Billings v. Dugger
| Citation | 362 S.W.2d 49,50 Tenn.App. 403 |
| Parties | James W. BILLINGS v. A. A. DUGGER. |
| Decision Date | 02 March 1962 |
| Court | Court of Appeals of Tennessee |
James H. Bateman, R. B. Parker, Jr., Nashville, for plaintiff in error.
Elmer D. Davies, Jr., Nashville, for defendant in error.
James W. Billings sued A. A. Dugger for $50,000. damages for personal injuries sustained when he, the plaintiff, stepped upon a platform, or porch, which collapsed causing him to fall approximately 8 feet into the basement of a house which was being constructed by the defendant.
Plaintiff's declaration charges that the defendant was guilty of common law negligence in maintaining this dangerous condition and in failing to provide warnings or barricades to prevent persons from using said porch floor.
The plea of the defendant was that he was not guilty of negligence and that, at the time in question, he was operating under the provisions of the Tennessee Workmen's Compensation Act and that plaintiff was an employee of a sub-contractor, hence, plaintiff's rights, if any, were governed exclusively by the terms of said Workmen's Compensation Act.
The case was tried before the Honorable Byrd Douglas, Judge of the Second Circuit Court, of Davidson County, Tennessee and a jury, in August 1961 and resulted in the Court's sustaining a motion for a directed verdict in favor of the defendant. A motion for a new trial was seasonably filed and overruled and an appeal granted to this Court and assignments filed.
As counsel for the appellant state in their brief, the sole question presented by this appeal is whether or not under the facts the defendant is immune, as a matter of law, to action at common law for negligence because of Section 15, of the Workmen's Compensation Act, T.C.A. § 50-915. If defendant is a principal contractor within the meaning of this section then he is immune, otherwise he is not.
It is the contention of plaintiff that the record does not support a finding that he is such contractor as a matter of law.
Counsel for defendant states the question this way: 'The determinative question in this case is whether the Workmen's Compensation Act covers the relationship between the plaintiff and the defendant in this case, thus precluding an action at common law.'
Counsel for appellant summarize the testimony of plaintiff and several witnesses substantially as follows:
The plaintiff testified that on July 9, 1959, he was injured on defendant's property, specifically Lot No. 16 in Orchard Hills Subdivision, and that he was on that date employed by Warren Brothers Company, a firm of furnishers of glass and woodwork to builders; that he and his supervisor, Mr. Grady Osborne, had gone upon defendant's property to deliver and install a mirror in defendant's house; that the steps in the front stoop were unfinished but that forms had been erected for the pouring of concrete; that there were no warnings or barricades to indicate that the porch was in an unsafe condition but that the platform on the top of the porch appeared to be solid and substantial; that Mr. Osborne walked across the platform and entered the house; and that when the plaintiff stepped upon the platform it collapsed and he fell approximately eight (8) feet to the basement floor, then and there sustaining the injuries complained of.
Upon cross-examination, the plaintiff testified that he had previously delivered mirrors, sash, and other materials to several houses, including the house where he was injured, all of which were being cnstructed by the defendant in the same subdivision. He further was allowed to testify over the objections of counsel, that Warren Brothers Company was covered by the Workmen's Compensation Act, and that he had drawn benefits under the employer's coverage for the injuries complained of.
Mr. Grady Osborne testified that he was the plaintiff's supervisor, that he had accompanied plaintiff to the house for the purpose of installing the mirror; and generally corroborated plaintiff's testimony.
On cross-examination, Mr. Osborne testified that he had delivered a good many items to the defendant in the houses in this particular subdivision, including doors, window frames, inside woodwork, and other materials. Over plaintiff's objection, he was allowed to state that he knew Mr. Dugger, the defendant, to be a general contractor.
Howard D. Farmer, Jr., testified that he had purchased from the defendants, A. A. Dugger, the house and lot described as Lot No. 16 in the Orchard Hills Subdivision on September 8, 1959; that he first met Mr. Dugger to arrange the purchase of the house four or five days prior to September 8, 1959; and that he had no contract of any kind with the defendant at the time the house was being built.
On cross-examination, Loyd Hunter stated that he had been defendant's foreman approximately three years prior to the date of the accident; that the defendant had been in the business of building homes for sale; and that he had participated in building about fourteen (14) houses in Orchard Hills Subdivision.
He further testified that Warren Brothers Company were furnishing all the window frames, door frames, etc., for the houses in Orchard Hills Subdivision; that in building houses for sale the defendant would make contracts with such workmen as concrete finishers, electricians, painters, etc., and that those individuals would have their own employees do the work.
James Linebaugh testified that he was an attorney employed by the American Insurance Company, which company carried the Workmen's Compensation insurance for the Warren Brothers Company, and that the company had paid certain benefits to and on behalf of the plaintiff on account of the accident herein complained of. He stated that the American Insurance Company expected to be reimbursed for these payments in the event of a recovery by the plaintiff.
Defendant, A. A. Dugger, testified that his occupation was that of 'Builder' which occupation he had followed for about eight years on his own behalf and that prior to that time he was a carpenter. He stated that his plan of operation was to build and sell houses to purchasers using F.H.A. and G.I. loans. It was his practice to let out by contract the concrete work, block work, brick work, plumbing, roofing, etc., but he did the wood work himself with the aid of men he hired.
He testified that he was qualified and carried insurance under the Workmen's Compensation Act of Tennessee which fact was corroborated by the testimony of Mrs. Mildred Johnson, Assistant Director of the Workmen's Compensation Division of the State.
He testified that the house where the injury occurred was under construction at the time of the accident. This house was in the Orchard Hills Subdivision located near Bordeaux in Davidson County and that the subdivision was made and developed on land which the defendant Dugger had bought, and that he built some twenty-one houses for sale in this subdivision, including the house on lot 16, which is the one in question here. He stated that he and his employees were doing the carpenter work on this house and that other parts of the work were let out to subcontractors, which included the construction of the porch where the accident happened.
He testified that he bought materials from Warren Brothers for the Orchard Hills houses including windows, doors, trim,...
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