Crawford Johnson & Co. v. Duffner, 6 Div. 34

• Decision Date: 04 August 1966
• Docket Number: 6 Div. 34
• Citation: 189 So.2d 474,279 Ala. 678
• Parties: CRAWFORD JOHNSON & CO., Inc. v. Joseph Leon DUFFNER.
• Court: Alabama Supreme Court

Page 474

189 So.2d 474

279 Ala. 678

CRAWFORD JOHNSON & CO., Inc. v. Joseph Leon DUFFNER.

6 Div. 34.

Supreme Court of Alabama.

Aug. 4, 1966.

John H. Morrow and Bradley, Arant, Rose & White, Birmingham, for appellant.

Bryan Chancey and Gordon & Cleveland, Birmingham, for appellee.

COLEMAN, Justice.

Defendant appeals from a judgment granting plaintiff's motion for new trial in an action for personal injury to plaintiff allegedly resulting from defendant's negligence in failing to keep in a reasonably safe condition a certain gas fired boiler owned by defendant.

A tube in the boiler was leaking and defendant contracted with J. L. Duffner, Sr., who undertook to repair the leak. Plaintiff was an employee of Duffner. Plaintiff went inside the fire box and, while he was inside, the gas burners ignited and plaintiff was burned. Plaintiff contends that the burners were ignited because the gas and water were controlled by one switch which was extraordinary and not known to plaintiff or his employer. Plaintiff contends that such a switch constituted a defect or danger in the premises which defendant was bound to correct or warn against.

The jury returned a verdict for defendant and plaintiff filed motion for new trial. The trial court granted the motion because of error in giving defendant's requested charges 1, 7, 10, 33A, 34, and 35. The court expressed the opinion that the other grounds of the motion are not well taken.

Defendant appeals and assigns for error the granting of the motion. We will consider whether the giving of the enumerated charges was error to justify granting a new trial.

Defendant's given charge 35 recites:

'35. I charge you gentlemen of the jury that the defendant was under no duty to make its premises reasonably safe from hazards of which plaintiff's employer, J. L. Duffner, Sr., was fully aware, and if you are reasonably satisfied from the evidence that plaintiff suffered his injuries and damages as a proximate consequence of such a hazard, then your verdict must be for the defendant.'

Defendant says that the duty, with respect to dangers that exist on the premises, owed by the owner of premises to the employees of an independent contractor who undertakes to do work on the premises of the owner, has not been heretofore precisely stated by this court. One facet of the question, however, was considered in United States Cast Iron Pipe & Foundry Co. v. Fuller, 212 Ala. 177, 102 So. 25, where this court quoted with approval from an earlier opinion as follows:

'* * * It may be conceded that a mine owner, who, for some benefit to himself, procures the working of his mine, even by an independent contractor, and therefore impliedly invites such contractor and his employe § to enter and use such mining premises, is liable to them for personal injuries resulting from any condition of the premises which is inherently dangerous, if the owner had knowledge or notice of such condition and the contractor or his employe § had not. (Citations Omitted.)' Connors-Weyman Steel Co. v. Kilgore, 189 Ala. 643, 645, 66 So. 609, 610.

The inference from the last quoted clause is that, if the independent contractor or his employees had knowledge or notice of a dangerous condition, the owner of the premises would not be liable for injury resulting from the condition.

Charge 35 is based on the proposition that the owner of premises performs and discharges his duty to the employees of the contractor when the owner warns the contractor of the dangerous condition. It must reasonably follow that there is no duty on the owner to warn the contractor when the contractor is already fully aware of the danger. To require the owner to inform the contractor, of that of which the contractor is already fully aware, would be contrary to the rule that the law does not require the doing of a useless thing. It would be useless for the owner to inform the contractor of something the contractor already knows.

Other courts have considered the argument that warning to the independent contractor alone is not enough. The argument has been made that the owner cannot discharge his duty to the employees of the contractor merely by warning the contractor. It has been argued that the warning must be given to the employee himself.

In Hotel Operating Co. v. Saunders' Adm'r, 283 Ky. 345, 141 S.W.2d 260, action was brought against the owner of a building for death of the employee of an independent contractor who was electrocuted while repairing the wiring on an elevator in the building. Judgment was rendered for the plaintiff and the owner appealed. The appellate court reversed the judgment and decided that the owner was entitled to a directed verdict. The evidence showed that defendant had sent a letter to the contractor advising that the elevator was in a 'very dangerous condition' and that the wiring of the elevator must be put in first class condition and the conduit of said wiring properly grounded. The appellate court said that this written, formal notice to the contractor was notice to the contractor's employee and was all the notice the employee could expect. The court said further that, after such a warning, the employee was charged in law with knowledge of the danger incident to the work he was undertaking and assumed the risk incident thereto.

In Gulf Oil Corporation v. Bivins, 5 Cir., 276 F.2d 753, the court considered the duty of the owner to employees of an independent contractor and stated the rule as follows:

'We are persuaded by both precedent and principle that the owner or occupier of particular property has a duty to warn the employees of an independent contractor who has undertaken to do work on the property, of dangers that are hidden on or inhere in that property, and that this duty is discharged if those in charge of the work for the independent contractor are given warning or have knowledge of the danger. * * *' (276 F.2d at page 758)

In Levesque v. Fraser Paper Limited, 159 Me. 131, 189 A.2d 375, where an employee of an independent contractor sought to recover from the owner of a shed for injury sustained when the employee fell through the roof which the contractor had undertaken to repair, the court said:

'We declare, therefore, that in this case, assuming a latent dangerous defect in the roof of the loading shed, of which defect the defendant had actual or constructive knowledge, and out of which defect and knowledge arose a duty on the part of the defendant to notify plaintiff or Contractor, such duty could be performed by giving notice of the danger actually or constructively known by it to be latent in the roof of the loading shed to the Contractor, or someone in charge of the operation on Contractor's behalf.' (189 A.2d at pages 379 and 380)

In reversing a judgment for plaintiff in an action against the owner of a telephone pole for death of an employee of the lessee of the right to use the pole, where the employee was killed while working for the lessee and the pole fell, allegedly as the result of a defect in the pole, the court said:

'* * * Any duty on the part of defendant to warn of the condition of the pole would ordinarily be discharged when defendant notified all supervisory officials of the decedent. They knew what employees of theirs had assumed such relationships to them that they would be put to work on this job. Defendant and all the world except these supervisory officials were ignorant of this knowledge. To require the defendant to attempt to learn the identity of each and every employee of the lighting company, who was and would be involved on this job, would not only be wholly unreasonable, but it would in all probability prove both futile and impossible since the supervisory officials of the lighting company might shift at any time, or be compelled to shift, the employees assigned to this work.' Storm v. New York Telephone Co., 270 N.Y. 103, 110, 200 N.E. 659, 662.

The Supreme Court of Ohio has said:

'It may be impracticable and well nigh impossible for a large manufacturing enterprise to give individual notices of danger, surrounding the performance of the work to be done, to many hundreds of employees who may be working in its plant for independent contractors. Their presence in the plant and their identities may be unknown to the plant management. Any large industrial plant must necessarily have within its...