Lanza v. Carroll

• Decision Date: 08 November 1954
• Docket Number: No. 15016,15017,15018.,15016
• Citation: 216 F.2d 808
• Parties: LANZA v. CARROLL et al. LANZA v. JENNINGS et al. LANZA v. SAINT PAUL-MERCURY INDEMNITY CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

216 F.2d 808 (1954)

LANZA v. CARROLL et al. LANZA v. JENNINGS et al.

LANZA v. SAINT PAUL-MERCURY INDEMNITY CO. et al.

Nos. 15016, 15017, 15018.

United States Court of Appeals, Eighth Circuit.

July 30, 1954.

Rehearing Denied August 24, 1954.

Rehearing Denied December 15, 1954.

Writ of Certiorari Granted November 8, 1954.

COPYRIGHT MATERIAL OMITTED

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., on the brief), for appellees.

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

Rehearing Denied in 15016 August 24, 1954.

Rehearing Denied in 15017, 15018 December 15, 1954.

Writ of Certiorari Granted in 15016, November 8, 1954. See 75 S.Ct. 113.

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 long, 5 inches wide, and seven-eighths 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 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 rails 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 appellees, Carroll, Jennings and Sisney, have been paid workmen's compensation benefits by the Indemnity Company. Jennings and Sisney were paid benefits under the laws of Arkansas. Carroll was paid benefits for 34 weeks until October 10, 1953, under the Missouri law. On that date he requested that his benefits be paid under the law of Arkansas, and they have been paid to him since then under that law.

In his answers to the three actions Lanza denied that the employees of Hogan were injured by reason of his negligence or that of his employees, and alleged that Hogan's employees were guilty of contributory negligence or that they assumed the risk of the injuries suffered by them. Prior to the trial Lanza filed motions for summary judgment in each case on the ground that the remedies provided by the workmen's compensation acts were exclusive. The motions were overruled by the trial court. At the conclusion of plaintiffs' evidence the motions were renewed and were again overruled. After the conclusion of the trial judgment was entered in favor of the Indemnity Company, Hogan and Sisney for $22,500; in favor of Carroll for $18,000; and in favor of Jennings in the sum of $6,000, from which judgments Lanza has appealed.

Appellant Lanza contends here:

1. That the remedies provided by the Arkansas Workmen's Compensation Act are exclusive, and that appellant is entitled to judgment as a matter of law in all three cases;

2. That the remedies provided by the Missouri law are exclusive, and that appellant is entitled to judgment in the Carroll case as a matter of law; and

3. That it cannot be consistently held that appellant was negligent and that Carroll, Jennings and Sisney were free of contributory negligence.

It is conceded by all parties that the Workmen's Compensation Law of Missouri is exclusive and that Carroll who was employed in Missouri and who accepted 34 payments under that law could not maintain his action unless his election on October 10, 1953, to receive his compensation benefits under the Arkansas law is sufficient to sustain the judgment in his favor.

The Arkansas statute, § 81-1304, Ark. Stat.1947, 1951 Supp., provides also that "The rights and remedies herein granted to an employee subject to the provisions of this Act, on account of injury or death, shall be exclusive of all other rights and remedies of such employee * * *."

It is contended by appellees, and it was held by the court, that Lanza was liable to them as a "third party" under § 81-1340, Ark.Stats.1947, 1951 Supp., which provides:

"Third party liability. — (a) Liability unaffected. (1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for such injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in such action. If they, or either of them, join in such action they shall be entitled to a first lien upon two thirds of the net proceeds recovered in such action that remain after the payment of the reasonable cost of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.

* * * *

"(b) Subrogation. An employer or carrier liable for

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