Ballard & Ballard Co. v. Lee's Adm'r

• Decision Date: 19 January 1909
• Citation: 115 S.W. 732,131 Ky. 412
• Parties: BALLARD & BALLARD CO. v. LEE'S ADM'R.
• Court: Kentucky Court of Appeals

115 S.W. 732

131 Ky. 412

BALLARD & BALLARD CO. v. LEE'S ADM'R.

Court of Appeals of Kentucky.

January 19, 1909

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

"To be officially reported."

Action by Henry Lee's administrator against the Ballard &amp Ballard Company. From a judgment for plaintiff, defendant appealed. Reversed, and new trial ordered.

Fairleigh Straus & Fairleigh, for appellant.

Caruth, Chatterson & Blitz, for appellee.

CARROLL J.

Ballard & Ballard Company owned and operated a flouring mill in the city of Louisville. The company wished to enlarge one of its buildings, and to do this it became necessary to remove the roof, and do other work about the building. They employed Henry Wolters, an architect, to make the plans and specifications for the improvement, and also authorized him to employ a contractor to do the required work. Wolters engaged a contractor named Leatherman, who was largely engaged in the business of wrecking buildings and excavating foundations. Under the arrangement with Wolters Leatherman was to be paid for his services, while engaged in the work, $3 per day, and the men that he employed were to receive $1.50 per day. The selection and number of laborers to be engaged was left to Leatherman. At the end of each week, or when pay day came, Leatherman presented to Ballard & Ballard Company a statement showing the number of hands he employed and the days they worked, and received from the company a check for the amount due the laborers, as well as the sum due himself, and Leatherman then paid his employés the wages coming to each of them. Work was commenced in removing the roof from one of the high buildings, and, after it had progressed for some days, the decedent, Henry Lee, who had worked for several years as a laborer for Leatherman in tearing down buildings and excavating, took his place with the hands on the roof of the building to assist in removing it. The roof was covered with tar paper, laid on board sheeting, which was placed on a foundation of cinder concrete, the concrete resting upon sheet iron that was fastened to the bottom of the girders or rafters that supported the roof. The cinder concrete was not strong enough to support the weight of a person standing on it, although there is some evidence that it presented the appearance of being regular concrete and of sufficient strength to support a person. The laborers who had been employed before the arrival of Lee had placed some planks on the top of the girders, and on these planks they generally stood while taking off the paper roofing and sheeting, but sometimes they secured themselves by placing their feet upon the girders, and it is generally agreed that the work was dangerous. On the day of the accident the employés who had been engaged on the roof were ordered to another part of the building, and they removed from the roof the planks they had been using. After they left the roof Lee and a colaborer named Norris were directed to remove the roofing, and while engaged in this work Lee stepped or stood on the concrete and fell through the roof to the ground, a distance of some 35 feet, receiving injuries from which he soon afterwards died. At the place through which he fell the iron that supported the concrete had decayed, and this was discovered by some of the other laborers a few days before, while they were on the ground floor looking up at the roof. On the top of the roof the sheeting in some places was rotten and the roof defective and unsafe, and this fact was discovered by the laborers engaged in taking off the roof before Lee went on the roof. The theory of appellant is, first, that Leatherman was an independent contractor, and the laborers he employed, including Lee, were his employés; second, assuming that Leatherman was not an independent contractor, and that they were employés of Ballard & Ballard Company, yet Lee, as well as the other laborers, had had long experience in the work of wrecking buildings, and that the work was in itself hazardous, and the person who engaged in it assumed the risk incident to this perilous employment; third, that there was no evidence bringing home to Ballard & Ballard Company knowledge of the defective condition of the roof, nor was it in such condition as to put them upon notice. The theory of appellee is that, aside from the question whether Leatherman was or not an independent contractor, Lee was upon the roof with the knowledge and consent of Ballard & Ballard Company, engaged in a service for them, and hence it was their duty to notify him of any defect in the roof known to them, or which could have been known to them by the exercise of ordinary care on their part, and which was not known to Lee, and could not have been discovered by him in the exercise of ordinary care. The trial court took appellee's view of the case, and instructed the jury, in substance, that if they believed from the evidence that the portion of the roof through which the deceased fell was decayed to a degree that made it dangerous to the decedent while performing the work required of him, and that such decayed condition was known to Ballard & Ballard Company, or could have been known to them by the exercise of ordinary care, and its condition was not known by the deceased, and could not have been known by him in the exercise of ordinary care, they should find for the plaintiff. Under the evidence and the instructions the jury returned a verdict in favor of appellee for $2,500.

One of the principal questions to be determined is whether or not Leatherman was an independent contractor. If it should be ruled from the evidence as a matter of law that he was an independent contractor, Ballard & Ballard Company are not liable in damages for the death of his employé Lee; or, if this question under the facts is in dispute, then it should have been submitted to the jury. Looking a little more carefully into the evidence for the appellee upon this point, we find that an employé of Ballard & Ballard Company named Playford was their superintendent of the work, and was frequently about where it was going on, and at times, in the absence of Leatherman, would not only tell the laborers what to do, but how to do it, directing them as to the manner of doing the work right, and correcting them when wrong. In short, that he exercised all the functions of an employer in controlling and directing the details of the work, keeping an account of the wages due Leatherman as well as the laborers, and looking after its payment, and also exercised a general superintendency over Leatherman. On the other hand, the evidence for Ballard & Ballard Company was to the effect that the architect, Wolters, had general charge and superintendency of the work, and employed Leatherman as a contractor to do it. That neither they, nor Playford, had anything to do with the employment or discharge of the men, nor did they give any directions how to do the work, or exercise any control over, or have anything to do with, the laborers, except to see that the work was done right; but, in the absence of the architect, Playford would tell Leatherman what work was to be done. If...