Coleman v. S. Patti Const. Co., 40637

• Decision Date: 07 December 1957
• Docket Number: No. 40637,40637
• Parties: James COLEMAN, Appellee, v. S. PATTI CONSTRUCTION COMPANY, Appellant.
• Court: Kansas Supreme Court

Page 1028

318 P.2d 1028

182 Kan. 53

James COLEMAN, Appellee, v. S. PATTI CONSTRUCTION COMPANY, Appellant.

No. 40637.

Supreme Court of Kansas.

Dec. 7, 1957.

Syllabus by the Court.

1. The record examined on an appeal from a verdict and judgment in a common law third party liability action under G.S.1949, 44-504, and held: (1) the court did not err in overruling defendant's demurrer to the plaintiff's evidence; and (2) the court abused its discretion in its oral statements to the jury during its deliberation and a new trial should have been granted on that ground.

2. Where a reasonable doubt exists as to whether an employee of one employer is also the 'special employee' of another employer the question should be submitted to the jury under proper instructions.

3. Upon a demurrer to the evidence this court is called upon to review only the sufficiency of plaintiff's evidence and not to weigh the evidence for the purpose of rendering a decision on the merits of the action, and this same duty is incumbent upon the trial court. The court shall consider all of plaintiff's evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory, nor weigh any differences between his direct and cross-examination, and give the evidence of plaintiff a liberal construction resolving all doubt against defendant and, if so considered, there is any evidence which supports or tends to support plaintiff's case on any theory, the demurrer shall be overruled.

4. When a defendant does not stand upon his demurrer to the plaintiff's evidence, and thereafter competent evidence in the case supplies the deficiency which may have theretofore existed in such evidence, any error in the overruling of the demurrer is cured and becomes immaterial.

5. Whenever the statements or instructions of a court to a jury are plainly coercive, or tend to be coercive and as such are prejudicial, a new trial shall be granted for abuse of discretion by the court.

Blake A. Williamson, Kansas City, James K. Cubbison, Lee Vaughan, Donald A. Hardy, and A. C. Cooke, Kansas City, on the brief, for appellant.

Charles S. Schnider, Kansas City, Joseph Cohen, John E. Shamberg, Thomas E. Joyce, Joseph P. Jenkins, Albert M. Ross, Norma Braly, Harold K. Wells, Barton P. Cohen, Arthur J. Stanley, Jr., J. E. Schroeder, Lee E. Weeks, Leonard O. Thomas, and Richard Millsap, Kansas City, on he brief, for appellee.

HALL, Justice.

This is an appeal from a verdict and judgment in a common law third party liability action instituted under G.S.1949, 44-504. The Board of Public Utilities of the city of Kansas City, Kansas, was engaged in the erection of a new power station in the city.

Defendant and appellant, S. Patti Construction Company, was under direct contract with the Board of Public Utilities to erect the superstructure, including the steel framework of the building.

The Boese-Hilburn Electric Company was under direct contract with the Board of Public Utilities to install the electrical wiring in the building. The plaintiff and appellee, James Coleman, was an employee of Boese-Hilburn Electric Company.

No relationship of primary contractor and subcontractor existed in this controversy between Boese-Hillburn Electric Company, plaintiff's employer, and the S. Patti Construction Company. That problem is not presented in this case.

By August 26, 1953, the steel framework had been erected and the concrete floor of the second story on the north side of the building had been poured. The high voltage electric switches and gear of the power plant was to occupy that section of the building. The installation of this elecrtical equipment was part of the Boese-Hilburn Electric Company's contract. The switch gear was encased in large metal lockers called 'cubicles' by the industry. These lockers were approximately 11 feet 4 inches in height, 7 inches deep and of various widths, some as narrow as 20 inches. They each weighed approximately 4,000 pounds.

In order to install this equipment Boese-Hilburn Electric Company found it necessary to remove a part of the steel framework on the second floor. The following plan of procedure was worked out for the delivery and installation of the cubicles:

The cubicles would be delivered to the job on trucks. A crane would lift them one at a time from the trucks to a position above the roof on the north section and the lower them through the steel framework of the second floor ceiling onto the concrete floor. On account of the size of the cubicles it was necessary that a larger opening be made in the steel framework. This could be accomplished by removing a steel I-beam from the framework.

It is at this point in the lawsuit that the facts become seriously disputed. Boese-Hilburn Electric Company contends that it employed and later paid the S. Patti Construction Company to remove the I-beam and to replace it after the delivery of the cubicles to the second floor, and thus plead in its petition and gave evidence that the two employees, Charles Pestock and George Riley, who actually removed and replaced the beam, were S. Patti Construction Company employees at all times.

This fact was disputed vigorously at the trial by the S. Patti Construction Company who contended that the Boese-Hilburn Electric Company made the two employees their special employees for this job. Of course, if they were the special employees of Boese, Patti could not be held for their negligence.

In either event, the employees, Pestock and Riley, removed the I-beam which was 20 feet long, 12 inches high and with a 4 inch flange, weighing 400 pounds more or less. They moved it about 8 feet to one side and set it down on the flange parallel to and directly on top of a larger beam on the same level about 17 feet above the concrete floor. The removal of this beam made a square opening through which the cubicles were lowered.

This beam was removed on the morning of August 26th and during the day the Boese-Hilburn Electric Company placed the cubicles on the concrete floor.

Between 3:00 and 4:00 o'clock p. m. of that day the appellee, James Coleman, was helping his employer Boese-Hilburn Electric Company secure the cubicles so they would not fall over or be disturbed during the night. In doing this Coleman and another employee were directed to climb up a ladder onto a cubicle, fasten one end of a rope to a metal ear on one corner of the cubicle, throw the rope over the steel framework above, and tie the other end of the rope to another ear on the cubicle. A particular cubicle was standing generally beneath the I-beam which had been removed and placed on top of another beam by Pestock and Riley. Coleman attempted to throw the rope from this cubicle over the unsecured beam. He grabbed the unsecured beam and it fell upon him knocking him off the cubicle and onto the concrete floor some 11 feet below. As a result of the fall he suffered a broken leg and other injuries.

Coleman was paid workmen's compensation benefits by Boese-Hilburn Electric Company to which he was entitled. This suit is brought against S. Patti Construction Company under G.S.1949, 44-504 on the theory of third party negligence.

The trial resulted in a verdict for the appellee in the sum of $25,000. The trial court ordered a remittitur of $5,000 and entered judgment for $20,000 against appellant S. Patti Construction Company.

Appellant makes five specifications of error. They are:

'1. In overruling defendants' demurrer to plaintiff's evidence.

'2. In overruling defendants' motion to strike certain special findings.

'3. In overruling appellants' motion for judgment notwithstanding the verdict.

'4. In overruling defendants' motion for new trial.

'5. In allowing judgment in the sum of $20,000.00 for plaintiff and against the defendant.'

At the close of appellee's case the appellant demurred to the evidence. Counsel for appellant stated:

'Mr. Williamson: At this time the defendant, the Patti Construction Company, defendant herein, demurs to the evidence of the plaintiff for the reason that they have not produced any evidence sufficient to constitute any cause of action in favor of the plaintiff and against the defendant. That under the evidence as produced, the evidence conclusively shows that the two men against whom the particular act of negligence are charged were under the direct supervision and direction of the superintendent for the Boese-Hilburn Electric Company, contributing their services for the exclusive use and benefit of the Boese-Hilburn Electric Company under its contract; that no subcontract was shown with the Boese-Hilburn Electric Company; that in fact, on the contrary they have shown that Boese-Hilburn paid the hour wages, the social security and the compensation upon these employees at the time they were employed upon this job and for the work and in the interest of the Boese-Hilburn contract; and nowhere in the evidence have they shown either that Boese-Hilburn or either of the two men charged with the alleged negligence at any time were doing any work that inured to the benefit of the Patti Construction Company on the work pertaining to the superstructure of this building.

'Mr. Schnider: If your Honor please, we argued this matter before at some length and produced decisions in the cases, and it is the same evidence. I would be happy to go over it again if you wish.

'The Court: I am not looking for work. I think the evidence should go to the jury. Overruled.'

At the trial and on this appeal appellant cites numerous authorities to support his contention that the evidence of the appellee made the two iron workers special employees of Boese-Hilburn Electric Company as a matter of law. Phillips v. Armour & Co., 108 Kan. 596, 196 P. 245; Baker v. Magnolia Petroleum Co., 111 Kan. 555, 207 P. 788; Mendel v. Fort Scott Hydraulic...