Campbell v. Barnett, 7940.
| Decision Date | 27 September 1965 |
| Docket Number | No. 7940.,7940. |
| Parties | Walter H. CAMPBELL and Aetna Casualty & Surety Co., Inc., a corporation, Appellants, v. John BARNETT, d/b/a KSWS-TV, and Andrews Tower, Inc., a corporation, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard E. Ransom, Albuquerque, N. M. (Bernard D. Craig, Kansas City, Mo., and Smith & Ransom, Albuquerque, N. M., were with him on the brief), for appellants.
James T. Paulantis, Albuquerque, N. M. (Iden & Johnson and Bryan G. Johnson, Albuquerque, N. M., were with him on the brief), for appellee John Barnett.
William B. Keleher, Albuquerque, N. M. (Keleher & McLeod and Russell Moore, Albuquerque, N. M., were with him on the brief), for appellee Andrews Tower, Inc.
Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.
Appellant-plaintiff Campbell was injured in the collapse and fall of a television tower owned and operated by appellee-defendant Barnett and built by appellee-defendant Andrews Tower, Inc. In his complaint plaintiff asserted that the owner and the builder were each negligent and, hence, liable to him. Jurisdiction is based on diversity. The jury returned a verdict for the defendants. In this appeal the principal errors urged relate to instructions of the court.
Barnett, the owner of a television station at Roswell, New Mexico, hired Andrews Tower, Inc., to build a tower for his station. Andrews built the tower, 1,610 feet in height, at a site near Caprock, New Mexico; and the tower went into operation in March, 1957. Plaintiff Campbell was an employee of Commercial Radio Monitoring Company which was in the business of checking and adjusting radio and television transmitter frequencies. On December 8, 1960, Campbell, in the course of his employment, was at the transmitter building located near the tower. The area was then, and had been for sometime, subjected to a severe snow, sleet and wind storm. The tower collapsed and portions crushed through the building severely injuring Campbell. Aetna, the compensation carrier for his employer, paid him under its compensation policy, and, to the extent of the amount so paid, is the assignee of his claim against the defendants.
The negligence claimed was the failure to design and build the tower with sufficient strength and stability to withstand wind and icing conditions present in the area. No purpose would be served by relating the conflicting evidence. It was sufficient to take the case to the jury and is sufficient to sustain the verdict in favor of the defendants.
We are bound by New Mexico law. In Tipton v. Clower, 67 N.M. 388, 356 P.2d 46, 49, the New Mexico Supreme Court considered the principles pertaining to the liabilities of an independent contractor and an owner for work done by the contractor. The opinion, so far as pertinent, said that the contractor may be found liable to third parties who have been foreseeably endangered by the contractor's negligence, even though the work had been accepted by the owner, with the limitation that "if the owner discovers the danger, or it is obvious to him, his responsibility supersedes that of the contractor." In the instant case the trial court followed and applied these principles.
The first error claimed is that the plaintiff was required at the start of the trial to make an election of the theory under which he intended to proceed. The situation was that counsel for the plaintiff in his opening statement said that the owner had knowledge of the hazardous condition of the tower. Andrews, the contractor, then moved for a directed verdict on the ground that such knowledge would preclude recovery from it. The court took the motion under advisement but stated that "somewhere along the line the plaintiff is going to have to make up his mind what theory he is going on."
We recognize that Rule 8(e) (2), F.R. Civ.P., permits a plaintiff to plead alternate, hypothetical and inconsistent claims and that Rule 20(a) permits the joinder of defendants in cases such as this. No action of the court violated either...
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