Brown v. Gamble Const. Co., Inc., s. 36939 and 36940

• Decision Date: 25 May 1976
• Docket Number: Nos. 36939 and 36940,s. 36939 and 36940
• Citation: 537 S.W.2d 685
• Parties: Mrs. Ruby BROWN, Plaintiff-Appellant-Respondent, v. GAMBLE CONSTRUCTION CO., INC., Defendant-Appellant, Target Stores, Inc., and Larson & McLaren, Inc., et al., Defendants-Respondents. . Louis District. Division One
• Court: Missouri Court of Appeals

Page 685

537 S.W.2d 685

Mrs. Ruby BROWN, Plaintiff-Appellant-Respondent, v. GAMBLE CONSTRUCTION CO., INC., Defendant-Appellant Target Stores, Inc., and Larson & McLaren, Inc., et al Defendants-Respondents.

Nos. 36939 and 36940.

Missouri Court of Appeals, St. Louis District. Division One.

May 25, 1976.

Hugh E. Gibbons, George A. Adolf, Joseph H. Mueller, St. Louis, for defendant-appellant.

Klamen, Summers & Compton, Robert F. Summers, St. Louis, for plaintiff-appellant-respondent.

WEIER, Presiding Judge.

These consolidated appeals arise out of a civil action for money damages for wrongful death. At the close of plaintiff's case, the trial court sustained the joint motion of defendants Target Stores, Inc., Larson & McLaren, Inc., A. J. Nelson and George Root for a directed verdict. The jury returned a verdict in favor of plaintiff, decedent's widow, for $50,000.00 against Gamble Construction Company, Inc.

Defendant Gamble appeals from the judgment contending that its motion for directed verdict at the close of the evidence should have been sustained. Plaintiff also appeals alleging error in the trial court's ruling sustaining the joint motion for a directed verdict. Plaintiff's motion for a new trial, however, refers only to defendant Larson & McLaren, Inc., architects. The remaining defendants, Target Stores, Inc., A. J. Nelson and George Root are not mentioned. Accordingly, plaintiff has preserved nothing for appellate review as to these defendants. Rule 78.07; McMahon v. Charles Schulze, Inc., 483 S.W.2d 666, 667(2) (Mo.App.1972). Only the court's ruling sustaining the motion for a directed verdict as to the architects will be considered on plaintiff's appeal.

We review the action of the trial court upon the premise that a verdict should not be directed 'unless all reasonable men, in the honest exercise of a fair, impartial judgment, would draw the same conclusion from the facts which condition the issue; * * * where there is uncertainty arising from a conflict in the testimony or because, the facts being indisputed, fairminded men would honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury; * * *.' Sippel v. Custom Craft Tile, Inc., 480 S.W.2d 87, 89(1) (Mo.App.1972).

The facts that 'condition the issue' in this case are as follows. Plaintiff's decedent, a roofer of some thirty years' experience, was applying glue to the roof of a Target store under construction in Ballwin, Missouri, when he fell through a hole in the roof and was fatally injured. Such holes, commonly found in uncompleted roofs, are left to permit installation of heating ducts and air-conditioning units after insulation of the roof is complete. They do not constitute defects in plans or specifications. Thus, there is no factual basis to determine the architect failed to use care in the preparation of plans and specifications for the construction of the building.

There is no contention or evidence that the plans were not complied with or were, per se, unsafe. What plaintiff does contend in essence is that the architects have a duty as 'design professionals' to supervise the construction and insure that safety precautions are taken to protect workers. But architects are under no duty to supervise construction unless they expressly agree to do so. Aetna Insurance Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472, 476(3--5) (8th Cir. 1968); Westerhold v. Carroll,419 S.W.2d 73, 80--81 (Mo.1967); Miller v. DeWitt, 59 Ill.App.2d 38, 208 N.E.2d 249, 284--85(23) (1965), affirmed in relevant part, 37 Ill.2d 273, 226 N.E.2d 630 (1967). A determination in this case as to who was responsible for general supervision of the project and, specifically, for establishing safety measures to protect persons and property involved is not difficult. By contract, Gamble expressly assumed responsibility for safety precautions during the construction of the store. Article 10 of the contract, 'Protection of Persons and Property', states that 'The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work.' Article 2.2.4 provided: 'The Architect will not be responsible for construction means, methods, techniques, sequences of procedures, or for safety precautions and programs in connection with the Work, * * *.' In a letter of mutual agreement between Gamble and the subcontractor, Southside Roofing Company, Gamble promises to 'plan, schedule and supervise all work with regard to your individual as well as total job requirements.' (Emphasis added.) Gamble's responsibility for project supervision and safety precautions appears quite clear. The architect was relieved of any such duty.

The evidence squarely placed the duty to take safety precautions upon defendant Gamble, not upon the architect. There was no conflict in the testimony creating uncertainty. The decision of the trial court sustaining the motion for a directed verdict as to Larson & McLaren, Inc. is affirmed.

Defendant Gamble contends on appeal that it was the statutory employer of plaintiff's decedent under § 287.040(4), RSMo 1969, and that plaintiff is therefore precluded from bringing a common law action against it.

The relevant facts are not in dispute. Plaintiff's decedent was fatally injured on April 23, 1971, when he fell through a hole in the roof of a partially constructed Target store where he was employed as a roofer. It was stipulated that defendant Gamble was the general contractor and that Southside Roofing Company, decedent's employer, was Gamble's subcontractor. It was further stipulated that Southside Roofing Company was a Missouri corporation operating under this state's Workmen's Compensation Law, that the company had Workmen's Compensation coverage while decedent was employed on this job, that decedent was covered under that plan, and that plaintiff as his widow had received benefits from Southside's insuror. The testimony of Gamble's president established that Gamble was operating under the provisions of the Missouri Workmen's Compensation Act at the time of the accident. The installation of the roofing insulation and membrane was done under Gamble's contract with the owner, Gamble sobcontracting that portion of the work to Southside Roofing Company. Decedent was fatally injured while installing the roof's insulation.

Suit was filed against Gamble and the other defendants on the theory of common law negligence. At the close of plaintiff's case and again at the close of all the evidence Gamble moved for a directed verdict contending, inter alia, that its status as decedent's statutory employer made it immune from a common law negligence suit when benefits had been paid by decedent's immediate employer. The trial court denied defendant's motions, ruling specifically that decedent was not a statutory employee of Gamble.

In response to appellant Gamble's contention of immunity from suit through its status as statutory employer, respondent Brown merely asserts that, for various reasons, the point has not been preserved for appellate review. She contends that Gamble failed to offer the trial court any case law or specific statutory sections for consideration in ruling on its motions and failed to state specific grounds for its two motions...