#### DAVIS, Administrator or L. G. DAVIS, v. NORTH CAROLINA SHIPBUILDING COMPANY.

(Filed 29 September, 1920.)

1. Employer and Employee — Master and Servant — Negligence—Vice Principal — Direct Orders — Defective Appliances.

Evidence that defendant’s employee, acting under the immediate order of his superior, and defendant’s vice principal, went beneath a heavy piece of timber to unfasten it so as to be drawn by defendant’s derrick crane to position, with evidence that by reason of its defective condition the crane should not have been used on the occasion in question, is sufficient to take the case to the jury upon the question of the defendant’s' actionable negligence.

2. Employer and Employee — Master and Servant — Question of Employment — Policy of Indemnity — Contracts—Evidence.

Where the defendant has denied that the plaintiff’s intestate was employed by him, and the action is to recover damages under the alleged negligence of the defendant as the employer of the intestate, it is compe*75tent to show that the defendant had taken out a policy indemnifying it against loss for personal injuries received by its employees, including the intestate. Ciarle v. Bonsai cited and distinguished.

3. Contracts, Written — Evidence—Parol—Collateral Matters.

The rule excluding parol evidence as to the contents of a written contract does not apply when the contract is merely collateral to the issue, and its contents is not directly involved therein, and is not the subject-matter in dispute.

Civil actioN, tried before Connor, J., and a jury, at March Term, 1920, of Carteret.

•Tbe action is to recover damages for death of plaintiff’s intestate, caused by alleged negligence of defendant while he was claimed to be in defendant’s employment. There was denial of employment of intestate, defendant claiming that the plant and enterprise, at the time, were under control of United States Government. There was also denial of any negligence on part of defendant, and also pleas of contributory negligence and assumption of risk.

On issues submitted the jury rendered the following verdict:

“1. Was the plaintiff’s intestate killed by the negligence of the defendant, as alleged? Answer: ‘Yes.’

“2. Was Leslie G. Davis, deceased, at the time of his death employed by the North Carolina Shipbuilding Company, defendant? Answer: Wes.’

“3. Did the plaintiff’s intestate, by his own negligence, contribute to his own injury? Answer: ‘No.’

“4. Was the death of plaintiff’s intestate caused by injury due to risk of his employment voluntarily assumed by said intestate ? Answer: ‘No.’

“5. What damage is plaintiff entitled to recover of defendant? Answer : ‘$5,000.’ ”

Judgment on verdict, and defendant excepted and appealed, assigning errors.

Ward & Ward and M. Leslie Davis for plaintiff.

J. F. Duncan for defendant.

Hoke, J.

There were facts in evidence tending to show that on 1 March, 1918, the intestate of plaintiff, with other employees of the shipbuilding company, were engaged in removing some heavy timber from a car and piling them on the ground near, by means of a derrick or crane; that these workmen, at the time, were under the immediate supervision and direction of a foreman or boss, who stood towards them in the relation of vice principal, and that the derrick crane was defective, *76and bad been for several days; tbat in attempting to remove a very heavy piece of timber from tbe car, one end of it lodged or became fastened in some way, and tbe boss ordered tbe intestate to go in under tbe timber and push it free; tbat intestate, a young man, 24 years of age, wbo bad been on tbe work about a week, proceeded to 'obey tbe order, pushed tbe timber free; tbe derrick failed to work, and tbe timber slid down on tbe intestate and crushed him to death. There was ample evidence of negligence, tbe proximate cause of tbe killing, imputable to defendant, both in tbe condition of tbe derrick and in tbe negligent order of tbe vice principal, and bis Honor was clearly right in refusing defendant’s prayer for instructions to tbe effect tbat if tbe jury believed the. evidence they would find tbe issue as to tbe principal negligence for defendant. Thompson v. Oil Co., 177 N. C., 279; Howard v. Oil Co., 174 N. C., 651; Ridge v. R. R., 167 N. C., 510.

As apposite to tbe facts presented, it was said in Thompson’s case, supra: “And in this connection there are numerous decisions to tbe effect tbat tbe general directions or present and special orders of a boss or higher employee, one wbo represents tbe employer and stands towards tbe workmen in tbe position of vice principal, may be considered as a relevant fact when it is one from which, in itself or in connection with tbe attendant circumstances, tbe fact of negligence may be reasonably inferred. Atkins v. Madry, 174 N. C., 187; Howard v. Oil Co., 174 N. C., 651; Howard v. Wright, 173 N. C., 339; Wade v. Contracting Co., 149 N. C., 177; Holton v. Lumber Co., 152 N. C., 68; Noble v. Lumber Co., 151 N. C., 76; Allison v. R. R., 129 N. C., 336; Patton v. R. R., 96 N. C., 455.

> “Not only is an employer supposed, as a rule, to control tbe conditions under which tbe work is done, and to have a more extended and accurate knowledge of such work and tbe tools and appliances fitted for same, but tbe order, itself given by tbe employer or bis vice principal directing tbe work and tbe natural impulse of present obedience on tbe part of tbe employee are additional and relevant facts to be considered in passing upon tbe latter’s conduct in reference to tbe issue.”

It was chiefly urged for error tbat tbe court admitted, over defendant’s objection, evidence tending to show tbat tbe shipbuilding company bad taken out and held indemnity insurance in reference to employees engaged in this work, citing Clark v. Bonsal, 157 N. C., 270, in support of tbe objection.

■ It is true tbat in Clark v. Bonsal tbe Court decided tbat an injured employee could not maintain an action for negligent injury against tbe insurance company on an indemnity policy as ordinarily drawn, taken out, and held by tbe employer for bis own protection. Applying tbe principle, it has been held in several such eases that-tbe existence and *77contents of such a policy is not, ordinarily relevant on the question of damages, or on the issue as to negligence, but, in the present case, the defendant was endeavoring to maintain the position that it was not then operating the plant, and the intestate, at the time of the occurrence, was not in their employment. And the fact that the company had taken out and then held indemnity insurance for injuries to their employees, was clearly relevant in that issue. The court was careful to restrict the evidence to the purpose indicated, and the exception must be overruled. In this connection it was earnestly insisted that there was error, in permitting witnesses to speak of the policies in question when it appeared that they were in writing and not produced. The question chiefly pertinent here was not so much the contents of the policies as the independent fact that such policies were held, but, in any event, the policies not being the subject-matter in dispute between the parties nor their contents directly involved in the issue, they do not come within the rule which excludes parol evidence as to the contents of a written paper or document. Miles v. Walker, 179 N. C., 479-484; Morrison v. Hartley, 178 N. C., 618.

Speaking to the position in Miles case, supra, the Court said: “Again it is objected that the court, over defendant’s objection, allowed plaintiff to say that he had sublet the property at $50 per month, the objection, being put on the ground that this sublease was in writing, but as held in numerous cases on the subject, the rule excluding parol evidence of the contents of a written paper or document applies only in actions, between the parties to the writing, and when the enforcement of obligations created by it is substantially the cause of action, it does not prevail as to collateral matters though they may be relevant to the inquiry.”

On careful consideration, we find no error to defendant’s prejudice,, and the judgment for plaintiffs is affirmed.

No error.