Murphy v. Coppieters

GRAY, C.

This action was brought by plaintiff for the negligent killing of her son by defendants while said son was at work as a plumber in the Call Building on the thirtieth day of September, 1897. The son was at work in a certain shaft at the rear of the elevator shaft on the second floor. In the same shaft, above, at about the seventeenth floor, an employee of appellants named Johnson was engaged in fastening an iron ladder in place by means of iron anchors, and the evidence indicates that it was by Johnson dropping one of these anchors down the open shaft that the son came to his death. The plaintiff, upon a trial and verdict in her favor for $2,250, had judgment for that amount. The appeal is from this judgment and from an order denying a new trial.

3. The first point made on the appeal is, that there was no evidence to show that Johnson was in the employ.of appellants at the time of the injury. This point is not tenable, in view of the first allegation of appellants’ answer as follows:—

“These defendants deny that on the thirtieth day of Hep

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tember, 1897, or on any other day, the defendants, or any, or all of them, except as hereinafter appears, were engaged in the construction of an iron stairway or ladder in the building known as the Call or Claus Spreckels Building. . . . And in that behalf these defendants allege that on or about the thirtieth day of September, 1897, the defendants B. Coppieters, J. T. McCormick, and St. John B. McCormick, were copartners doing business in the said city and county of San Francisco, under the firm name and style of the California Artistic Metal and Wire Company; that on said day the said copartnership were engaged, as independent contractors, in the construction of an iron ladder in a certain shaft or pipe-well in that certain building then in the course of erection at the southwest corner of Market and Third streets in the said city and county of San Francisco, which said building is now known as the Claus Spreckels Building; that on said day the defendant Martin Johnson was employed by said co-partnership, and was engaged by them, and as their employee was at work in the construction of said iron ladder at a point in said building at or between the seventeenth and eighteenth floors thereof.”

The complaint charged “that through the negligence and carelessness of the defendants and their servants, a piece of iron fell, and was negligently and carelessly caused by the defendants to fall,” etc. It is clear from an inspection of these pleadings that when they were drawn the appellants had no thought of avoiding responsibility for the death of Murphy on any theory that Johnson was not their servant, but that he was their servant in the work in the performance of which the death was caused is affirmatively pleaded by them in a verified answer. A new trial can hardly be granted for failure to prove a fact so clearly admitted by appellants. “A party who, formally and explicitly, admits by his pleading that which establishes the plaintiff’s right, will not be suffered to deny its existence, or to prove any state of facts inconsistent with that admission. No application was made to the court to be relieved from the effect of this admission, or to weaken or modify its full import. After such an admission it was not necessary for the plaintiff to prove it, nor would it be permitted to the defendant to deny it.”