Whittenberg Engineering & Const. Co. v. Liberty Mut. Ins. Co.

• Citation: 390 S.W.2d 877
• Parties: WHITTENBERG ENGINEERING & CONSTRUCTION COMPANY, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
• Decision Date: 07 May 1965
• Court: United States State Supreme Court (Kentucky)

Page 877

390 S.W.2d 877

WHITTENBERG ENGINEERING & CONSTRUCTION COMPANY, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.

Court of Appeals of Kentucky.

May 7, 1965.

Rehearing Denied June 25, 1965.

William Mellor, Louisville, for appellant.

James W. Hendricks, Thomas W. Speckman, Gavin H. Cochran, Marshall, Cochran, Heyburn & Wells, Louisville, for appellee.

SCOTT REED, Special Commissioner.

This is an action for indemnity. The appellee, Liberty Mutual Insurance Company, was the workmen's compensation insurer of a subcontractor. Two employees of the subcontractor were injured on equipment owned by the general contractor who was the appellant, Whittenberg Engineering and Construction Company, and furnished by it to the subcontractor. Liberty claimed it was entitled to indemnity from Whittenberg in the amount of workmen's compensation benefits paid by it to the injured employees because it was Whittenberg's negligence that caused it to be liable for and to make the payments.

A trial by jury resulted in a verdict in favor of Liberty to the extent of the benefits paid the two injured employees, amounting to $23,281.58. This verdict was returned on January 15, 1963. The next day Liberty tendered a judgment to the trial court adjudging it entitled to the amount of the verdict and the judgment was entered. Two days later, on January 18, 1963, Liberty tendered to the trial court an amended judgment which likewise adjudged that it was entitled to recover the amount of the verdict. On that same day Whittenberg paid the judgment and filed notice of appeal to this court. On February 14, 1963, twenty-nine days after the first judgment was entered, Liberty tendered a second amended judgment and for the first time claimed interest on the amount of the verdict from the date of payment to the injured employees. This motion recited that it was filed under CR 60.01. The trial court overruled the motion to amend on the ground that it had no right after ten days to modify or amend the judgment.

Whittenberg appeals from the verdict and judgment against it and Liberty cross-appeals from the action of the trial court in refusing to amend the judgment so as to allow it prior interest on the amount of the verdict.

It appears that Whittenberg had a general contract to construct a hospital in Louisville, Kentucky. It subcontracted the plastering work on the project to Charles J. Knight & Sons (hereinafter called Knight). As part of the subcontract Knight agreed to furnish workmen's compensation insurance on its employees working on the project and to give Whittenberg evidence of such coverage. Knight insured its liability for workmen's compensation payments to its employees working on this project with Liberty. Liberty notified Whittenberg that it had effected the insurance and agreed to give Whittenberg ten days' notice of any cancellation of the coverage.

During its performance of the general contract Whittenberg constructed and maintained a hoist for the hauling of materials. Whittenberg made this hoist available to Knight for use in performing Knight's subcontract for the plastering, though on all occasions and particularly on the occasion in question Whittenberg's employees were in charge of maintaining and operating the hoist.

On the occasion which gave rise to this action two employees of Knight's were riding on the hoist for the purpose of steadying some material which was being used in the performance of the project. The hoist fell about 70 feet and Knight's two employees were injured.

One of the injured employees brought an action against Whittenberg for negligence and sought common law damages. Liberty intervened in this action and asked that it be subrogated (cf. KRS 342.055) to the extent of compensation benefits paid by it to the suing employee in any recovery he might make. Whittenberg in this action by the employee moved for and was granted a summary judgment dismissing the employee's complaint and the intervening complaint of Liberty.

Later Liberty filed the instant action against Whittenberg for indemnity, alleging that Whittenberg's negligence caused the loss. Whittenberg contended that the action was barred by the former judgment entered in the injured employee's action; that Liberty was not entitled to indemnity in any event; and finally that Whittenberg was not negligent under the circumstances presented because the injured employees of the subcontractor, Knight, were merely licensees or trespassers on the hoist and no violation of duty to them by Whittenberg was shown. The trial court overruled these defenses and submitted the case to a jury under instructions to which no objection was made. The jury found that Whittenberg was negligent on the occasion mentioned and that its negligence caused the injury to Knight's employees.

Whittenberg argues that it was not negligent on the occasion of the injury to the two employees because the injured employees were merely licensees or trespassers while riding on the hoist. The hoist was constructed and maintained by Whittenberg for hauling materials to and from the upper floors of the hospital building under construction. From time to time Whittenberg allowed subcontractors to use the hoist operated by a paid employee of Whittenberg in return for an hourly charge paid to Whittenberg.

There was a sign on the hoist which said 'Keep off, no riders'.

There was testimony that Whittenberg considered the hoist to be for the hauling of materials only and that employees were instructed not to ride on it. There was also testimony that it was a general practice on the job for employees of Knight, as well as employees of Whittenberg, to ride the hoist at least for the purpose of loading and steadying materials being transported on it.

In any event, Whittenberg's argument is confined to the proposition that the employees of Knight who loaded material onto the hoist and were riding it for the purpose of steadying the material were merely licensees or trespassers and as the proof showed that the hoist dropped because of defective construction and maintenance of the hoist, Whittenberg violated no duty to the injured employees and was not negligent.

Whittenberg relies upon two cases to sustain its position. The first is Ockerman v. Faulkner's Garage, Inc., Ky., 261 S.W.2d 296, wherein it was held as a matter of law that there was no liability to a licensee by reason of the fall of a defective elevator. This was the case of a minister who went to a garage building to see the owner about a church improvement program. The minister was told that the owner was on the second floor. The minister undertook to ride a freight elevator consisting of a small platform without guard rails. The elevator slipped and fell a few feet until it was haulted by an automatic stop. The minister lost his balance and fell to the first floor. This court held that the minister was not on the premises as a business visitor to whom the possessor owed a duty to discover the actual condition of the premises and then make them safe or warn him of the dangerous condition. The court took the view that the minister was a licensee to whom the garage owed no duty as to the condition of the premises other than that of not knowingly letting him run upon a hidden peril or wilfully or wantonly causing him harm. The other case relied upon by Whittenberg is Brauner v. Leutz, 293 Ky. 406, 169 S.W.2d 4, in which we held as a matter of law that there was no liability on the part of an independent contractor carpenter to the employee of an independent contractor painter for injuries resulting from the fall of a scaffold which the painter borrowed from the carpenter. It was held that the painter was at most a licensee so far as the latter was concerned and that he took the facilities as he found them.

In both of these instances the visitor to the premises was not on a mission for the business benefit of himself and the person against whom liability was asserted. In the instant case, however, Knight's two employees were engaged in performing work directly connected with the construction of the hospital. They were loading and transporting materials to be used in the construction of the hospital. Whittenberg was under contract as the general contractor to effect the construction of the hospital, and Knight, the employer of the two injured employees, was a subcontractor under Whittenberg to perform this construction. Therefore, there is no difficulty in concluding that the two injured employees on the occasion of their injury were on a mission for the mutual business benefit of their employer, Knight, and Whittenberg, the general contractor. We conclude that on the occasion of their injury the injured employees were business visitors or invitees so far as the use of the hoist was concerned and that Whittenberg had a duty to exercise ordinary care to avoid injury to them. See 2 Harper and James, The Law of Torts, Section 27-12, page 1478.

If Whittenberg failed to exercise ordinary care in the construction, installation and maintenance of the hoist and its failure to exercise ordinary care was the cause of the injury to the two injured employees then Whittenberg was negligent on the occasion complained of and its negligence was the cause of the injuries.

The testimony concerning the sign placed on the hoist by Whittenberg apparently reading 'Keep off, no riders', was vague and uncertain. The size of the sign was...