City of Mount Dora v. Voorhees, 888
| Decision Date | 09 October 1959 |
| Docket Number | No. 888,888 |
| Citation | 115 So.2d 586 |
| Parties | CITY OF MOUNT DORA, a municipal corporation, Appellant, v. Gertrude VOORHEES, a widow, Appellee. |
| Court | Florida District Court of Appeals |
Sanders, McEwan, Schwarz & Mims, Orlando, for appellant.
Hawkins, Orfinger & Moore, Daytona Beach, Sams, Anderson, Eaton & Alper, Miami, Phillip Goldman, Miami, for appellee.
Mrs. Voorhees sued the City of Mount Dora for the wrongful death of her husband while employed by an independent contractor doing work for the city. She recovered a judgment and the city appealed.
The city was engaged in the business of selling electricity which it delivered to its customers over its own distribution system. The city entered into a contract with Jett Construction Company to remove certain electrical lines from the poles along its streets and to replace them with new lines, without interruption of service.
Overhiser, superintendent of utilities for the city, frequented the job during its progress to see that the contract with Jett was faithfully carried out as far as the city was concerned, but he otherwise took no part in directing the work.
At the time Voorhees was killed a line 600 feet in length was being removed. Overhiser was standing near the truck that was to pull the wire from the poles. Close by were Walker and Voorhees, two groundmen of Jett's crew. Griffin, a lineman for Jett, had gone to the far end of the wire to free it from the pole and otherwise make necessary preparations for its removal. When all was in readiness Griffin so indicated by a hand signal to Overhiser who was standing in a position to receive the signal. Overhiser then relayed the signal to Walker and Voorhees by asking Walker to fasten the wire to the truck and Voorhees to drive the truck forward when that was done. On no other occasion, according to the evidence, did Overhiser make any suggestion to Jett's employees concerning their duties in connection with the work being performed under the contract.
In a literal compliance with Overhiser's direction, Walker, who was an experienced electrician, tied the bare wire to the metal bumper of the truck without fastening a rope between to act as an insulator, according to the customary practice of the industry. Walker admitted that he knew it was unsafe to secure the wire to the truck in that fashion and that he had never done so before. From where Overhiser was situated he could not see how Walker fastened the wire to the truck nor did he undertake to tell him how to do it.
In the process of removing the old wire it came into contact with a high tension line and caused a loud explosion. In the excitement which ensued Voorhees alighted from the energized truck and as his foot touched the ground he was instantly killed by the passage of 2,400 volts of electricity through his body.
It is generally recognized that one who engages an independent contractor to perform a job for him, without reserving control and direction of the work, will not become liable for the negligence of an employee of the independent contractor. Mumby v. Bowden, 25 Fla. 454, 6 So. 453. There are, however, two theories upon which the employer of an independent contractor may be held liable in that situation. First, by interfering or meddling with the job to the extent of assuming the detailed direction of it and thus becoming the master of the independent contractor's employee. Second, by committing some act of negligence for which the prime employer would be liable, irrespective of the employer-independent contractor relationship.
It is upon the latter theory that Mrs. Voorhees apparently based her case, for in her brief her counsel say:
'The liability here is not * * * based on the theory that the defendant became the master of the negligent employee of the independent contractor.
'It is only when the defendant, through its agents, servants or employees, negligently interferes with or meddles with the work being done, or it directs the doing of a negligent act, and such action by the defendant results in injury to or death of an employee of an independent contractor, that the defendant is liable.'
In her complaint Mrs. Voorhees, in substance, makes the following charges against the city:
1. Negligently interfering in the performance of the contract by assuming direction and control of the method and manner of removal of the old wire.
2. Requiring deceased to pull with a truck an uninsulated line 600' long through limbs of oak trees along the street in close proximity to an energized primary electric line of high voltage.
3. Supplying a city truck with an uninsulated metal bumper for the purpose of pulling out the old wire close to an energized high voltage line.
4. Failing to insulate the energized line next to the old line being removed.
5. Failing to warn deceased of the potential danger involved although the city had knowledge that he was inexperienced in such work.
6. Failing to have lines properly fused so as to cut off the current should a ground or short occur.
7. The city through its agent Overhiser did 'specifically instruct employees of said contractor to tie or wrap one end of said uninsulated wire to or around the metal bumper of said truck.'
As to the first charge, the city through its agent Overhiser did not assume to direct and control the method and manner of removal of the old wire, as alleged. Mere suggestion as to details of the work by way of cooperation in the undertaking by an agent of the city to an employee of the independent contractor is not enough to change the relationship to that of master and servant, and thus cause the city to become liable for the negligence of the employee of such independent contractor. Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480, Steinman v. Pennsylvania R. Co., 3 Cir., 54 F.2d 1052, 1053.
As to the second charge, the evidence reveals no causal connection between the death of Voorhees and the existence of trees along the street, or the excessive length of wire being removed.
As to the third charge, the truck furnished by the city was no different from the trucks used for the same purpose by Jett on other jobs. In addition, the proximate cause of the accident was the failure of Walker to fasten a rope between the wire and the bumper of the truck according to customary standards of safety, rather than the failure of the city to furnish a suitable truck. For a discussion of the question...
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