Carter v. FRASER CONSTRUCTION COMPANY

• Decision Date: 15 July 1963
• Docket Number: Civ. A. No. 1707.
• Citation: 219 F. Supp. 650
• Parties: Thelma Jane CARTER, Administratrix of the Estate of Junior Raymond Carter, Deceased, Plaintiff, v. FRASER CONSTRUCTION COMPANY, Baldor Electric Company, Lillard Enterprises, Inc., and Leo Ray, d/b/a Modern Masonry Company, Defendants.
• Court: U.S. District Court — Western District of Arkansas

219 F. Supp. 650

Thelma Jane CARTER, Administratrix of the Estate of Junior Raymond Carter, Deceased, Plaintiff, v. FRASER CONSTRUCTION COMPANY, Baldor Electric Company, Lillard Enterprises, Inc., and Leo Ray, d/b/a Modern Masonry Company, Defendants.

Civ. A. No. 1707.

United States District Court W. D. Arkansas, Fort Smith Division.

July 15, 1963.

Sexton & Morgan, Ft. Smith, Ark., for plaintiff.

Bethell & Pearce, Ft. Smith, Ark., for Baldor Electric Co.

Hardin, Barton & Hardin, Bryan & Fitzhugh, Fort Smith, Ark., for Lillard Enterprises.

Pearson & Pearson, Fayetteville, Ark., Shaw, Jones & Shaw, Ft. Smith, Ark., for Fraser Const. Co.

Dobbs, Pryor & Dobbs, Ft. Smith, Ark., for Leo Ray.

JOHN E. MILLER, Chief Judge.

(On Motions for Summary Judgment filed by Lillard Enterprises, Inc., and Baldor Electric Company.)

On April 12, 1963, the defendant, Lillard Enterprises, Inc., filed its motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on the ground that the pleadings and the affidavit of W. H. Lillard, with building contract attached thereto, show that said defendant is entitled to a judgment as a matter of law on the complaint filed against it by plaintiff.

On April 8, 1963, the defendant, Baldor Electric Company, filed its motion for summary judgment, and alleged as a ground therefor that the pleadings on file, together with the affidavit of Fred C. Ballman and exhibits attached thereto, demonstrate that as a matter of law there existed no relationship between the plaintiff's decedent and the defendant which imposed upon the defendant any duty to be concerned with the safety of the decedent, and that the defendant did not by its conduct assume any such responsibility, and therefore is not liable for any injury sustained by the deceased.

On April 12, 1963, the plaintiff filed a motion asking the court to defer consideration of the motions for summary judgment until the depositions of Fred C. Ballman, W. H. Lillard, Leo Ray, and John A. Fraser could be taken, reduced to writing, and made a part of the record.

On April 12, the court granted the motion of plaintiff and allowed the plaintiff "ten days after completion of depositions in which to file response to motion for summary judgment of Baldor Electric Company and to submit brief in support of said response, and to file amendment to complaint as to negligence of defendants Leo Ray and Fraser Construction Company."

On April 17, 1963, a similar order was entered deferring action on the motion for summary judgment of Lillard Enterprises, Inc.

On June 5, 1963, the plaintiff filed an amendment to her original complaint, and on the same date the plaintiff filed as exhibits to be considered by the court the depositions of the individuals heretofore referred to, together with a photograph copy of the specifications for additions to Baldor Electric Company, which specifications bear signatures on behalf of Lillard Enterprises, Inc., and Baldor Electric Company.

The court has studied and considered the pleadings and depositions on file, together with the affidavits hereinbefore referred to, and is convinced that there is no genuine issue as to any material fact between plaintiff and the two moving defendants, and that each of the movants is entitled to a judgment as a matter of law. In reaching this conclusion the court is not unmindful that the burden is upon the movant to establish the complete absence of any genuine issue of fact and that all doubts as to whether there exists a genuine issue of fact should be resolved against the movant.

The plaintiff is a citizen and resident of the State of Oklahoma. The deceased, Junior Raymond Carter, at the time of his death was also a citizen and resident of the State of Oklahoma, and plaintiff is the duly appointed administratrix of the estate of the deceased.

The defendant Fraser Construction Company, hereinafter referred to as Fraser, is a corporation organized and existing under the laws of the State of Arkansas, with its principal place of business in the City of Fort Smith, Arkansas. The defendant Baldor Electric Company, hereinafter referred to as Baldor, is a corporation organized and existing under the laws of the State of Missouri, with its principal office in the City of St. Louis, Missouri, and is engaged in business in the City of Fort Smith, Arkansas. The defendant Lillard Enterprises, Inc., hereinafter referred to as Lillard, is a corporation organized and doing business under the laws of the State of Arkansas, with its principal place of business in the City of Fort Smith, Arkansas. The defendant Leo Ray, hereinafter referred to as Ray, is a citizen of the State of Arkansas and resides in the City of Fort Smith, Arkansas, and is engaged in business under the name of Modern Masonry Company.

On April 12, 1962, Junior Raymond Carter, plaintiff's decedent, was employed by Sweetser-Buckner Construction Company, hereinafter referred to as Sweetser, to perform work and labor in finishing the cement floor of a building then under construction, to be occupied by the defendant Baldor and situated upon land owned by the defendant Lillard.

On January 19, 1962, Fraser entered into a written contract with Lillard by which Fraser agreed to build an additional building immediately to the north of the building then presently located on the land and under lease to Baldor. Fraser also agreed, inter alia, to furnish all of the materials and labor required for the construction and building, and "the work will be done in a good and workmanlike manner and in all respects in compliance with the plans and specifications and shall be done in compliance with the rules and regulations of the civil authorities. The materials going into said building are to be of first class quality. The building is to be constructed in strict accordance and compliance with the drawings, plans and specifications therefor * * *."

By the terms of the contract, the contractor and all subcontractors were required to carry public liability and property damage insurance and adequate Workmen's Compensation Insurance for their employees.

The contract further provided that it did not cover the electrical work nor the labor and materials incident to the installation of the electrical appliances.

In 1955 or 1956 Baldor desired to open a business in the City of Fort Smith and contacted the Chamber of Commerce of the City to obtain a location and building. Lillard was the owner of certain land in the City of Fort Smith that was suitable for the construction of a manufacturing plant. Following certain negotiations, Lillard contracted with Fraser to erect the original building, and upon its completion Baldor leased the building from Lillard and immediately began manufacturing electric motors. The business prospered, and it was necessary to have an additional room or building, whereupon Lillard and Baldor on September 5, 1958, entered into another lease, in which it was stated:

"It is understood that one building only has been built on the above described land which building has been and is now occupied by Lessee (Baldor) under lease dated February 4, 1956, but that it is contemplated that an additional building will be built, according to plans and specifications shown by and identified as Exhibit `1' attached hereto and made a part of this lease. It is further contemplated that said building will be finished and ready for occupancy on or before the 15th day of November 1958. Said building will, of course, be constructed by and at the expense of Lessor (Lillard) in accordance with said plans and specifications. This lease is for a term of 10 years commencing when said additional building is finished and ready for occupancy at a yearly rental of $10,200.00. * * * It is further understood that the premises, including the present structures or improvements, shall be used pending the completion of the new building, under the current lease now in effect, as aforesaid, and that when the new building has been completed and ready for occupancy this lease shall supersede the other lease between the parties dated February 4, 1956, * * *."

For some unexplained reason, Lillard did not arrange to construct the additional building until it entered into the contract of January 19, 1962, with Fraser, heretofore referred to. On that date Lillard and Baldor entered into another lease agreement in which, inter alia, it is stated:

"WHEREAS, Lessor Lillard, party of the first part and Lessee Baldor, party of the second part are presently parties to a Corporation Lease, dated September 5, 1958, by the terms of which Second Party occupies improvements and land owned by First Party * * *; and

"WHEREAS, Second Party needs additional building area for its manufacturing facilities, and First Party is desirous of furnishing such additional space; and

"WHEREAS, the parties agree that upon completion of the additional floor space, there should be a new lease between the parties covering the additional facilities at an increased rental and for a new term, * * *".

The lease then provides that Lillard shall proceed without unnecessary delay to cause to be constructed an addition to the building then occupied by Baldor, and upon completion of the additional building, it shall be occupied by Baldor at an increased rental, and "that on such date the existing lease agreement between the parties dated September 5, 1958, shall be terminated," and the lease agreement of January 19, 1962, shall become effective.

In the original complaint the plaintiff alleged that the erection of the additional building was at the specific request of Baldor, and Baldor furnished the plans and specifications for the said structure; and that the defendant Ray performed the work as a masonry contractor in the erection of the said structure under a subcontract with Fraser.

That on April 12, 1962, the plaintiff's decedent was engaged in the performance of his duties under his employment by...