116 F.Supp. 491 (W.D.Ark. 1953), Civ. 352, Carroll v. Lanza

Docket Nº:Civ. 352
Citation:116 F.Supp. 491
Party Name:Carroll v. Lanza
Case Date:November 13, 1953
Court:United States District Courts, 8th Circuit, Western District of Arkansas
 
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Page 491

116 F.Supp. 491 (W.D.Ark. 1953)

CARROLL

v.

LANZA et al.

JENNINGS

v.

LANZA et al.

ST. PAUL-MERCURY INDEMNITY Co. et al.

v.

LANZA.

Civ. Nos. 352, 353, 356.

United States District Court, W.D. Arkansas

Nov. 13, 1953

Page 492

[Copyrighted Material Omitted]

Page 493

Goodwin & Riffel, Little Rock, Ark., Allen, Woolsey & Fisher, Springfield, Mo., A. N. Wood, Yellville, Ark., for plaintiffs.

Wright, Harrison, Lindsey & Upton, Little Rock, Ark., Shaw, Jones & Shaw, Ft. Smith, Ark., for defendant.

JOHN E. MILLER, District Judge.

Statement

Hereinafter, the plaintiff, Virgil C. Carroll, will be referred to as Carroll; the plaintiff, Paul A. Jennings, as Jennings; the plaintiff, Saint Paul-Mercury Indemnity Company, as the Indemnity Company; the plaintiff, Lonnie Sisney, as Sinsney; the plaintiff and intervenor, Harry B. Hogan, as Hogan; and the defendant, M. Lanza, as Lanza.

The plaintiffs, Carroll and Jennings, each filed separate suits against the defendant, Lanza, in the Circuit Court of Boxter County, Arkansas, and on March 20, 1953, both of the cases were removed by the defendant to this Court on the grounds of diversity of citizenship and the amount involved. On March 27, 1953, the said defendant filed answers in the above mentioned cases.

On June 13, 1953, the plaintiffs, Sisney, Hogan and the Indemnity Company filed their complaint against the defendant, Lanza.

On June 27, 1953, the Court entered orders permitting Hogan and the Indemnity Company to intervene as plaintiffs in the Carroll and Jennings cases.

The defendant, on July 18, 1953, filed his answer to the complaint of Sisney, Hogan and the Indemnity Company.

The three cases all arose out of the same occurrence, and at the pre-trial conference on August 31, 1953, counsel for all the parties agreed that the cases should be consolidated for trial and final disposition. The Court entered a pretrial order consolidating the cases, and further reciting that plaintiffs would not insist upon the application of the doctrine of res ipsa loquitur but that the cases should be tried upon a negligence theory.

On September 1, 1953, upon consent of counsel for the parties, the Court entered an order striking the cases from the trial calendar in the Harrison Division, upon agreement of the said counsel that the cases be tried to the Court, without a jury, at Fort Smith, in the

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Western District of Arkansas, at a later date.

On October 16, 1953, defendant filed motions for summary judgment in each of the three cases, and on the same date the Court denied the defendant's said motions in the Sisney and Jennings cases on the authority of Anderson v. Sanderson & Porter, 8 Cir., 146 F.2d 58. The Court deferred its ruling on defendant's motion for summary judgment in the Carroll case until the day of the trial, at which time the Court denied the motion for the reason that there appeared from an examination of the affidavits and depositions on file in support of and in opposition to the motion a question of fact regarding the alleged election of Carroll to accept compensation benefits under the Missouri Workmen's Compensation Law, V.A.M.S. § 287.010 et seq., instead of the Arkansas Act, Ark.Stats. § 81-1301 et seq.

On November 5 and 6, 1953, the cases were tried to the Court, without a jury, and at the conclusion of plaintiffs' evidence, the defendant moved for judgment in its favor in each of the three cases on the merits. The defendant also moved for judgment in the Carroll case on the specific ground that he had elected to accept compensation payments under the Missouri Workmen's Compensation Law, and that such remedy was exclusive, thus precluding the institution of this suit by Carroll. The Court denied defendant's motion in all of the cases on the merits, but deferred its decision on the specific motion attacking the jurisdiction of the Court in the Carroll case until the conclusion of the trial on the merits.

Now, the Court, having considered the pleadings, ore tenus testimony of the witnesses, exhibits, stipulations, written briefs and oral arguments of the attorneys for the respective parties, makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact

I.

The plaintiffs, Carroll and Hogan, and citizens and residents of Missouri. The plaintiffs, Jennings and Sisney, are citizens and residents of Arkansas. The plaintiff, Indemnity Company, is a corporation organized and existing under the laws of Delaware, and is the insurance company carrying workmen's compensation insurance on Hogan and his employees. The defendant, Lanza, is a citizen and resident of Louisiana. The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000 in each of the three cases.

II.

Carroll was a foreman and a regular employee of Hogan and had been for several years. Both Carroll and Hogan were and are residents of Missouri and the employment contract between them was entered into in that State. The accident involved herein occurred in Arkansas.

The defendant, Lanza, had a contract with the United States Government in connection with the construction of the Bull Shoals Dam in Arkansas. On January 22, 1952, Hogan entered into a contract with Lanza whereby Hogan agreed to furnish all labor, material and necessary scaffolds and ladders to perform all the general painting required by the contract Lanza had with the Government. A supplemental contract was entered into for the painting of the 'trash racks' as set forth in finding of fact Number 3.

Hogan had secured workmen's compensation insurance from the Indemnity Company covering his employees in both Arkansas and Missouri. Subsequent to the accident, Carroll received thirty-four weekly payments of $30 each in accordance with the Workmen's Compensation Law of Missouri. These payments were made by drafts drawn on the Indemnity Company and were delivered to Carroll by Mr. Fisher of the firm of Allen, Woolsey & Fisher, attorneys representing the Indemnity Company.

In March, 1953, Carroll instituted the present suit. Sometime prior to October 10, 1953, defendant's attorney transmitted to Carroll's attorney a proposed stipulation to the effect that Carroll was

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receiving compensation under the Missouri law. The stipulation was not executed and on October 10, 1953, after consulting his attorney, Carroll wrote to the Indemnity Company informing said company that he desired to receive his compensation under the Arkansas Workmen's Compensation Law rather than the Missouri law. Prior to consulting his attorney on October 10, 1953, Carroll did not know that he had the right to receive compensation under the Arkansas law, and, in fact, he did not know that the $30 weekly payments were being made under the Missouri law. In other words, Mr. Fisher and the Indemnity Company handled the matter, and all Carroll knew was that he was receiving $30 per week compensation from the Indemnity Company. Carroll signed nothing acknowledging the fact that he was receiving compensation under the Missouri law, and no report of injury or any other notice of the accident or injury to Carroll was ever filed by Carroll with the Division of Workmen's Compensation of the State of Missouri, but he depended upon his present attorneys, Allen, Woolsey & Fisher, who were and are the attorneys for the Indemnity Company, to look after the collection and payment of benefits under the Workmen's Compensation Act.

After receiving the letter from Mr. Carroll, the Indemnity Company wrote to the Arkansas Workmen's Compensation Commission concerning Carroll's desire to receive compensation pursuant to the Arkansas law. In its letter to the Commission the Indemnity Company enclosed Employer's First Report of Industrial Injury, Form A-8; Report of Initial Payment of Compensation, Form A-9; Surgeon's Report, Form A-12; and a photostatic copy of Carroll's letter to the Indemnity Company. Upon the filing of the above mentioned papers, the Arkansas Workmen's Compensation Commission accepted said filing and assigned thereto its Claim No. A329223 and Carroll is now receiving weekly benefits of $25.00 under the Workmen's Compensation Laws of Arkansas.

III.

By letter of November 7, 1952, Hogan submitted to Lanza a bid to paint eighteen 'trash racks'. The letter provided, inter alia, 'After racks have been set in upright position and arranged so as to be accessible for painting, all areas are to be cleaned of rust by wire brushing and sandpaper and given three costs of Coal Tar Paint as specified by Army Engineers. * * * The above price does not include sand-blasting or setting racks in position for painting.' On November 14, 1952, defendant, by letter, authorized Hogan to proceed with the painting 'as proposed in your letter dated November 7, 1952.'

It was necessary to enter into this supplemental contract because the original contract between Lanza and the Government did not cover the painting of the trash racks.

The 'trash racks' referred to herein are constructed as follows:

The outside mental frames when in an upright position are approximately 13 feet long, 10 feet high, and 12 inches wide. Inside the frames there are four cross bars extending across said frames parallel to the ground and about 2 feet apart. Also inside the frames there are 25 feet 'fins' which are approximately 10 feet long, 5 inches wide, and 7/8 of an inch think. When the racks are in an upright position, the fins are perpendicular to the ground and 10 feet high, i.e., approximately the height of the rack. The sides of the fins which are 5 inches wide are parallel to the ten-foot ends of the outside frames. Approximately 3 inches of the width of each...

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