
    245 F. 853
    CAVORETTO v. ALASKA GASTINEAU MINING CO.
    No. 2965.
    Circuit Court of Appeals, Ninth Circuit.
    Oct. 8, 1917.
    
      J. H. Cobb,, of Juneau, Alaska, and Heywood & Wilson and'Walter Shelton, all of San Francisco, Cal., for plaintiff in error.
    L. P. Shackleford, H. L. Faulkner, and W. S. Bayless, all of Juneau, Alaska (Rufus Thayer, of San Francisco, Cal., of counsel), for defendant in error.
    Before GILBERT, ROSS, and HUNT, Circuit Judges.
   HUNT, Circuit Judge

(after stating the facts as above).

In charging the jury the court said: “If you find that the hammer was a defective appliance, then the next question would be: Was the defendant required to use that particular hammer while in that particular condition in the performance of the work, or was he free to repair or reshape it, or get some other hammer that was suitable, and not dangerous? For, if he was so free, then defendant cannot be said to have required the work to be done with that hammer in that shape. If you find from the evidence that this particular hammer was furnished plaintiff to do the work with, and that it was defective, then you are to inquire further whether the defect in the hammer was due to the negligence of the defendant — that is to say, whether or not it knew, or by the exercise of reasonable care could have known, that the hammer was defective. If it was defective, and the defendant knew, or ought to have known, of that fact, and required the plaintiff to use it in the performance of his duties — that is, left him no free and voluntary choice but to use it in that shape — and if the injury, if any, was received by virtue of so using the implement so found to be defective and required to be used, then your verdict should be in favor of the plaintiff for such damages as you may find that he has suffered. But if you find that the implement was not defective finder the circumstances, as I have defined ‘defective’ to you, or if you find that the plaintiff was not required to use it in the work, but might have taken a hammer which was not defective, and yet freely and voluntarily chose the defective hammer, knowing it to be defective, then he cannot recover, and your verdict must be for defendant.”

Counsel excepted to this instruction, and contend that it was not warranted by the pleadings or the evidence in the case. Their argument is that it injects into the case an issue whether or not plaintiff was required to use the defective hammer, and that such issue was erroneously submitted, because it was never contended that the plaintiff himself was required to use the hammer, but that it was admitted his coemployé, the helper, was the man to whom the tool was furnished, and by whom it was used. It is also said that by such injected issue a burden was erroneously put upon plaintiff to show that he was required to make selection of a hammer, and that, inasmuch as the proof did not show any such requirement, the jury was practically constrained to find against him.

We are of the opinion that the trial court was in error in giving the instruction complained of. It was not in accord with the theory or evidence of the plaintiff that he was required by defendant to use the hammer, -said to be frayed and battered, or that it was the duty of plaintiff to repair or reshape the hammer used, or to see to it that the helper got another hammer .for use. The effect of the charge was to state, as among the essential issues, matters which were not material points pleaded or in controversy. By submitting them there arose such a confusion of statement as doubtless led the minds of the jurors to deliberate upon and solve questions not involved, and which, if answered in a certain way, seemed to call for a verdict against plaintiff.

Defendant says, however, that as there was testimony by the foreman to the effect that there were other hammers available, it was not harmful error to omit any reference to the helper, because if the jury had been told that the hammer was in the hands of the helper, unless coupled with evidence that the helper was careless in the use of the hammer, such instruction would not have availed plaintiff, and that if, by giving such an instruction, the jury might have believed that the accident was due to the carelessness of the helper, and had found for plaintiff, it would have been ground for reversal, because neither pleadings nor proofs would have justified the finding. We need not follow this argument to its possible results, because it is fundamental that the plaintiff had a right to have his case submitted upon the issues pleaded and presented, and to have such issues stated free from commingling with injected issues not pleaded or presented, and which may have been the foundation of the adverse verdict reached. We cannot hold that there could be no recovery, and, without intending to express any opinion upon the facts, we believe the evidence was properly for the jury. New York, N. H. & H. R. Co. v. Vizvari, 210 F. 118, 126 C.C.A. 632, L.R.A.1915C, 9; Gekas v. Oregon-Washington R. & N. Co., 75 Or. 243, 146 P. 970; Pushcart v. N. Y. Shipbuilding Co., 81 N.J.Law, 261, 81 A. 113.

The judgment is reversed, and the cause is remanded, with directions to grant a new trial.  