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Jackson v. John F. Beasley Const. Co.

OCTOBER 17, 1966.




Appeal from the Circuit Court of Cook County; the Hon. JOSEPH A. POWER, Judge, presiding. Judgment affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. This is a personal injury action brought by plaintiff against the three defendants under the common law of Missouri for injuries received when he fell from a "catwalk" in a building under construction. At the close of the plaintiff's case, the court directed a verdict for defendant Mississippi Valley. The jury returned a verdict in favor of defendant Beasley and a $90,000 verdict in favor of plaintiff against defendant Swift. The jury also specially found that plaintiff was not guilty of contributory negligence. Swift appeals from the judgment against it.

On appeal, Swift's principal contentions are (1) the judgment against Swift should be reversed because there was no evidence that it was guilty of any negligence toward the plaintiff; (2) plaintiff was guilty of contributory negligence as a matter of law; and (3) the court committed reversible error in the giving of instructions on behalf of plaintiff and Beasley and in refusing instructions and a special interrogatory tendered by Swift.

Swift, prior to October 15, 1956, the date plaintiff was injured, had entered into a number of prime contracts for the construction of a fertilizer plant in St. Joseph, Missouri. One of the prime contracts was with the A.C. Samford Company, which was to be responsible for "the construction and completion of a plant food manufacturing building, office building, pump house and roadways." Another prime contract was with M.L. Anderson, doing business as Kayo Anderson, not a defendant here. The provisions of this contract are not in the record, but the evidence indicates that Anderson had a machinery installation contract. A third prime contract was entered into with the Mississippi Valley Structural Steel Company, which was to do "all the structural and miscellaneous steel work, walkways and grating erected in place for a 144 foot by 410 foot single story plant food manufacturing building." Mississippi Valley, in turn, subcontracted with defendant John F. Beasley Construction to erect the structural steel work as it was fabricated and furnished by Mississippi Valley.

Both the contracts with Samford and with Mississippi Valley called for the work to be "constructed to the satisfaction of, and under the supervision and in accordance with the specifications and drawings prepared by E.A. Schiewe, the architect." Also, both contracts were signed on behalf of Swift by "E.A. Schiewe, Architect," who was manager or head of Swift's Construction Department. In each contract, the "Architect's status" provided that "he is not the agent of the owner, except in structural emergencies, and except when in special instances he is authorized by the owner to so act." The provisions also included "Architect's authority in emergencies":

"The architect has authority to stop the progress of the work whenever, in his opinion, such stoppage may be necessary to insure the proper execution of the contract. In an emergency affecting the safety of life or of the structure or of adjoining property, he has authority to make such changes or to order such work, extra to the contract, or otherwise, as may in his opinion be necessary."

During the erection of the plant, Harold R. Brown, a full-time employee of Swift Construction Department, was on the job as the "architect's representative" for approximately one year. It was his duty to see that the contractors complied with the terms of the contract. He checked the quality of the materials that were delivered to see that no substitutions were made. He was not a graduate engineer.

The plaintiff's testimony shows that he was a carpenter employed by Samford [not a defendant] and started to work on the building "around October 1, 1956." There were various other trades working there, and three catwalks, made of expanded metal, were used by the men "in going to and coming from their work whenever they were available to the men."

On October 15, 1956, he was working on the roof, and about 3:00 p.m. he had occasion to leave the roof to go to the rest room, which was on the ground level. He said, "I had occasion to get on a catwalk there. I had never been on this particular catwalk before. I was going to move east, on this catwalk, to a ladder that was in front of me. That ladder led down; it was made of metal. . . . I was walking along. Something unusual very definitely did happen to me. I fell through a hole in the catwalk, about 36 feet. Below me on the ground were some conveyor forms. The surface of the floor was concrete."

It was the first time plaintiff had used that particular catwalk, and he was "walking, with my eyes ahead facing the ladder, which was ten, fifteen feet or so from me — maybe a little further. I did not turn my head to talk to Russell about that time. When I turned my head to talk to Russell I was further back — five steps or so. That would put me ten — fifteen feet from the ladder, roughly. At the time I turned and talked to Russell I had stopped. . . . After I had this conversation with Mr. Russell, I started up again. Then I was looking in the general direction of the ladder. I never saw that missing area. The shadows obstructed my vision. The sun's rays was right back over my head. . . . My eyes were on the general area where I was walking. I was not walking with my head up in the air, and I wasn't afraid of becoming dizzy. I had been instructed never to look at your feet. Looking at a distance of about six or seven or eight feet ahead of me as I was walking along, I could look at the floor of the catwalk. It appears to be solid from an angle."

Russell Osborn, a fellow employee, testified on behalf of plaintiff. He was working about six feet above plaintiff and a little to the rear. Plaintiff was walking on the catwalk with his back toward him, and plaintiff looked back at him and said, "Let's go and get a cool drink of water." "Right immediately after he talked he fell. When he talked to me he glanced back at me. By glancing, he turned his head (indicating). Just shortly after he talked to me he said, `Oh' and disappeared from view." He further testified that neither he nor plaintiff had ever used this particular catwalk before the occurrence. After plaintiff fell, Osborn saw there was a piece of the catwalk missing — "about a three foot section."

Beasley workmen had left the jobsite on September 12, 1956, without having completed the catwalk from which plaintiff fell, because all the material required had not been shipped by Mississippi Valley. The catwalk, a permanent part of the structure, was about three feet wide with a railing on one side and was made of rust colored steel wire mesh.

Beasley's foreman, John T. Feltman, testified that all Beasley personnel left on September 12, 1956, and on that date he had occasion to check the job with Brown. "That is called sealing the job. It is a final inspection of the job to make sure that everything has been done according to their satisfaction. Mr. Brown and Mr. Blizzard [Beasley's job superintendent] accompanied me on that tour. We used a punch list . . . and as you go through the project, if a little minor things are needed to be changed, they will mark it down on this paper and in turn, those are the corrections that is needed to be made. That was done on this occasion. That is customary in the contractor business."

Feltman further testified that they discussed "this piece of expanded metal that was missing in this catwalk. Mr. Brown told us that if we would go ahead and put a plank over this open hole, that he would have this Steel Construction Company or some other construction company on the project put the metal in when it arrived on the jobsite. The metal piece was not available at that time because it was failed to be shipped by Mississippi Valley . . . and locally could not be purchased. . . . In accordance with Mr. Brown's suggestion, I put a two by twelve plank over the hole . . . and wired it down. They were my employees. I saw the job done. It was done when I left the job on September 12. After that I did not do any more work on the catwalk on that construction job." On cross-examination, he testified, "I suggested that they put a plank over it for safety precautions. I don't believe I recall whether it was Mr. Brown or I who said that it ought to be covered as a safety precaution. There were men other than ironworkers working on the building."

Swift's employee Brown testified that in the conversation on September 12, 1956, described by Feltman, he talked only with Paul Blizzard, the job superintendent, and "Mr. Feltman was standing there. I had no conversation with him at any time. . . . I pointed to this void in the grating of the catwalk and asked Mr. Blizzard if he knew that it was missing. He said that he did, that they didn't have any piece to put down at that point. I said, if I were you I would get it covered up. And he turned to Mr. Feltman and instructed him to cover it up. Feltman went right over as if to do it. I don't know whether he did it or not. I did not tell Mr. Blizzard that I would undertake to have someone else cover the void in the catwalk. Swift & Company had no employees other than I on the premises. I have no knowledge as to who actually completed the catwalk, or as to who finally installed the metal. I didn't personally see it done."

On October 15, 1956, he was informed that a man had fallen, and he called for an ambulance and went to the site of the occurrence and found plaintiff near the floor of the building. He looked at the catwalk and "saw a void in it. Later in the day I assume it was covered with some other material." He "never saw that opening uncovered after I had this conversation with Mr. Blizzard before he left the premises the first time."

Feltman also testified the about the first week of October, 1956, he returned and asked if the piece of catwalk had come in yet and was advised that it had not. He said that Brown told him that he would have another contractor install it when it arrived. Brown denied this.

James Micrander, an ironworker employed by Kayo Anderson, the machinery installer, went to work about October 4, 1956. From then until the occurrence, he and his co-workers used the instant catwalk several times a day. He was on it the day before, and the gap in the catwalk was covered then. On one occasion, he saw the planks removed and carpenters taking lumber up through the opening. The carpenters were employed by Samford.

Bob White, also employed by Anderson, saw planking over the gap, but it was not there continuously — "I saw that hole open occasions before this." He saw a lot of material being passed up when the hole was uncovered.

Marion Anderson, president of Kayo Anderson, said that in the course of his company's work, the catwalk in question, with the plank on it, was used as often as ten times a day.

Initially, Swift contends that it was not guilty of any negligence toward plaintiff because "it had no possession or control over the premises at the time of the accident, the same being in independent contractors which were constructing the plant," and that "Swift's only connection with plaintiff's accident was the fact that it had a representative on the job to see that the contracts were complied with," and "the erection was performed by independent contractors to which possession and control of the premises had been turned over and it had not yet been resumed by Swift at the time of the accident. Nevertheless, the trial court held, at the conclusion of all the evidence, that Swift was in control as a matter of law."

Swift argues that Samford and Mississippi Valley were plainly independent contractors under the law of Missouri (Williamson v. Southwestern Bell Tel. Co. (Mo), 265 S.W.2d 354, 358), for whose negligent acts Swift is not liable, and "the employer of an independent contractor does not become liable as a principal because he engages an architect to supervise the work and see that it is done according to the construction contract. . . . Ordinarily the owner of premises is not required to inspect the work of an independent contractor to determine whether the work is being done in a way that will provide a safe place for the contractor's employees to work." Martin v. First Nat. of Independence Co. (Mo), 372 S.W.2d 919.

As to Brown's presence on the job, Swift argues, "No case in Missouri, or anywhere else for that matter, holds that a limited power of intervention in the case of emergencies and the mere presence of an employee to see that contracts are properly performed precludes an independent contractor relationship." Citations include Boulch v. John B. Gutmann Const. Co., Inc. (Mo App), 366 S.W.2d 21, 29, where the court said:

"The admission by Harder [employee of subcontractor] that the foreman of the Gutmann Company [general contractor] was present at all times to check whether the work done by him complied with the specifications on the job was no more than that of the ordinary general contractor in seeing that the subcontractor performed ...

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