C & L Rural Elec. Co-op. Corp. v. Kincaid

• Decision Date: 12 January 1953
• Docket Number: No. 4-9858,4-9858
• Citation: 256 S.W.2d 337,221 Ark. 450
• Court: Arkansas Supreme Court
• Parties: C & L RURAL ELECTRIC COOPERATIVE CORP. et al. v. KINCAID et al.

Page 337

256 S.W.2d 337

221 Ark. 450

C & L RURAL ELECTRIC COOPERATIVE CORP. et al. v. KINCAID et al.

No. 4-9858.

Supreme Court of Arkansas.

Jan. 12, 1953.

Rehearing Denied April 20, 1953.

T. S. Lovett, Jr., Star City, Rose, Meek, House, Barron & Nash, Little Rock, for appellants.

V. J. Brocato, Clarksdale, Miss., Brockman & Brockman, Pine Bluff, for appellees.

HOLT, Justice.

Appellants, corporations operating in this State, sued appellees on an indemnity contract. Appellees filed a demurrer to the complaint and also a motion to dismiss, both of which were sustained by the trial court. Appellants elected to stand on the complaint, prayed, and were granted an appeal.

The complaint filed June 21, 1950 alleged, in effect, that their cause of action grew out of business transacted by appellees in this State; that prior to February, 1947, appellant, C & L Rural Electric Cooperative Corporation, owned and operated transmission lines going through several counties of this State, most of which had been constructed for it by appellees, Delta Construction Co.; that in February, 1947, C & L made a contract with appellees, under the terms of which appellees agreed to furnish all material and labor necessary to construct some 700 additional miles of electric transmission wires in this State to tie in with said plaintiffs' existing system.

It was provided in Article IV, Section 1 of the contract:

'Section 1.--Protection To Persons And Property. The Contractor shall at all times take all reasonable precautions for the safety of employees on the work and of the public, and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes. All machinery and equipment and other physical hazards shall be guarded in accordance with the 'Manual of Accident Prevention in Construction' of the Associated General Contractors of America unless such instructions are incompatible with Federal, State, or Municipal laws or regulations.

'The following provisions shall not limit the generality of the above requirements: (a) The Contractor shall at no time and under no circumstances cause or permit any employee of the Contractor to perform any work upon energized lines, or upon poles carrying energized lines. * * * (g) The Project, from the commencement of work to completion, or to such earlier date or dates when the Owner may take possession and control in whole or in part as hereinafter provided shall be under the charge and control of the Contractor and during such period of control by the Contractor all risks in connection with the construction of the Project and the materials to be used therein shall be borne by the Contractor. The Contractor shall make good and fully repair all injuries and damages to the Project or any portion thereof under the control of the Contractory by reason of any act of God or other casualty or cause whether or not the same shall have occurred by reason of the Contractor's negligence. The Contractor shall hold the Owner harmless from any and all claims for injuries to persons or for damage to property happening by reason of any negligence on the part of the Contractor or any of the Contractor's agents or employees during the control by the Contractor of the Project or any part thereof.'

It was further alleged that on June 19, 1947, appellees had in their employ and control Grady L. McEntire, who, while performing certain work on an energized pole under the directions and orders of appellees' superintendent, Strode, came in contact with a live wire and was seriously and permanently injured; that thereafter on February 9, 1948, McEntire sued appellant C & L Rural Electric Cooperative Corporation and others, not including appellees.

A trial resulted in a judgment against C & L for $40,000 damages and that on appeal to this court, the judgment was affirmed December 19, 1949, C & L Rural Electric Cooperative Corporation v. McEntire, 216 Ark. 276, 225 S.W.2d 941, that notice of the pendency of the McEntire suit was duly given to Delta Construction, appellees, but they refused to defend said suit.

Appellants further alleged that at the time McEntire received his injury, appellant, Employer's Mutual Liability Insurance Company of Wisconsin, had issued to appellant, C & L, its liability policy, under the terms of which it had agreed to pay all sums up to $25,000 which C & L might be required to pay McEntire, cost of any litigation, and that in the event of payment by the Insurance Company under the policy, said Company should be subrogated to all of the insured's (C & L's) rights under the policy. It was further alleged that appellant, Insurance Company, has duly performed its obligation under the policy; that on February 13, 1950, C & L paid on the McEntire judgment $10,742.99, appellant, Insurance Company, paid $26,858.33, and the balance of the judgment was paid by the American Casualty Company, the insurance carrier of codefendants, Dickinson & White, in the McEntire suit above; that 'by reason of Article IV, Section 1, of the contract of construction hereinbefore referred to, defendants (appellees) assumed all risks in connection with the construction of the project, so that by virtue of said assumption of risk the defendants have become liable to the plaintiff, C & L Rural Electric Cooperative Corporation, and to the plaintiff, Employer's Mutual Liability Insurance Company of Wisconsin, as its subrogee for their disbursements in connection with the said McEntire case.

'13. The defendants (appellees) were negligent in failing to use ordinary care to furnish their employee, the said McEntire, a safe place to work, in failing to warn and advise the said McEntire that said Pole 249 carried energized wires, and in failing to advise the plaintiff, C & L Rural Electric Cooperative Corporation, that they proposed to work on said pole at said time, and the injuries sustained by the said McEntire proximately resulted from negligence on the part of defendants. By reason of Article IV, Section 1, of said contract of construction, defendants are liable to indemnify the plaintiff, C & L Rural Electric Cooperative Corporation, and the plaintiff, Employer's Mutual Liability Insurance Company of Wisconsin, as its subrogee, for their disbursements and expenses in said McEntire case, inasmuch as said Article provided that Delta should hold C & L Rural Electric Cooperative Corporation harmless for any and all claims for injuries to persons happening by reason of any negligence on the part of Delta Construction Company or its agents or employees during the control of said construction company of the Project or any part thereof. At the time of the accident to the said McEntire defendants were in control of the Project. * * * C & L Rural Electric Cooperative Corporation prays judgment against the defendants for the sum of $10,742.99, and plaintiff, Employer's Mutual Liability Insurance Company of Wisconsin, as subrogee, prays judgment against defendants for the sum of $28,475.47, and for all proper relief.'

Appellees' demurrer filed July 12, 1950 alleged misjoinder of parties plaintiff, and that a cause of action was not stated. Their motion to dismiss filed September 10, 1950 alleged, in effect, that (1) The Circuit Court had no jurisdiction because the Arkansas Workmen's Compensation Commission had sole jurisdiction to hear and determine the...