Abbott v. Onopiuk

• Decision Date: 20 March 1970
• Citation: 437 Pa. 412,263 A.2d 881
• Parties: Charles F. ABBOTT v. Metty ONOPIUK, trading and doing business as Keystone Masonry Construction Company, Steel City Piping Company, a Pennsylvania corporation, and Samuel Jamrom and John T. Keegan, trading and doing business as Jamrom-Keegan Associates, Original Defendants and Larson Construction Company, Additional Defendant. Appeal of STEEL CITY PIPING COMPANY, a Pennsylvania Corporation.
• Court: Pennsylvania Supreme Court

Page 881

263 A.2d 881

437 Pa. 412

Charles F. ABBOTT v. Metty ONOPIUK, trading and doing business as Keystone

Masonry Construction Company, Steel City Piping Company, a

Pennsylvania corporation, and Samuel Jamrom and John T.

Keegan, trading and doing business as Jamrom-Keegan

Associates, Original Defendants

and

Larson Construction Company, Additional Defendant.

Appeal of STEEL CITY PIPING COMPANY, a Pennsylvania Corporation.

Supreme Court of Pennsylvania.

March 20, 1970.

Rehearing Denied April 29, 1970.

Stephen D. Marriner, McCreight, Marriner & McCreight, Washington, for appellant.

Francis H. Patrono, Patrono, Ceisler & Edwards, Samuel L. Rodgers, Rodgers & Roney, Washington, George Raynovich, Jr., Stone & Raynovich, Pittsburgh, for appellee.

Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.

OPINION

JONES, Justice.

On July 29, 1963, Charles Abbott was employed by Larson Construction Company (Larson) at the construction site of the Donaldson Crossroads Shopping Center. Larson was the general contractor for the project, and had subcontracted the masonry work (bricklaying and building of walls) to Keystone Masonry Construction Company (Keystone), and the plumbing work to Steel City Piping Company (Steel City). On the date in question, a theater building was being constructed and Abbott, standing on the roof joists, was unhooking bundles of roofing as a crane lowered them onto the joists. While he was doing this, according to Abbott's testimony, something went wrong and 'I felt everything going out from under me. I turned, jumped, grabbed the top of the wall with my hands, held on as long as I could until the bricks come (sic) down. Then I landed in the debris.' In short, Something caused the joists, upon which Abbott was standing, to fall.

Abbott instituted a suit in trespass in the Court of Common Pleas of Washington County against the two contractors, Keystone and Steel City, and also against the project's architect, Jamrom-Keegan Associates. Larson was joined as an additional defendant. Of vital importance at the trial was the determination, if possible, of what factor or combination of factors caused the joists to fall. A jury verdict of $175,935.05 was returned in favor of Abbott against all the defendants except the architect. Motions for judgment n.o.v. and for a new trial were dismissed by the the court, en banc, ¹ and judgment entered on the verdict. Only Steel City has appealed from that judgment, seeking a new trial.

'In passing upon the propriety of the refusal of a new trial, our inquiry is whether the court below abused its discretion or committed an error of law which controlled the outcome of the case: (citing cases). Unlike the appellate review of a refusal to take off a compulsory nonsuit (or a refusal to enter a judgment n.o.v.) where the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict-winner, ordinarily in reviewing the refusal to grant a new trial we view all the evidence: (citing cases).' Noel v. Puckett, 427 Pa. 328, 332, 235 A.2d 380, 382--383 (1967). See Austin v. Ridge, 435 Pa. 1, 6, 255 A.2d 123, 125 (1969); Bohner v. Eastern Express, Inc., 405 Pa. 463, 471--472, 175 A.2d 864, 869 (1961); Sherman v. Manufacturers Light and Heat Co., 389 Pa. 61, 68 n., 132 A.2d 255, 259 n. 2 (1957).

Abbott's theory of liability against Steel City was that this defendant, in violation of the project's plans and specifications, had wrongfully cut a pipe chase in the wall near the point where the wall collapsed, that this had weakened the wall and that it was, at least, a contributing factor to the accident. ² An obviously vital question in the case against Steel City was whether the pipe chase had been Cut out of the wall by Steel City or built directly into the wall by Keystone's masonry workers. Abbott and Steel City presented directly conflicting eyewitness testimony on the point, but that question was decided by the jury against Steel City and need not trouble us now. The following point for charge was read to the jury at the request of Steel City: 'If you find that the Steel City Piping Company did not cut any chase in the interior wall of the theater then your verdict must be in favor of the plumbing contractor.' Since a verdict was returned against Steel City, the jury, obviously, must have found that the pipe chase was Cut in the wall by the plumbers.

The first contention of Steel City is that the trial court's charge to the jury was inadequate because it only included a broad, general charge on the doctrine of negligence. Specifically, Steel City claims that the jury should have been charged as to the varying legal duties of a contractor, a subcontractor, an independent contractor, and an architect. Insofar as it related to Steel City, the lower court charged, in brief outline, as follows: in order for the plaintiff to recover, one or more of the defendants must have been negligent; negligence is the failure to exercise reasonable care under the circumstances; a person may be liable for the negligent acts of his servants or agents if done within the scope of their employ; if the act is negligent, it must also be a proximate cause of plaintiff's injury; even if there is a negligent act which proximately caused the injury, defendant may still avoid liability if the plaintiff was contributorily negligent to any extent; two or more defendants may be jointly and severally liable; the allegedly negligent act which was supposedly done by Steel City was the cutting of a pipe chase near the accident, thus weakening the wall; and, Steel City cannot be found liable if they did not, in fact, cut the aforesaid pipe chase in the wall.

When read as a whole, the charge to the jury appears to be quite clear factually, and to be legally adequate. See Steinberg v. Sheridan, 416 Pa. 261, 205 A.2d 870 (1965). If a case involves multiple defendants including general and subcontractors, a charge which does not clearly establish which acts each defendant may be held responsible for may be inadequate. Pascarella v. Kelley, 378 Pa. 18, 105 A.2d 70 (1954). However, in the instant case, the charge left no room for the jury to possibly impute the acts of another to Steel City, as was the problem in Pascarella. In fact, the trial judge was so clear on this point that the verdict against Steel City was virtually a special finding that Steel City's workers had cut the pipe chase into the wall, and that they were negligent in so doing.

The matter of whether cutting the pipe chase was a negligent act raises another aspect to appellant's complaint with respect to the charge, I.e., that the judge should have told the jury to return a verdict for Steel City if it were found that Steel City had followed the architect's plans and specifications. However, the uncontradicted testimony of the architect was to the effect that: the plans and specifications did not provide for Any pipe chases to be cut; if one Did have to be cut, then the plumbing subcontractor was Required to first obtain the written consent of the architect; and, no such consent, written or otherwise, was ever given by the architect, nor had such consent ever been requested. ³ In view of the above testimony, the trial court's instruction that Steel City could not be found liable unless it had cut out the pipe chase was equivalent to a direction to the jury to return a verdict for the plumbing subcontractor if it were found to have followed the project's specifications--precisely what Steel City had requested. The question which was left to the jury was whether a reasonable and prudent subcontractor, working under these plans and specifications, and under the conditions in which the defendants found themselves, would have cut out the pipe chases in violation of good practices and in violation of the plans and specifications.

We are convinced that the trial court's charge to the jury, when read in its entirety, clearly and correctly delineated the issues which were to be left to the jury, with repect to Steel City's liability. See Vaughn v. Philadelphia Transp. Co., 417 Pa. 464, 209 A.2d 279 (1965); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963); James v. Ferguson, 401 Pa. 92, 162 A.2d 690 (1960).

The second issue raised by the appellant is whether the trial judge wrongfully excluded testimony, based on post-accident inspection, that the wall showed no indication of a pipe chase having been cut. The fact which was at issue in this case was whether a pipe chase had been cut in the wall as of July 29, 1963, the date of the accident. Testimony which was based upon a subsequent inspection of the premises would generally be irrelevant and, therefore, inadmissible unless other evidence could establish that no change had occurred between the date of the accident and the date of the inspection. Semet v. Andorra Nurseries, Inc., 421 Pa. 484, 219 A.2d 357 (1966); Murray v. Siegal, 413 Pa. 23, 195 A.2d 790 (1963); Henry, Pennsylvania Evidence § 33 (4th ed.). Moreover,...