Blount Bros. Const. Co. v. Rose

• Decision Date: 29 November 1962
• Docket Number: 8 Div. 12
• Parties: BLOUNT BROTHERS CONSTRUCTION COMPANY v. Daisy J. ROSE et al.
• Court: Alabama Supreme Court

Page 821

149 So.2d 821

274 Ala. 429

BLOUNT BROTHERS CONSTRUCTION COMPANY v. Daisy J. ROSE et al.

8 Div. 12.

Supreme Court of Alabama.

Nov. 29, 1962.

Rehearing Denied Feb. 7, 1963.

Eyster & Eyster, Decatur, for appellant.

Harris & Harris, Decatur, for appellees.

PER CURIAM.

The appeal in this case arises out of a judgment for the plaintiffs in the sum of $60,000.00, in a suit filed by the widow and minor son of the deceased, William Earl Rose, who at the time of his death was employed by subcontractors of appellant to assist in the installation of plumbing and heating fixtures in a building under construction at Redstone Arsenal in Madison County.

The deceased met his death under circumstances which the plaintiffs claim were the proximate result of wanton conduct on the part of appellant (defendant in the Circuit Court). More details surrounding the death of Mr. Rose, so far as they are pertinent to the assignments of error that are argued by appellant, will later be delineated in this opinion.

Assignment of Error 1.

This assignment charges the trial court with error in overruling appellant's demurrer to Count E of the complaint. All other counts in the complaint were eliminated by the plaintiffs at the close of the evidence. Only those grounds of demurrer adequately argued by appellant in its brief are entitled under the law to be here considered.

The Reporter will set out the complaint.

Appellant, in its brief, directs the attention of this court to twelve grounds of demurrer and omits adequate argument as to other assigned grounds. We will consider only the twelve grounds that have been argued. Linville v. Crittenden, 272 Ala. 630, 133 So.2d 381[4, 5]; Vol. 2A, Ala.Digest, Appeal and Error, k1078(1).

The contention of appellant in its argument is that Count E is deficient because it undertakes to allege facts which at their most constitute simple negligence and are insufficient to support the wanton allegation near the end of the complaint, citing Birmingham Ry., Light & Power Co. v. Brown, 150 Ala. 327, 43 So. 342.

This court, from time to time, using different phraseology, has stated the constituent and essential elements of wanton conduct. Simon v. Goodman, 244 Ala. 422, 13 So.2d 679; Dean v. Adams, 249 Ala. 319, 321, 30 So.2d 903, 904; Griffin Lumber Company v. Harper, 247 Ala. 616, 25 So.2d 505, 506; Atlantic Coast Line R. Co. v. Brackin, 248 Ala. 459, 28 So.2d 193, 194; Wilhite v. Webb, 253 Ala. 606, 46 So.2d 414. We quote briefly from Griffin Lumber Company v. Harper, supra, as follows:

'Wantonness is the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Before a party can be said to be guilty of wanton conduct it must be shown that with reckless indifference to the consequences he consciously and intentionally did some wrongful act or omitted some known duty which produced the injury. (Citations omitted.)' (247 Ala. at page 618, 25 So.2d at page 506.)

The complaint alleges: (1) that the defendant owed Rose a duty; (2) that the defendant breached this duty; (3) that defendant knew and was conscious that a breach of this duty would likely cause serious injury or death to Rose or his coworkers; and that (4) notwithstanding said knowledge, and as a result of defendant's wantonness in allowing such unsafe conditions to remain uncorrected Rose fell and was killed as a proximate result of such wantonness.

The argued grounds of demurrer fail to point out or particularize wherein the complaint fails to aver the constituent or essential elements of wantonness. If the complaint is subject to demurrer on the ground that it undertakes to allege the quo modo, but is insufficient in that respect because it does not allege the defendant, its agents or servants, notwithstanding their knowledge of conditions, consciously and intentionally, with reckless indifference to the consequences, failed to correct the alleged unsafe conditions, we have to observe that no such ground was assigned in the several grounds which defendant argues on this appeal. In the absence of this assignment, we cannot consider this omission if it existed. Buffalo Rock Co. v. Davis, 228 Ala. 603, 154 So. 556(8). The complaint is not subject to demurrer on any of the grounds assigned and argued in this appeal. Linville v. Crittenden, supra.

Assignment of Error 10.

This assignment charges the trial court with error in refusing defendant's written charge, which, according to its text, is affirmative in purpose with hypothesis. Delineation of some of the evidence at this point is appropriate.

Appellant entered into a written contract with the United States Government to construct a shop building (No. 3) at Redstone Arsenal in Huntsville. The building as constructed is 300 or 315 feet long, north and south, and 60 or 65 feet wide. The contract included painting, and electrical, plumbing and heating installations.

Appellant subcontracted the electrical work to T. D. Little Electric Company, the plumbing and heating installations to Nichols Plumbing and Heating Company, and the painting to someone else. Mr. Rose, at the time of his death, was an employee of Nichols and was the foreman of the crew engaged in installing the heaters.

The heaters were being attached to the roof of the building with suspension rods that lowered them to about 30 feet above the concrete floor of the building. The particular heater, weighing 800 to 1000 pounds, which Mr. Rose and his coworkers were installing, was right close to the east end of the building.

The heaters were lifted from the floor to the point of suspension by a winch on a truck and they first came to rest on a scaffold that was supported by an interior crane within the building. The crane was a permanent adjunct to the building.

The crane consisted of two steel girders or eye-beams extending east and west from one wall to the other. On the surface of these girders or beams was a slightly elevated track for the operation of the hoist east and west. This hoist was not being used at the time. On each side of the tracks was a flange approximately eight inches wide. These beams were separated approximately four to four and one-half feet.

A steel beam or girder, with a track on top, was permanently anchored to the west wall of the building, the same height as the beams extending east and west. A like beam was also anchored to the east wall at the same height. The east and west beams had wheels at their respective ends that operated on these north and south tracks. Thus the crane could be moved north and south from one end of the building to the other, while the hoist on the crane could be moved east and west from one wall to the other.

On the south side of the crane was a catwalk running east and west the entire length of the crane. There was no catwalk on the north or opposite side of the crane. Running the entire length of the catwalk was a shaft or rod that could be operated by a motor attached thereto or manually with a wrench to move the crane north and south, thus making the crane available for use anywhere in the building.

Appellant was importuned by the painting, electrical, and plumbing subcontractors to erect a scaffold on the crane for use of the men working for the subcontractors. Responding to this request, appellant directed its carpenters to build the scaffold which they did.

The scaffold was about four feet high above the eye-beams that ran east and west and rested thereon. Substantial uprights were used. An upright rested on the inside flange of one beam, and another on the opposite side on the other beam. They were spread in sections about 10 feet apart for the entire length of the beams. Each section was braced on the east side as well as on the north and south sides. The thickness of the braces was three-fourths of an inch and some one inch. The braces on the north and south sides were firmly nailed to the top and bottom of the posts in an 'X' pattern. The braces on the east side of the uprights were firm and secure. Firmly anchored to the top of the vertical posts or uprights was a horizontal member the same dimensions as the uprights. The scaffold was sturdy.

On top of the horizontal supports were some pick boards or platforms. Appellant did not own them or put them into place. These boards served as a flooring and could be moved from one point to the other on the scaffold. They were long enough to more than cover one section of the scaffold. Each pick board (three or four in number) resembled a ladder with narrow boards nailed to the horizontal steps of the ladder. There were some cracks between some of the planks on the pick boards which, as we understand from the evidence, were covered with plyboard. The pick boards were placed on the scaffold in such a manner that the south edge was practically flush with the south side of the scaffold, while on the north side the board was not flush with the edge. There was a factual dispute between plaintiffs' evidence and defendant's witnesses, or some of them, as to the distance that the board lacked being flush with the north side of the scaffold. The defendant contended that the space was 24 inches, while plaintiffs contended the space was considerably less.

A further tendency of plaintiffs' evidence was that the end of the scaffold was practically up against the east wall, with the end of the pick boards protruding beyond the east horizontal member upon which they rested. There was agreement that the model crane used by both parties before the jury did not accurately reflect the distance the end of the crane was from the east wall nor the exact position of the uprights from the end of the crane.

The evidence of the parties was in conflict as to whether or not the pick boards were fastened to the horizontal members upon which they rested.

Plaintiffs' evidence...