O'LEARY v. James & Wunderlich

• Decision Date: 22 January 1960
• Docket Number: Civ. No. 2006,2007.
• Citation: 192 F. Supp. 462
• Parties: Louise J. O'LEARY, James Michael O'Leary, Robert Louis O'Leary, and Richard Douglas O'Leary, Minors, by their Guardian ad Litem Louise J. O'Leary, Plaintiffs, v. JAMES & WUNDERLICH, a joint adventure, Guy H. James Construction Company, a corporation, and Wunderlich Contracting Company, a corporation, Defendants. Louise J. O'LEARY, Executrix of the Estate of Michael D. O'Leary, Deceased, Plaintiff, v. JAMES & WUNDERLICH, a joint adventure, Guy H. James Construction Company, a corporation, and Wunderlich Contracting Company, a corporation, Defendants.
• Court: U.S. District Court — District of Montana

192 F. Supp. 462

Louise J. O'LEARY, James Michael O'Leary, Robert Louis O'Leary, and Richard Douglas O'Leary, Minors, by their Guardian ad Litem Louise J. O'Leary, Plaintiffs, v. JAMES & WUNDERLICH, a joint adventure, Guy H. James Construction Company, a corporation, and Wunderlich Contracting Company, a corporation, Defendants.

Louise J. O'LEARY, Executrix of the Estate of Michael D. O'Leary, Deceased, Plaintiff, v. JAMES & WUNDERLICH, a joint adventure, Guy H. James Construction Company, a corporation, and Wunderlich Contracting Company, a corporation, Defendants.

Civ. Nos. 2006, 2007.

United States District Court D. Montana, Havre-Glasgow Division.

January 22, 1960.

Franklin S. Longan, Calvin A. Calton and Franklin A. Lamb, Billings, Mont., for plaintiffs.

Hoffman & Cure, Great Falls, Mont., for defendants.

JAMESON, District Judge.

The defendants Guy H. James Construction Company and Wunderlich Contracting Company have moved the court, pursuant to Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., for judgment in accordance with their motion for a directed verdict at the close of all the evidence. The case was tried before a jury, but no verdict was returned. Counsel for the respective parties have filed briefs, and oral argument was presented to the court on December 9, 1959.

Cause No. 2006 is prosecuted by Louise J. O'Leary, as widow and guardian of the minor children of Michael D. O'Leary, deceased, and Cause No. 2007 is prosecuted by Louise J. O'Leary as the executrix of his estate. Both actions were instituted against James & Wunderlich, a joint adventure, Guy H. James Construction Company, and Wunderlich Contracting Company. At the close of plaintiffs' case a motion to dismiss as to James & Wunderlich, a joint adventure, was granted, for the reason that James & Wunderlich had been dissolved and the assets distributed to the other defendants prior to the institution of these actions.

It is alleged in both complaints that Michael D. O'Leary died on December 3, 1955, as the result of the inhalation and absorption of noxious fumes of a poisonous character from vinyl resin paint containing benzene and benzol derivatives furnished by the defendants to Michael D. O'Leary for use in spray painting the steel structured portion of a dam under construction by the defendants. It is alleged further that the paint was sprayed and applied under the direction and control of the defendants; that the defendants knew or, in the exercise of ordinary care, should have known that the paint was dangerous and deadly to human beings when sprayed and applied in the manner directed; that the areas in which O'Leary was directed to spray the paint by the defendants were narrow and confined spaces with inadequate ventilation; that O'Leary wore protective clothing and protective masks which defendants furnished to him for safety reasons; that defendants knew or, in the exercise of ordinary care, should have known that the protective masks and clothing so furnished were inadequate; and that the defendants were "negligent in furnishing the said paint and protective clothing and masks" in the place and manner and under the conditions alleged in the complaints. Defendants deny all allegations of negligence and deny that O'Leary died as the result of the inhalation and absorption of any noxious fumes of a poisonous character from paint furnished to O'Leary by defendants. They allege as a separate defense that O'Leary was guilty of contributory negligence and assumed the risks incident to the painting in question.

James & Wunderlich was the general contractor for the construction of Tiber Dam, pursuant to a written contract with the United States, through the Bureau of Reclamation. James & Wunderlich entered into a subcontract with Hakes Erection Company for the installation of the radial gates on the spillway. In turn, Hakes Erection Company entered into a written contract with Michael D. O'Leary for the painting of the gates.

It is agreed that Hakes was an independent contractor. The complaints allege that O'Leary was an employee of Hakes. This was admitted by the defendants in their answer, although they also allege as separate defenses (1) that O'Leary was an independent contractor of Hakes Erection Company pursuant to a written contract and that defendants had no supervision or control over O'Leary's work except as to the final results; and (2) that if O'Leary were not an independent contractor, he was an employee of Hakes and in the position of a statutory employee of the defendants, and that these actions accordingly are barred under the Workmen's Compensation Act of Montana, R.C.M.1947, § 92-101 et seq. For a portion of the time O'Leary was performing the painting work he was carried on the payroll of Hakes Erection Company, and for a portion of the time on the payroll of James & Wunderlich, as an accommodation to Hakes Erection Company. O'Leary was found by the Industrial Accident Board of the State of Montana to be an employee of Hakes Erection Company at the time of the alleged injury, and an award was made to his widow and family as the result of his death.

While plaintiffs allege that "all work which he (O'Leary) performed was under the direct control and supervision of the said James & Wunderlich", the evidence failed to establish this allegation. If the work had been performed under the direct control and supervision of the defendants, it would be necessary to consider defendants' contention that O'Leary was a statutory employee of the defendants. Plaintiffs do not contend in their brief on this motion that the defendants exercised control or supervision over O'Leary's work, but rather that "proof shows negligent failure to exercise any supervision or control."

Plaintiffs' contentions are set forth concisely in their brief as follows:

1. Where a prime contractor in control of premises lets out work to a subcontractor, the subcontractor's employee is an "invited person" or "business guest", and the prime contractor is liable for any lack of reasonable care to ascertain the methods and manner in which the concessionaire or independent contractor carries on his activities, not only at the time that concession is let or the contractor is employed, but also during the entire period in which concessionaire or contractor carries on his activities.

2. Where a prime contractor assumes by contract the duty toward third parties with respect to dangerous or hazardous work, the prime contractor is bound by that standard of care and cannot delegate that duty to independent contractors and is liable to third parties for injuries caused by the failure of the prime contractor to observe that duty.

A determination of defendants' motion will depend largely upon the relationship of O'Leary to the defendants and Hakes Erection Company, and the respective duties and obligations of the parties under that relationship.

The prime contract between the Bureau of Reclamation and James & Wunderlich provides in part:

"Article 1. The contractor shall * * * perform the work for construction and completion of Tiber Dam * * * in strict accordance with the specifications, schedules, drawings, all of which are made a part hereof and designated as follows: Specifications No. 3128. * * *."

"Article 8. Superintendence by contractor.—The contractor shall give his personal superintendence to the work or have a competent foreman or superintendent, satisfactory to the contracting officer, on the work at all times during progress, with authority to act for him."

Paragraph 13, of Specifications No. 3128 provides as follows:

"13. Accident prevention. The contractor shall, at all times, exercise reasonable precautions for the safety of employees in the performance of this contract, and shall comply with all applicable provisions of Federal, State, and municipal safety laws and building and construction codes. The contractor shall also comply with the provisions of the Safety Handbook of the Bureau of Reclamation (Volume XII of the Bureau Manual) as approved by the Commissioner and in effect on the date of award of contract, so far as applicable, as determined by the contracting officer and unless such instructions are incompatible with Federal, State, or municipal laws or regulations. Monthly reports of all lost-time accidents shall be promptly submitted giving such data as may be prescribed by the contracting officer. Nothing in this paragraph shall be construed to permit the enforcement of any laws, codes, or regulations herein specified by any except the contracting officer."

The Bureau of Reclamation's Safety Handbook, Part II, Personal Safety, Chapter 2.1, Protective Devices, paragraph .3 provides: "The use of personal protective equipment on Bureau operations as an aid in the prevention of occupational injuries is an important requirement. In the choice of such equipment, the factors to be considered are the comfort of the users, degree of protection afforded, availability of the equipment and cost. Personal protective equipment consisting of goggles, face shields, hard hats, respirators, sandblasting hoods, dust masks, gas masks, safety belts, and life preserver vests, where its use is indicated by the requirements of this hand book, shall be provided by the Bureau, maintained, and its use enforced. On contract work, the contractor shall likewise furnish, maintain, and enforce the use of the above personal protective devices as occasioned by the type of work being performed."

The Handbook contains the following provision with regard to spray painting: "B. Spray-painting operations should be so confined as not to contaminate the air where other men are working. Spray gun operators should be required to wear clothing which fits snugly at the ankles, neck and wrists, and shall wear gloves, goggles, and respirators."¹

The sub-contract between James & Wunderlich and Hakes Erection Company for the installation of the radial...