Carstens Plumbing & Heating Company v. Epley

• Decision Date: 31 March 1965
• Docket Number: No. 17757,17758.,17757
• Citation: 342 F.2d 830
• Parties: CARSTENS PLUMBING & HEATING COMPANY, Appellant, v. Betty Lou EPLEY, Executrix of the Estate of Harvey H. Epley, Deceased, Florence & Hartzell, Inc., S. Patti Construction Company, and Alliance Mutual Casualty Company, Appellees. S. PATTI CONSTRUCTION COMPANY, Appellant, v. Betty Lou EPLEY, Executrix of the Estate of Harvey H. Epley, Deceased, Florence & Hartzell, Inc., Carstens Plumbing & Heating Company, and Alliance Mutual Casualty Company, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

342 F.2d 830 (1965)

CARSTENS PLUMBING & HEATING COMPANY, Appellant, v. Betty Lou EPLEY, Executrix of the Estate of Harvey H. Epley, Deceased, Florence & Hartzell, Inc., S. Patti Construction Company, and Alliance Mutual Casualty Company, Appellees.

S. PATTI CONSTRUCTION COMPANY, Appellant, v. Betty Lou EPLEY, Executrix of the Estate of Harvey H. Epley, Deceased, Florence & Hartzell, Inc., Carstens Plumbing & Heating Company, and Alliance Mutual Casualty Company, Appellees.

Nos. 17757, 17758.

United States Court of Appeals Eighth Circuit.

March 31, 1965.

David R. Hardy and William W. Shinn, of Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, Mo., made argument for appellant, Carstens Plumbing & Heating Co. and filed brief with Donald K. Hoel and Mari W. Privette, of Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, Mo., and William S. Burnquist, Fort Dodge, Iowa.

Alan Loth, Fort Dodge, Iowa, made argument for appellant and appellee S. Patti Construction Co. and filed brief.

John J. Murray and Donald J. Mitchell, of Mitchell, Mitchell & Murray, Fort Dodge, Iowa, made argument for appellee, Betty Lou Epley, Executrix of the Estate of Harvey H. Epley and filed brief.

Evart Mills, of Mills & Mills, McPherson, Kan., made argument for appellees, Florence & Hartzell and Evart Mills and Michael T. Mills, of Mills & Mills, McPherson, Kan., filed brief for appellees, Florence & Hartzell and Alliance Mut. Cas. Co.

Before VOGEL, MATTHES and RIDGE, Circuit Judges.

VOGEL, Circuit Judge.

These two consolidated actions arise out of the injury and death of an employee during the construction of the federal office building and post office at Fort Dodge, Iowa. For convenience, the various parties will be referred to as they were in the court below. S. Patti Construction Company (hereinafter referred to as Patti) was the general contractor for the construction of the building at which the accident occurred. Carstens Plumbing & Heating Company (hereinafter Carstens) and Florence & Hartzell, Inc. (hereinafter Florence) were among the subcontractors on the project. Harvey H. Epley, the deceased, out of whose injuries and death the various claims arose, was an employee of subcontractor Florence.

In the first instance, plaintiff Betty Lou Epley, a citizen of Kansas and executrix of the estate of her husband, Harvey H. Epley, brought suit for damages for the wrongful death of her husband in the United States District Court for the Northern District of Iowa, Central Division, against Patti, a Missouri corporation. Diversity of citizenship and the amount involved justified federal court jurisdiction.

Alliance Mutual Casualty Company was Florence's insurance carrier, paid workmen's compensation benefits to Mrs. Epley in accordance with the law of Kansas, and claimed subrogation as to any recovery herein up to the amount of its payments. After the original suit by Betty Lou Epley against Patti, Patti in turn sued its subcontractors Carstens and Florence on a third-party complaint. Florence also brought suit against Carstens on behalf of the estate of Harvey H. Epley and their workmen's compensation insurance carrier, Alliance. Patti also sought contractual and common law indemnity against Carstens, one of its subcontractors.

The case was tried to a jury which, in responses to special interrogatories submitted to it, found both Patti and Carstens guilty of negligence which proximately resulted in Epley's death. The jury assessed damages in the sum of $39,000 and judgment in that amount was entered on April 7, 1964, against both Patti and Carstens and in favor of both Betty Lou Epley and Florence. Judgment was also entered on the Patti indemnity claim against Carstens, such issue having been withdrawn from the jury and decided by the court. The court's opinion is published at 228 F.Supp. 1. Third-party defendant Carstens and defendant and third-party plaintiff Patti have perfected these appeals.

On March 24, 1961, the day of the accident, Patti was the general contractor for the construction of the building in question. On that date construction work was completed and the masonry work was virtually completed. Plastering and lathing crews were working in the building, as were the plumbers. Patti had erected a materials hoist on the east side of the building. The hoist was owned by Patti, which considered it an expensive piece of equipment valued at $10,000 to $15,000. The hoist was of open frame construction and was used to raise and lower materials and equipment to the various floors and roof of the building. It was not used as a personnel carrier. The erection of the hoist started in the latter part of July 1960 and its tower or shaft was extended from floor to floor as the building went up. The tower was built of heavy steel tubing and had main tubings that ran vertically at each of the four corners. There were steel "X" bracings between. The platform or cage portion of the hoist was about six feet square with an "I" beam extending up each side and across the top. There were guides on each side of the platform. The flooring of the platform was of plywood or planking. The tower of the hoist was approximately three feet from the east wall of the building. There were openings in the wall at each floor level immediately to the west of the tower. These openings later were made into windows. There was a gangplank or planking at each opening extending from inside the building to the hoistway; this served as a flooring for the three feet between the building and hoistway. It was used by workmen when loading or unloading materials from the hoist platform. There were removable barriers on each floor at each opening to the hoist.

The materials hoist was controlled by a cable attached to the top of the hoist cage or platform extending upward to a pulley at the top of the tower and then running down the side of the hoist tower to a drum unit operated by a General Motors diesel engine and located approximately 40 to 75 feet north of the hoist. The diesel engine, cable drum unit and controls were kept locked within a shack and the key remained in the exclusive possession of the project foreman engineer or superintendent of Patti on the jobsite.

The diesel engine turned the drum unit and as the cable was wound around the drum unit, the hoist cage or platform would be raised and conversely, as the cable was unwound from the drum unit, the hoist platform would be lowered. The hoist platform could be locked in position at a desired floor level by a cog and the diesel engine then switched off. Thereafter, in order to raise or lower the platform, the diesel engine would have to be started and engaged in order to lift the platform slightly to enable the operator to remove the safety cog. The descent was controlled by a mechanical foot-brake. There were safety cogs on the cage of the platform itself; these were designed to catch the guard rails and stop the descent of the platform completely should the platform descend in a "free fall". There was, however, testimony that the hoist had no device that would automatically halt the descent if it exceeded a certain speed. There was a spring-like device that would stop the descent if the cable broke.

The windows on the east side of the building were in place and were key locked. The key was kept in Patti's office at the jobsite. The windows were kept closed to aid in controlling the temperature for the plastering work being done on the second floor.

A plaster mixer apparatus and pump with a two-inch pipe running from the pump motor to the second floor window immediately adjacent to the hoist tower was located on the ground near the base of the hoist tower. Plaster materials were being pumped to the second floor and there used by the plastering crew under the direction of the foreman, Harvey Epley, the deceased.

From the time that the hoist was erected until approximately March 1, 1961, it was operated by Floyd Disbrowe, an employee of Patti. Disbrowe's only duties were to operate the hoist. However, since there was not a great deal of hoisting to be done after March 1, 1961, Disbrowe was called in only if there was a substantial amount of hoisting to be done. On lesser jobs Battenberg operated the hoist. Battenberg was project foreman, engineer or superintendent for Patti at the jobsite.

There were no bells, whistles or other signals used when lowering or raising the hoist platform. There was no telephone communication between the building and the hoist operator's shack. There was no rope or chain tied or dangling below the platform that might give an indication that the platform was being lowered, and there was no evidence that there had ever been. The operator had a clear view of the hoistway from the position of operator in the shack. Persons on the walkway between the building and the hoistway also had a clear view of the operator.

The materials hoist was erected by Patti for its own use as well as for the use of its subcontractors. Patti felt it would have been "incommodious to the operation of the job as a whole if each subcontractor brought in their own hoist and an operator". It was the general practice for the general contractor to furnish the hoist at a construction site.

Generally a charge was made by Patti to the subcontractors for the rental or use of the hoist and the operator. A timekeeper employed by Patti kept a record of the time that the hoist and the operator were being used for subcontractors. The timekeeper would determine the charge to the subcontractor by the time involved and would send the charges to Kansas City, Missouri, for billing. No charges were ever made by Patti to Carstens for use of the hoist and operator on March 24, 1961. There was testimony that there should have been.

On the day of the accident Russell Windler, foreman for Carstens, went to the office of the general contractor Patti to inquire about use of the hoist for their materials. He was...