216 F.2d 808 (8th Cir. 1954), 15016, Lanza v. Carroll

Docket Nº:15016, 15017, 15018.
Citation:216 F.2d 808
Case Date:July 30, 1954
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 808

216 F.2d 808 (8th Cir. 1954)



CARROLL et al.







Nos. 15016, 15017, 15018.

United States Court of Appeals, Eighth Circuit.

July 30, 1954

Rehearing Denied in 15016 Aug. 24, 1954.

Rehearing Denied in 15017, 15018 Dec. 15, 1954.

Page 809

[Copyrighted Material Omitted]

Page 810

Alston Jennings, Little Rock, Ark. (Bruce H. Shaw, Fort Smith, Ark., on the brief), for appellant.

Shields M. Goodwin, Little Rock, Ark., and Harold J. Fisher, Springfield, Mo. (Allen, Woolsey & Fisher, Springfield, Mo., Arthur N. Wood, Yellville, Ark., and Goodwin & Riffel, Little Rock, Ark., and Goodwin & Riffel, Little Rock, Ark., on

Before GARDNER, Chief Judge, and WOODROUGH and THOMAS, Circuit Judges.

THOMAS, Circuit Judge.

These three cases were consolidated for trial in the district court, tried to the court without a jury, judgments were entered in each case for plaintiffs and defendant appeals. The actions are all for damages for personal injuries to employees of a subcontractor, and Nos. 15, 017 and 15, 018 present one common question, namely, may a prime contractor be held liable for damages as a 'third-party' within the meaning of the Arkansas statute, § 81-1340, Ark.Stats., 1947, 1951 Supp., in an action brought by an employee of the subcontractor to recover damages for personal injuries sustained while at work on the project covered by the subcontract? No. 15, 016 presents the question whether the rights of the parties are determined by the laws of Arkansas or the laws of Missouri for damages for an injury sustained in the same accident as were the injuries complained of in Nos. 15, 017 and 15, 018.

The accident in which the injuries complained of arose occurred in Arkansas on January 26, 1953. The actions in the Carroll case, No. 15, 016, and the Jennings case, No. 15, 017, were brought in the state court of Arkansas and removed to the district court on the ground of diversity. The Saint Paul-Mercury Indemnity Company case, No. 15, 018, was brought in the federal district court in the first instance, jurisdiction being predicated on diversity of citizenship.

The defendant Lanza is a citizen of Louisiana. The plaintiffs Hogan and Carroll are both citizens and residents of Missouri. Jennings and Sisney are citizens of Arkansas. The Indemnity Company is a Delaware corporation and carries the workmen's compensation insurance on Hogan for the benefit of his employees in both Missouri and Arkansas.

Carroll was a foreman and a regular employee of Hogan and had been for several years before the circumstances involved in this case occurred.

The defendant Lanza had a contract with the United States Government in connection with the construction of the Bull Shoals dam in Baxter County, Arkansas. On January 22, 1952, Hogan entered into a contract with Lanza, by the terms of which he agreed to furnish all labor and material and to do all the painting required by the Lanza contract. But there was a special contract for doing the job involved in these cases. On November 7, 1952, Hogan submitted a bid to Lanza by letter to paint 18 'trash racks', saying 'After racks have been set in upright position and arranged so as to be accessible for painting, all areas * * * are to be given three coats of Coal Tar Paint as specified by Army Engineers * * *.' The offer was accepted on November 14, 1952.

A 'trash rack' consists of a metal frame approximately 13 feet long, 10 feet high and 12 inches wide. Inside the frame are four cross bars parallel to the ground and about 2 feet apart. Inside the frame there are, also, 25 steel fins, each of which is about 10 feet ling, 5 inches wide, and seven-eights of an inch thick. When the rack is in an upright position the fins are perpendicular to the ground and approximately the height of the rack. The fins in each rack weighed about 4, 000 pounds and the remainder of the rack about 1, 400 pounds, so that each rack weighed approximately 5, 400 pounds.

In November, 1952, Lanza's employees delivered the racks to the place where they were to be painted south of the Bull Shoals Dam on the east side of the river. At first they were stacked on the ground in piles of three racks each, and while

Page 811

they were in that position Carroll, Jennings and Sisney, employees of Hogan, the sub-contractor, painted the outer surface of the racks and some of the fins. Thereafter defendant Lanza's employees set the racks in an upright position to be painted by Hogan's employees.

When the racks were first set up to be painted they were placed on parallel metal railroad rails resting on wooden planks on the ground. The racks were placed about three feet apart and held in place by spreader braces. Ten racks were set up in a row and 8 racks in a parallel row with an aisle about 4 feet wide between them. The racks in each row were attached to each other by braces and the end racks were supported by two guy wires attached to metal pins in the ground. All of this work was done by Lanza's employees and after it was completed Hogan's employees proceeded with the painting.

The railroad upon which the racks had been placed belonged to the United States government, and upon its request Lanza's employees undertook on January 26, 1953, to remove the rails and to substitute for them railroad ties. The braces were removed and by the use of pry poles they undertook to lift the racks up slightly to remove the rails and to place in their stead the railroad ties. The spreader braces were first removed and then the work of substitution proceeded. While this work was going on Hogan's employees continued painting on the 8-rack row.

The ground on which the racks were placed was filled with dirt and was soft and wet at the time.

About 11:30 a.m. one of the guy wires on the 8-rack row broke and all the racks fell; and Carroll, Jennings and Sisney were severely injured. The court found that they did not know that Lanza's employees had begun work on the 8-rack row at the time.

The states of Missouri and Arkansas both have Workmen's Compensation laws. The Saint Paul-Mercury Indemnity Company is the workmen's compensation insurer for the Harry B. Hogan Painting Company in connection with the injury suffered by Virgil G. Carroll when the trash racks fell. The court entered orders permitting Hogan and the Indemnity Company to intervene as plaintiffs in the cases brought by Carroll and Jennings. All the...

To continue reading