule of law that the negligence of an employer is not imputable to his employee in a suit against a third person. Giguere v. United States Steel Corp., 7 Cir., 262 F. 2d 189; Rylander v. Chicago Short Line Ry. Co., 17 III. 2d 618, 161 N. E. 2d 812. a The court téid the jury, in part: Now, I don’t know how this jury stands as between those who may be at this moment in favor of the plaintiff or in favor of the defendant, and I don’t want to know. : : „However, III say this, if much the greater number of you are in favor of a verdict either for the plaintiff or for the defendant, each dissenting juror ought to consider whether his appraisal of thé evidence, of the weight of the evidence, is a correct cne, since J it makes no effective impression upon the minds of so many equally oa an pe 47 . it error to so charge a jury unless a like admonition, equally specific, is likewise addressed to those jurors hold- ing a majority view of the evidence.“ Finally, the conduct of. defendant’s counsel in cross- examining a witness upon an exhibit ‘which was not in evidence and which was never offered in evidence was such a deliberate misuse of the judicial process that it must not be repeated upon a retrial of this suit. We have considered and rejected all of the defendant’s , arguments for affirmance which are not specifically men- tioned herein. For the reasons above stated, the judgment is reversed . and the cause is remanded to the court below for a new trial. i * 2 REVERSED AND REMANDED. 3 * intelligent fellow jurors, who bear the same responsibility, who serve under the sanction of the same oath and who have heard the same evidence, with the same attention and with equal desire to arrive at the truth. 4A similar instruction has been held to be improper. E. g., Acunto v. Equitable Life Assur. Soc., 270 App. Div. 386, 60 N. Y. S. 2d 101, Lennox v. White, 133 W. Va. 1, W. Va., 54 S. E. 2d 8 and Mead v. City of Richland Center, 237 Wis. 537, 297 N. W. 419. APPENDIX B. JUDGMENT BLOW. Unirep States Court or Appeals For the Seventh Circuit. Chicago, Illinois 60610. Tuesday, July 27, 1965. Before . Hon. John S. Hastings, Chief Judge, Hon., F. Ryan Duffy, Circuit Judge, Hon. Fredrick O. Mercer, District Judge. Eucenz Mangan, Appeal from the United : States District Court _— 5 for the Northern Dis- BRoDERICK AND Bascom Rope trict of Illinois, East- ComPany. — ern Division. This cause came on to be heard on the transcript’ of the record from the United States District Court for the Northern District of Illinois, Eastern Division, and was argued by counsel. : On consideration whereof, it is ordered and adjudged by this court that the judgment of the said District Court in this cause appealed from be, and the same is hereby, Reversed, with costs, and that this cause be, and the same is hereby remanded to the said District Court for a new trial in-accordance with the opinion of this court filed this day. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_1160%3A1. Public record. Not legal advice.