Associated Engineers, Inc. v. Job

Citation370 F.2d 633
Decision Date21 February 1967
Docket NumberNo. 18140-18142.,18140-18142.
PartiesASSOCIATED ENGINEERS, INC., a Montana Corporation, Appellant, v. Dallas JOB, Grand Electric Cooperative, Inc., a Corporation, and Troy Cannon Construction Company, Inc., a Kansas Corporation, Appellees. GRAND ELECTRIC COOPERATIVE, INC., a Corporation, Appellant, v. Dallas JOB, Troy Cannon Construction Company, Inc., a Kansas Corporation, and Associated Engineers, Inc., a Montana Corporation, Appellees. TROY CANNON CONSTRUCTION COMPANY, Inc., a Kansas Corporation, Appellant, v. Dallas JOB, Grand Electric Cooperative, Inc., a Corporation, and Associated Engineers, Inc., a Montana Corporation, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

COPYRIGHT MATERIAL OMITTED

Donald J. Porter, of Martens, Goldsmith, May & Porter, Pierre, S. D., for Associated Engineers, Inc.

Chas. H. Whiting, of Whiting, Lynn, Freiberg & Shultz, Rapid City, S. D., for Grand Electric Cooperative, Inc.

William G. Porter, of Costello, Porter, Hill, Banks & Nelson, Rapid City, S. D., for Troy Cannon Const. Co., Inc.

Joseph M. Butler, of Bangs, McCullen, Butler & Foye, Rapid City, S. D., for Dallas Job, and filed brief with Thomas E. Simmons, Rapid City, S. D., and also Thompson, Lundberg & Nodland, Bismarck, N. D.

Before VOGEL, Chief Judge, BLACKMUN, Circuit Judge, and STEPHENSON, District Judge.

BLACKMUN, Circuit Judge.

These appeals present rather intricate questions of negligence and indemnity.

The plaintiff, Dallas Job, was seriously injured on February 9, 1962, when he sustained an electrical shock while engaged in line work near Stoneville, South Dakota. He has been awarded a judgment for $200,000 against Grand Electric Cooperative, Inc., Associated Engineers, Inc., and Troy Cannon Construction Company, Inc. The judgment provides, however, (a) that, as among themselves, Associated, Troy and Grand "each shall not be obligated in an amount in excess of $66,666.66; (b) that Troy's liability to the plaintiff "is limited to the sum of $66,666.66"; and (c) that Troy is to be credited with the workmen's compensation payments it has made. Grand, Troy, and Associated take their separate appeals.

The plaintiff's injury was incurred in the course of his employment with Troy. He has received from Troy compensation benefits prescribed by the South Dakota Workmen's Compensation Act, S.D.Code, Title 64 (1939), as amended. Troy was the contractor for the construction of additions to electric power lines owned by Grand. Associated was the engineering firm retained by Grand to design and supervise the construction. Thus Grand was the owner, Associated the engineer, Troy the contractor, and plaintiff the employee of Troy.

The plaintiff was precluded by the State's Workmen's Compensation Act, S.D.Code §§ 64.0103 and 64.0104 (1939), from suing his employer Troy for his injury. He instituted this diversity negligence action against Grand and, by later amendment, against Associated. Grand brought Troy into the litigation by a third-party complaint for indemnity for any amount Grand might be required to pay the plaintiff. In addition, Grand claimed indemnity from Associated, Associated cross-claimed against both Grand and Troy, and Troy counter-claimed for the compensation payments it made to Job.1 Each defendant also denied negligence on its part and alleged assumption of risk by the plaintiff and contributory negligence on his part.

The case was tried to a jury upon special verdicts submitted pursuant to Rule 49(a), Fed.R.Civ.P. The jury found that each of the three defendants was negligent; that the negligence of each was a proximate cause of the plaintiff's injury; that the plaintiff was contributorily negligent; that, however, his contributory negligence was "slight and that of the defendants, or either of them gross";2 that the plaintiff did not assume the risk of his injury; and that he was entitled to an award of $200,000.

The parties stipulated that the court was to determine all fact and legal issues relating to indemnity. Accordingly, the court found, in agreement with the jury, that each of the three defendants was negligent in various respects, "that each of the Defendants was one-third negligent, and that the negligence of each of them contributed one-third to Job's injury". It further found that Troy, by its construction contract with Grand, had obligated itself to hold Grand harmless "for injuries to persons happening by reason of any negligence by Troy". It found and concluded that, despite the presence of the State's workmen's compensation law (by virtue of which "Grand and Associated would not be entitled to recover contribution from Troy as a joint tort feasor"), Troy and Grand intended "at the very least that Troy should indemnify Grand to the extent one-third that Troy's negligence contributed to the injury". The other indemnity claims (except that of Troy for the recovery of its compensation payments) were disallowed.

Thus, plaintiff Job was given a direct judgment against Troy "to the extent of Troy's indemnity obligation", the court feeling that this "will do no substantial prejudice to any of the parties". The effect of the judgment, however, was to divide the benefit of any indemnity liability on the part of Troy equally between Grand and Associated.

On these appeals Grand and Troy do not deny negligence on their respective parts. Associated contends that it owed no affirmative duty to the plaintiff to protect him from injury and that the plaintiff was not injured by any act on its part. All three argue that, as a matter of law, the plaintiff's contributory negligence precludes recovery. Associated and Troy made similar contentions with respect to assumption of risk. Associated argues that the court erred in denying its claim of indemnity against Grand. Grand contends that the court correctly sustained its indemnity claim against Troy. Grand and Troy agree, however, that if Grand is entitled to anything from Troy, it is complete indemnification for the amount which Grand may be required to pay the plaintiff. There are complaints as to various aspects of the court's instructions. The sufficiency of the interrogatories to sustain the judgment is also questioned. There is no attack upon Job's judgment so far as its amount is concerned.

The evidence. In 1961 Grand agreed with the United States Air Force to provide electrical service to Minuteman missile sites in South Dakota. This necessitated both the installation of new poles by Grand and the addition of new lines on existing poles. It is the latter, known as "conversion work", with which we are here concerned. The project was financed through a loan obtained by Grand from the Rural Electrification Administration.

Construction began in late October. The conversion work consisted of adding an 8-foot cross-arm and two braces to each existing pole and of attaching a new line at each end of the cross-arm. The poles already carried a high voltage hot line at their top and a neutral line about three feet below their top. The new cross-arm was placed midway between these two existing lines. The construction contract provided that work was to be done on the poles "with the lines deenergized". In recognition of the needs of consumers, however, the contract contemplated that the lines should remain energized when this did not interfere with the work. It was provided that lines might be deenergized at Troy's request from 8:30 to 11:00 a. m., and from 1:30 to 4:30 p. m., Monday through Friday. Troy was directed to schedule its work accordingly. However, it was also provided that Troy would notify Grand when to deenergize, specifying the desired lines, and also notify Grand "in writing or in such other manner as the circumstances permit" when the lines could be reenergized safely each day. Grand itself was to deenergize and reenergize.

The construction contract did not specify any procedure for notifying the various Troy employees to stop work in anticipation of reenergization. At times, however, as many as four crews were spread along the line over a distance as great as seven miles. However, the precise time of reenergization varied somewhat from day to day. The usual procedure was for Leach, Troy's superintendent, to drive along the line and advise each employee who had pole climbing duties that reenergization was imminent and to stay off the poles. He would then tell Grand's switchman that the line was clear and could be reenergized.

At the time of the accident the plaintiff was 28 years of age. Most of his life had been spent on his family's North Dakota farm. He had an eighth grade education and some training and a diploma in diesel engine work. He had served nearly two years in the armed forces as a truck driver. His work experience had been primarily on the farm but he had engaged in some mechanical work, including the repair of automobiles and tractors.

In the latter part of 1961 the plaintiff received word indirectly from a cousin, Larry Job, "who was working on lines", that employees were needed at Faith, South Dakota. He went there, spoke with Larry and with Troy superintendent Leach, and was hired without being questioned as to his experience in electrical construction. He started early in November, worked on the ground for a time and then climbed poles. He once suffered a "skittish" feeling while climbing.

The accident occurred on a pole about three and a half miles west of the switching point at Stoneville. The plaintiff began work that morning with ground duties. He then strung wire. This entailed climbing and laying wire over the cross-arms. He continued this work after lunch, moving to the west. Toward the end of the afternoon he reached a point about a half mile west of the scene of the accident. There he met James Wahl who had been working ahead of him laying on the ground the wire which the plaintiff was hanging on the cross-arms. Neither the...

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  • United States v. Seckinger
    • United States
    • U.S. Supreme Court
    • March 9, 1970
    ...a faultless indemnitor unless this intention appeared with particular clarity from the contract. See, e.g., Associated Engineers, Inc. v. Job, 370 F.2d 633, 651 (C.A.8th Cir. 1966), cert. denied, sub nom. Troy v. Cannon Const. Co. v. Job, 389 U.S. 823, 88 S.Ct. 59, 19 L.Ed.2d 77 9. In conte......
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