Blumhardt v. Hartung, 12488

• Decision Date: 31 October 1979
• Docket Number: No. 12488,12488
• Citation: 283 N.W.2d 229
• Parties: Reinhold BLUMHARDT and Alice Blumhardt, Plaintiffs and Appellants, v. P. A. HARTUNG, I. F. Hartung, Leonard Mayer, Hartung Construction Company, a corporation, and South Dakota Wheat Growers Association, a cooperative, Defendants and Respondents, Roy Kelsey, Martin Robinson, George Thiel, and Loren Igo, Defendants.
• Court: South Dakota Supreme Court

Page 229

283 N.W.2d 229

Reinhold BLUMHARDT and Alice Blumhardt, Plaintiffs and Appellants, v. P. A. HARTUNG, I. F. Hartung, Leonard Mayer, Hartung Construction Company, a corporation, and South Dakota Wheat Growers Association, a cooperative, Defendants and Respondents Roy Kelsey, Martin Robinson, George Thiel, and Loren Igo, Defendants.

No. 12488.

Supreme Court of South Dakota.

Argued April 24, 1979.

Decided Sept. 5, 1979.

Rehearing Denied Oct. 31, 1979.

Richard H. Battey of Gallagher & Battey, Redfield, for defendant and respondent, Leonard Mayer.

Chester A. Groseclose, Jr. of Richardson, Groseclose, Kornmann & Wyly, Aberdeen, for defendant and respondent, South Dakota Wheat Growers Association, a cooperative.

Harvey C. Jewett of Siegel, Barnett, Schutz, O'Keefe, Jewett & King, Aberdeen, for plaintiffs and appellants.

Daniel R. Fritz of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for defendants and respondents, P. A. Hartung and I. F. Hartung, Hartung Const. Co., a corporation.

FOSHEIM, Justice.

The plaintiff, Reinhold Blumhardt, seeks damages for injuries he sustained while working at the construction site of a grain elevator in Tulare, South Dakota. His wife, Alice Blumhardt, alleges loss of consortium resulting from these injuries. Worker's compensation benefits have been received. This action was for recovery against persons other than the employer under the South Dakota Worker's Compensation Law. ¹ Defendants P. A. Hartung, Roy Kelsey and I. F. Hartung were officers of defendant Hartung Construction Company and defendant Leonard Mayer was the company foreman on the Tulare project. Martin Robinson, George Thiel, and Loren Igo became defendants by virtue of their employment with the defendant South Dakota Wheat Growers Association, the owner of the elevator. Defendants Robinson, Thiel, Igo, Kelsey, and Hartung Construction Company were voluntarily dismissed from the suit. The trial court granted motions for summary judgment dismissing all claims against the remaining defendants, P. A. Hartung, I. F. Hartung (Hartung), Leonard Mayer (Mayer), and South Dakota Wheat Growers Association (Wheat Growers). This appeal is from those judgments. The issues are: (1) Whether the Hartungs are individually liable for negligence in failing to provide a safe place to work; (2) whether Mayer is liable as the supervising foreman on the Tulare job; (3) whether Wheat Growers is liable, under theories (a) that it retained control over the work place to a degree sufficient so as to render it liable, (b) that it was conducting an ultra-hazardous or inherently dangerous activity, and (c) that it failed to employ a competent contractor. We affirm as to the defendants P. A. Hartung, I. F. Hartung, and Leonard Mayer and reverse as to the defendant South Dakota Wheat Growers Association.

Hartung Construction Company (Company) was engaged in the business of building and repairing grain elevators. The Company was owned and operated by P. A. Hartung I. F. Hartung, and Roy Kelsey. Each of these individuals would obtain grain elevator construction or repair contracts, draw up the necessary plans, give them to a foreman, and have the work completed.

Plaintiff Reinhold Blumhardt was hired by the Company sometime in the latter part of 1971. He was told to report to Tulare, where the Company was engaged in an elevator repair and renovation project. The grain elevator was owned by Wheat Growers. This project was under the on-site supervision of defendant Leonard Mayer, and under the overall supervision of defendant P. A. Hartung. Plaintiff was put to work as a construction laborer.

Plaintiff was injured on March 8, 1972, in an accident to which he was the only witness. His version of the facts is that the defendant Leonard Mayer instructed him to repair holes in a floor of the grain elevator which was approximately forty to fifty feet above the concrete ground floor, and is hereafter referred to as the first floor. Mayer also told plaintiff that if it became too dusty on the first floor, he should go below the first floor and repair the holes from underneath. There was nothing between the first floor and the concrete ground floor except a plank with one end nailed to the side of a grain bin. The other end was nailed to a wooden brace. When it became too dusty to work above the first floor, plaintiff went to a hand-operated elevator, and lowered himself until he was underneath the first floor. He then stepped out onto the plank, and began to measure the distance between the floor joists, so that he could cut boards of proper size to patch the floor from beneath. The plank gave way and plaintiff fell to the concrete ground floor. He was permanently injured.

The South Dakota Worker's Compensation Act (SDCL Title 62) provides for compensation of workers for injury while on the job. This recompense is the only right that the employee has against an employer. SDCL 62-3-2. An exception to the exclusivity of the act is a right of action against third persons as provided by SDCL 62-4-38:

Whenever an injury for which compensation is payable under this title shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may at his option either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person, but he shall not collect from both.

It is established in this state that a co-employee may be "some other person than the employer" in an action at law for damages. Wilson v. Hasvold, 86 S.D. 286, 194 N.W.2d 251 (1972). SDCL 62-1-7 expressly provides that all corporate officers are regarded as employees. ²

I. F. Hartung was the secretary and a safety officer of the Hartung Construction Company. P. A. Hartung was the president and also a safety officer of the firm. The first query is whether the Hartungs, as co-employees, have any common-law liability for the accident. Potential liability does not necessarily follow from their designation as co-employees, because an essential distinction is drawn between employees acting within and those acting without their corporate supervisory capacity.

In order to find actionable negligence, there must be a duty on the part of the defendant to protect the plaintiff from injury, a failure to perform that duty, and injury to the plaintiff resulting from such failure. Cuppy v. Bunch, 88 S.D. 22, 214 N.W.2d 786 (1974); Ecklund v. Barrick, 82 S.D. 280, 144 N.W.2d 605 (1966); Roster v. Inter-State Power Co., 58 S.D. 521, 237 N.W. 738 (1931). In Wilson v. Hasvold, supra, the president and majority stockholder of the construction company was operating a caterpillar tractor at the work site which was being used to anchor or stabilize a crane when the boom on the crane collapsed and struck the plaintiff. We held that as an employee, the defendant could be individually liable insofar as his personal negligence caused or contributed to the plaintiff's injuries, but that, "as he cannot be considered an 'employer' for purposes of immunity, he cannot be held personally liable for conduct or conditions falling within the ambit of responsibility of the corporate employer." 86 S.D. at 293, 194 N.W.2d at 255. In Wilson, the defendant had a personal responsibility to exercise ordinary care in the operation of the tractor so that it did not contribute to the plaintiff's injury. SDCL 20-9-1. ³ Whether there was a breach of that duty was held to be a genuine issue of fact precluding summary judgment.

Appellants claim that the defendants I. F. and P. A. Hartung, as individuals, were guilty of negligence in failing to provide safe working conditions. While an act of omission, as well as commission, may constitute a want of ordinary care, Degen v. Bayman, 86 S.D. 598, 200 N.W.2d 134 (1972), it must be founded on a duty of care owed by the wrongdoer to the person injured or to a class of which he is a member. Waggoner v. Midwestern Development, Inc., 83 S.D. 57, 154 N.W.2d 803 (1967). In Wilson v. Hasvold, supra, we quoted with approval from Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969):

"The appellant was not injured by a direct negligent act of Oliver, he wasn't even on the premises when the appellant was injured. The negligence the appellant complains of is Oliver's failure to provide a safe place for her to work as required by state law. Certainly the safety requirements under the labor laws should be enforced in this state and their violation should not go unpunished, but if Oliver was merely a third party fellow-employee, he had no duty to furnish a place for appellant to work safe or otherwise. If the corporation was the employer and Oliver was the mere president, he was not personally liable in tort or under the compensation act for injuries sustained by corporate employees who are injured on defective corporate owned and maintained machines and equipment."

86 S.D. at 291, 194 N.W.2d at 254. The Hartungs cannot be held individually liable for working conditions which were the responsibility of the Company. As officers of that entity, P. A. and I. F. Hartung had such duties. Injuries resulting from their failures in that capacity, however, have been compensated under the Worker's Compensation Law. The umbrella of immunity extends accordingly. ⁴

Defendant Leonard Mayer was the Company job foreman on the Tulare project. This rendered his duties for the safety of his crew more immediate and direct. Adequate safety precautions apparently were not provided at the job site. The absence of such features, which likely would have prevented or lessened the impact of this accident, point to a serious lack of due care on the part of Mayer as job foreman. Again, however, such duties were within the ambit of his corporate responsibility. He was not present when the accident happened and the evidence shows no act of commission...