Opinion
No. 42343.
June 11, 1962.
1. Master and servant — reasonably safe place to work doctrine not applicable where conditions relative to safety are constantly changing — decedent employee of independent contractor.
Widow of decedent killed as result of collapse of building upon which he was working as a carpenter was not entitled to recover from the owners thereof for failure to furnish the decedent with a safe place to work based on its negligence in not employing an architect to supervise the construction of the building, where the decedent was employed by an independent contractor, the building was not of the type to require an architect, and the independent contractor was experienced and had constructed a number of buildings for the defendant.
Headnotes as approved by Arrington, J.
APPEAL from the Circuit Court of Chickasaw County; W.M. O'BARR, J.
Jeff Busby, Houston; Charles W. Busby, Jackson, for appellant.
I. There was ample proof offered by plaintiff to take the case to the jury for its determination of negligence and other issues in the case. Ballenger v. Vicksburg Hardwood Co., 238 Miss. 654, 119 So.2d 778; Buntyn v. Robinson, 233 Miss. 360, 102 So.2d 126; Magnolia Petroleum Co. v. Williams, 222 Miss. 538; 76 So.2d 365; McDowell v. City of Natchez, 242 Miss. 386, 135 So.2d 185; Williamson v. Inzer, 239 Miss. 707, 125 So.2d 77.
II. The Court erred in entering an order sustaining the motions of defendants, Vardaman Manufacturing Company and J.L. Kendall, to exclude the evidence of plaintiff at the close of her case, and in finding for defendants, and in peremptorily instructing the jury to return verdicts for defendants, and in dismissing plaintiff's declaration and cause of action with prejudice. Ballenger v. Vicksburg Hardwood Co., supra; Buntyn v. Robinson, supra; Magnolia Petroleum Co. v. Williams, supra; McDowell v. City of Natchez, supra; Mock v. Natchez Garden Club, 230 Miss. 377, 92 So.2d 562.
III. The Court erred in refusing to receive and grant to the jury plaintiff's tendered instruction No. 3, instructing the jury as to the law and its applicability under the doctrine of res ipsa loquitur, and in refusing to submit the case to the jury on the evidence and this instruction, and in announcing in open court in the presence of the jury, "This is not a res ipsa loquitur case." Ballenger v. Vicksburg Hardwood Co., supra; Bloch v. Brown, 201 Miss. 653, 29 So.2d 665; Johnson v. Coca Cola Bottling Co., 239 Miss. 759, 125 So.2d 537.
IV. The Court erred in refusing to receive and grant plaintiff's tendered instruction No. 4 to the jury, as to the law and liability of one who serves as his own architect on building being constructed for himself, which law is applicable to the case being considered by the Court. Brent v. Baldwin (Ala.), 49 So. 343; Looker v. Gulf Coast Fair (Ala.), 81 So. 832; Mississippi Central R. Co. v. Holden, 99 Miss. 124, 54 So. 851; Secs. 8638, 8639, Code 1942; 39 C.J. 1330.
V. The Court erred in refusing to receive plaintiff's tendered instruction No. 5, to the jury, and in refusing to grant it, and submit the case to the jury on the evidence. Brent v. Baldwin, supra; Looker v. Gulf Coast Fair, supra; Meir v. Morgan, 82 Wis. 289, 52 N.W. 174; Wilkinson v. Detroit Steel Spring Works, 73 Mich. 405, 41 N.W. 490.
VI. The Court erred in not permitting the jury to consider and determine the question of negligence of J.L. Kendall, defendant, in failing to furnish Eben Lee May, and other employees, a safe place in which to work, and in not properly and adequately inspecting the work being done from the point of safety, and in not adequately supervising the same.
VII. The Court erred in not granting the peremptory instruction No. 1, asked by plaintiff, against the defendant, Vardaman Manufacturing Company, Inc. This instruction was in effect a motion for a directed verdict on the pleadings. It could have been invoked at any proper time regardless of testimony. 49 C.J. 670.
Daniel, Coker Horton, Jackson; Armis E. Hawkins, Houston, for appellees.
I. Nothwithstanding the respective duties of the defendants named in this case, the evidence considered in a light most favorable to the plaintiff and considering also all logical inferences to be drawn therefrom was insufficient to create an issue for jury determination. Cochran's Admrs. v. Chesapeake O.R. Co., 232 Ky. 107, 22 S.W.2d 452; Hercules Powder Co. v. Calcote, 161 Miss. 860, 138 So. 583; Hulett v. Hulett, 152 Miss. 476, 119 So. 581; Kramer Service v. Wilkins, 184 Miss. 483, 186 So. 625; Masonite Corp. v. Hill, 170 Miss. 158, 154 So. 295; Missouri Transportation Co. v. Beard, 179 Miss. 764, 176 So. 156; Teche Lines v. Bounds, 182 Miss. 638, 179 So. 747; Yazoo M.V.R. Co. v. Green, 167 Miss. 137, 147 So. 333; 21 Words and Phrases, Inferences, 577.
II. The instant controversy is not such as admits of the application of the rule of res ipsa loquitur in that the necessity therefore does not exist; The control over the offending instrumentality was not conclusive; and there was no showing of superior knowledge by Vardaman Manufacturing Company, Inc. Alabama V.R. Co. v. Groome, 97 Miss. 201, 52 So. 702; A. J. Inc. v. Southern Cities Distributing Co., 173 La. 1051, 139 So. 477; Aponaug Manufacturing Co. v. Carroll, 183 Miss. 793, 184 So. 63; Columbus G.R. Co. v. Coleman, 172 Miss. 574, 160 So. 277; Dorman v. T. Smith Son, 223 La. 29, 64 So.2d 833; Edwards v. Gullick, 213 Cal. 86, 1 P.2d 11; Emerick v. Myer, 39 Wn.2d 23, 234 P.2d 1079; Hall v. National Supply, 270 F.2d 379; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Johnson v. United States, 333 U.S. 46; Kaltenback v. Cleveland C. C. Highway Inc., 82 Ohio App. 10, 80 N.E.2d 640; Palmer v. Clarksdale Hospital, 206 Miss. 680, 40 So.2d 582; Peerless Supply Co. Inc. v. Jeter, 218 Miss. 61, 65 So.2d 240; Pongetti v. Spraggins, 215 Miss. 397, 61 So.2d 158; Waterbury v. Riss Co., 169 Kan. 271, 219 P.2d 673; 38 Am. Jur., Negligence, Secs. 295, 303; 65 C.J.S., Negligence, Sec. 220; Cooley, Torts (4th ed.), Sec. 480.
III. To an employee of an independent contractor, a contractee owes only the duty owed to a business invitee, not to lead them into a dangerous trap or to expose them to an unreasonable risk, but to give them adequate and timely notice and warning of latent or concealed perils which are known to him but not to them, and neither the common law nor statutes of the State of Mississippi impose upon such contractee a duty to the employees of an independent contractor to furnish him with plans and specifications prepared by a qualified architect or to otherwise undertake the protection of employees of an independent contractor from perils incident to the work undertaken, for negligence of the contractor or the negligence of other contractor's employees. Burke v. Ireland, 26 App. Div. 487, 50 N.Y. Supp. 369; Burke v. Ireland, 166 N.Y. 305, 59 N.E.2d 914; Carroll v. Carroll, 16 How. 287, 14 L.Ed. 936; Cohens v. Virginia, 19 U.S. 264, 5 L.Ed. 257; Gulf Oil v. Bivins, 276 F.2d 757; Lancaster v. Lancaster, 213 Miss. 536, 57 So.2d 302; Looker v. Gulf Coast Fair, 203 Ala. 42, 81 So. 832; Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60; Mosley v. Jones, 224 Miss. 725, 80 So.2d 819; Nowell v. Harris, 219 Miss. 363, 68 So.2d 464; Regan v. Foxworth Veneer Co., 178 Miss. 654, 174 So. 48; Storm v. New York Telephone Co., 270 N.Y. 130, 200 N.E. 659; Trimyer v. Norfolk Tallow Co., 192 Va. 176, 66 S.E.2d 441; Sec. 6998-05, Code 1942; 35 Am. Jur., Master and Servant, Sec. 161.
IV. The plaintiff's decedent, having actual or constructive knowledge of the absence of detailed plans prepared by a qualified architect and being as he was experienced in and intimately familiar with construction work the progress of which results in constantly changing conditions affecting an increase or diminution of safety, as to Vardaman Manufacturing Company, Inc., assumed unto himself the risks involved in the erection of the shed under such circumstances. Kramer Service v. Wilkins, supra; Sanders v. Smith, 200 Miss. 551, 27 So.2d 889; Statham v. Blaine, 234 Miss. 649, 107 So.2d 93; Wall v. Brooks-Scanlon Co., 138 La. 900, 70 So. 875; Anno. 44 A.L.R. 1124.
(Hn 1) The appellant, Rosie May, plaintiff below, the widow of Ebin Lee May, deceased, filed suit in the Circuit Court of the First Judicial District of Chickasaw County against Vardaman Manufacturing Company, Inc., and J.L. Kendall to recover damages for the alleged wrongful death of her husband as the result of the collapse of a building upon which he was working as a carpenter. From an adverse judgment, appellant appeals.
The record discloses the following: In October 1959, the Vardaman Manufacturing Company, Inc., acting through its executive vice president, Gatlin Gilder, entered into an oral contract with J.L. Kendall to construct two buildings for the corporation. One of the buildings was to be 150 feet long and 60 feet wide; the other, a shed 150 feet long and 60 feet wide, both buildings to have a concrete base; the smaller building to have a concrete base eight feet deep for the reason that this building was to be used to house heavy machinery. J.L. Kendall had constructed a number of buildings for the Vardaman Manufacturing Company prior to entering into this contract and he was told to build it "like the rest of them." The larger building had been completed and a barrel roof was being put on the smaller building or shed by Ebin Lee May and other persons when the building collapsed and resulted in the injury and death of May.
In the declaration the appellant alleged that "Gilder, manager and agent of the Vardaman Manufacturing Company, Inc., who undertook to draw and furnish the architectural plans and specifications for the construction of the building . . . . ., was not a competent architect to perform that service; that he lacked training in architecture to provide plans and specifications for the construction of said building; that he did not have the ability and knowledge to provide plans and specifications for the safe construction of the building on which Ebin Lee May, husband of plaintiff, was working. That it was negligence for the Vardaman Manufacturing Company, defendant, to adopt plans and specifications made by its manager, Gatlin Gilder, when he was incompetent, for the construction of said building, which plans were unsafe and inadequate, which act of negligence on the part of defendant was the direct and proximate cause of death of Ebin Lee May, who was killed in the crash of the building aforesaid, which plans were inadequate, unsafe, and dangerous."
The bill also alleged that J.L. Kendall, the contractor, was guilty of negligence based on the fact that he did not exercise ordinary care to furnish his servant a reasonable safe place in which to work.
Vardaman Manufacturing Company answered and in part admitted that Gilder, its manager, was not a competent architect; that he had no experience and training to provide plans and specifications for said building, and denied that Gilder furnished, or attempted to furnish, such plans; that he engaged the services of the defendant, J.L. Kendall, for the very reason that Gilder lacked the experience in such matters, and denied that such plans and specifications were adopted by it, and that such plans were made.
The appellee Kendall filed an affirmative defense that the deceased was an experienced carpenter and builder, and had worked regularly on said building from the beginning of its construction; that the deceased assumed the risk pertaining to the work. It was admitted in the pleadings filed by plaintiff that Ebin Lee May was an employee of J.L. Kendall, an independent contractor, who was constructing the said building for Vardaman Manufacturing Company.
The evidence in this case shows without dispute that the contract entered into was oral and that the building was to be built like one of the other buildings previously constructed by Kendall. No plans or specifications were furnished to Kendall by Gilder. The evidence also shows that one change in the building which collapsed was made by Gilder, and that was to wall up two sides of the shed to protect some machinery. It is admitted that May was an employee of Kendall, who hired him and paid him, and that all the employees were under the control of their employer, Kendall. See Regan, et al. v. Foxworth Veneer Company, 178 Miss. 654, 174 So. 48, and authorities there cited.
The appellant argues that where one serves as his own architect or fails to engage a competent architect to design or plan his building that he is guilty of negligence, and relies on the case of Looker v. Gulf Coast Fair, 81 So. 832 (Alabama). In this case the plans for the construction of a grandstand had been prepared by an architect. The stand collapsed while under construction and injured Looker. The appellant relies on dicta from that opinion. We do not agree with this dicta and decline to follow it in this case. In our opinion, this was not the type or kind of building to require the services of an architect. The record shows that Kendall had been in the construction and building business for about ten years; that he was experienced and had constructed a number of buildings for the Vardaman Manufacturing Company and obviously his work was satisfactory or Gilder would not have contracted with him to construct these two buildings. Therefore, we are of the opinion that Vardaman Manufacturing Company was not guilty of negligence.
In the case of City of Tupelo v. Payne, 176 Miss. 245, 168 So. 283, the Court held that the master must use ordinary care to provide a reasonably safe place for a servant to work is not applicable where progress of work constantly changes conditions as regards increase or diminution of safety and that hazards thus arising are regarded as ordinary risks assumed by the servant. The Court quoted from the rule announced in Gulf, Mobile and Northern Railroad Co. v. Brown, 143 Miss. 890, 108 So. 503, as follows:
"Appellant's position is that the obligation of the master to furnish his servant a reasonably safe place to work has no application to the facts of this case because appellee was employed, with others, to repair and make the very place safe, the unsafely of which caused his injury; that therefore he knew the place was unsafe and assumed the risk of such unsafety. The rule requiring the master to use ordinary care to provide a reasonably safe place for his servant to work is not applicable to a case in which the very work which the servant is employed to do is of such a nature that its progress is constantly changing the conditions as regards an increase or diminution of safety. The hazards arising thus are regarded as being the ordinary dangers and risks of the employment which are assumed by the servant when he accepts the employment. (Citing authorities) In Kentucky Coal Co. v. Nance, supra, the Court said: `Manifestly, this duty of providing a safe place is dependent upon the character of the work to be done there. Hence, when that work is one of construction, reconstruction, destruction, or repair, the risks which are incident to such places and kinds of work are assumed by the servants there employed'." See also Craig v. Craig, 192 Miss. 271, 5 So.2d 673.
When the appellant rested her case, the appellees made a motion to exclude the evidence and for a directed verdict, which motion was sustained by the court. Under the above cited authorities, we conclude that the judgment of the court below was correct, and the cause is therefore affirmed.
Affirmed.
McGehee, C.J., and Kyle, Ethridge and Rodgers, JJ., concur.