Bauer v. Plumbers' Supply Corp. of Evansville, 20094

• Citation: 205 N.E.2d 567,137 Ind.App. 106
• Decision Date: 30 March 1965
• Docket Number: No. 20094,No. 2,20094,2
• Parties: Albert A. BAUER, Appellant, v. PLUMBERS' SUPPLY CORP. OF EVANSVILLE, Appellee
• Court: Court of Appeals of Indiana

Page 567

205 N.E.2d 567

137 Ind.App. 106

Albert A. BAUER, Appellant, v. PLUMBERS' SUPPLY CORP. OF EVANSVILLE, Appellee.

No. 20094.

Appellate Court of Indiana, Division No. 2.

March 30, 1965.

[137 INDAPP 106] John D. Clouse, Evansville, for appellant.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellee.

BIERLY, Presiding Justice.

This action was commended by the appellant in the Gibson Circuit Court of Gibson County, Indiana, to recover damages for injuries sustained as a result of a fall while painting a building owned by appellee. At the close of appellant's evidence, the trial court sustained appellee's motion for a directed verdict.

The gravamen of the action was that appellee, a [137 INDAPP 107] corporation authorized to do business in the state of Indiana, requested Deig Brothers Construction Company to paint a building occupied by appellee; that appellant was a painter employed by Deig Brothers Construction Company to paint said building; that appellant's injury was due to the negligence of appellee in failing to remove a stack of pipes from the side of the building, which required the appellant to construct an improvised scaffold in order to reach the other portion of the building. Appellee answered in compliance with Rule 1-3 and in paragraph II. asserted that appellant was employed by Deig Brothers Construction Company, an independent contractor and not by appellee; that appellee at no time attempted to exercise or maintain any control or supervision over the details of the work to be performed; and that at no time did appellee undertake to furnish scaffolding or other equipment to appellant or appellant's employer.

The undisputed evidence reflects that appellee, Plumbers' Supply Corporation, owns and occupies a building located at the intersection of Pennsylvania and Edgar Streets in the city of Evansville, and appellee corporation is managed by one Raymond Trapp and it is not involved in the painting, construction or contracting business.

Appellant, Albert A. Bauer, was an employee of Deig Brothers Construction Company and worked as a journeyman painter. Deig Brothers was principally in the business of general construction, but, also, maintained a painting department.

Sometime in May or June of 1960, Mr. Deig requested one Wilbur Fehrenbacker, a brother-in-law of the appellant and foreman in the painting department of Deig Brothers, to go with him to help figure [137 INDAPP 108] an estimate for painting the building occupied by appellee. Mr. Trapp showed Deig and Fehrenbacker the building to be painted and described the work to be performed. After viewing the building it was determined that a substantial amount of labor would be required because portions of the building would be obstructed and difficult to reach. Along the front of the building there were four or five stacks of heavy soil pipes about six to eight inches from the building. The pipes were four to six inches in diameter and five feet long and stacked four to five feet high. The pipes had a flange on one end and were stacked by laying one row in one direction and the next row in the other direction.

When Deig Brothers commenced work, appellant Bauer was assigned to the job. Appellee furnished all the paint and Deig Brothers furnished all the equipment necessary to complete the job. About one week after appellant started work on the building, Mr. Fehrenbacker returned to the job site to determine the progress of the painting. At this time Fehrenbacker asked Mr. Trapp when he was supposed to move the soil pipes and Mr. Trapp said: 'I was supposed to move them but I don't have a man free to move them, but just get it the best you can.' There was further a conversation as to two or three loading docks across the front of the building which were constantly used by trucks picking up supplies. Mr. Fehrenbacker suggested that maybe they could rope off one part of the loading dock at a time while painting and Mr. Trapp replied that it would be all right to rope off a part at a time or any other way that would provide a safe place from which to paint.

Appellant testified that he didn't talk to Mr. Trapp about the area above the pipes, but Fehrenbacker told [137 INDAPP 109] him to get it the best he could as they weren't going to move the pipes; that the next day appellant requested the yardman, an employee of Deig Brothers, to bring a piece of plywood to lay upon the pipes in order to provide a foundation for his ladder; that appellant placed the plywood upon the pipes and his ladder on the plywood, and had climbed all the way up the ladder when the pipes shifted; and that when the pipes shifted, appellant fell about twenty-six (26) feet and sustained a broken leg.

Appellant testified further that he received all his instructions concerning the progress of the work from the foreman of Deig Brothers; that neither Trapp nor the foreman, Fehrenbacker, told him to put the plywood on the pipes; that he thought the flange would hold the pipes together and that it was the best setup he had had on the whole job; that it was his decision as to how to make his setups; that as a journeyman painter he didn't have to be told how to make a setup; and that all the equipment, including ladders and scaffolding, was furnished by Deig Brothers.

Appel...