Cummings v. Hoosier Marine Properties, Inc., 3--1074A170

Decision Date23 June 1977
Docket NumberNo. 3--1074A170,3--1074A170
PartiesMarjorie CUMMINGS, as Administratrix of the Estate of Lloyd Cummings, Deceased, and Janet Sue Cook, as Administratrix of the Estate of James Arnold Cook, Deceased, Plaintiffs-Appellants, v. HOOSIER MARINE PROPERTIES, INC., Defendant-Appellee, Woodruff & Sons, Inc., Co-Defendant below.
CourtIndiana Appellate Court

Clarence Borns, Thomas E. Dolatowski, Borns, Quinn, Kopko & Lindquist, Merrillville, for plaintiffs-appellants.

James E. Schreiner, George E. Bloom, Travis, Tinkham & Schreiner, Hammond, Orville W. Nichols, Knox, William S. Spangler, Gary, for defendant-appellee.

HOFFMAN, Judge.

Marjorie Cummings, as Administratrix of the Estate of Lloyd Cummings, and Janet Sue Cook, as Administratrix of the Estate of James Arnold Cook, brought an action for the wrongful death of their respective husbands against Hoosier Marine Properties, Inc. (Hoosier Marine) and Woodruff and Sons, Inc. (Woodruff). After an entry of judgment on the evidence, Cummings and Cook perfected this appeal in an attempt to have the question of Hoosier Marine's alleged negligence determined by a jury notwithstanding its defense that the decedents' employer was hired as an independent contractor.

The issues raised on appeal concern whether there was sufficient evidence for the jury to determine the negligence of Hoosier Marine on theories of its duty to:

a) control the excavation of sewer trenches pursuant to its contract to avoid the cave-in which resulted in the accident to the decedents;

b) maintain its property in a condition sufficiently safe so as to avoid injury to a business invitee working in an unshored trench;

c) accept vicarious liability for its effort to contract independently for the performance of inherently or intrinsically dangerous work;

d) accept vicarious liability for its failure to take due precaution to avoid harm when the act to be performed would probably cause injury;

e) accept vicarious liability for the doing by its independent contractor of an illegal act; and

f) accept vicarious liability for a duty imposed upon it by the terms of its contract.

The record reveals the following facts most favorable to appellants:

Hoosier Marine began the development of a subdivision on its land in Porter County, Indiana, in November of 1966. The project involved the construction of home sites and country club facilities which together would be known as the 'Lakes of the Four Seasons.' In the furtherance of its development Hoosier Marine retained the engineering services of Henry V. Steeg and Associates, Inc. (Steeg) to prepare plans and specifications and act as supervisors of the construction of a water and sewer system. Steeg prepared the plans and specifications and thereafter Hoosier Marine, through its vice-president Werner Robert Heimann accepted bids for construction.

Pursuant to awarding the bids in 1968, Hoosier Marine entered into a contract for the completion of part of the water and sewer system with E. R. Knapp & Sons, Inc. (Knapp). Knapp's contract with Hoosier Marine incorporated by reference the plans and specifications prepared by Steeg.

Knapp thereafter entered into a subcontract with Woodruff for the digging of trenches and the installation of sewer tile, reserving for itself the completion of water mains. At no time did Hoosier Marine have a contract with Woodruff.

The contract between the parties contained provisions requiring that proper regard be given to the quality of materials and workmanship, the timeliness of completion and the implementation of safety precautions. In general terms the specifications provided that:

a) The water mains and sewer lines required for the project would be built under the supervision of Hoosier Marrine's consulting engineer Steeg and Associates, Inc.;

b) All construction work was to comply with local ordinances, rules, regulations and statutes of the State of Indiana and all safety provisions of each of those laws applicable to building and construction would be observed;

c) The consulting engineer Steeg had the right to order safety precautions, and where the contractor had failed to conform to such measures, Steeg could put the work into such condition that it would in all respects be safe;

d) Sheeting and bracing were to be installed in order to firmly support the excavation and protect the surrounding land and structures;

e) The execution of each aspect of the work was required to conform with the engineer's specifications as to line, grade and quality; and

f) Work improperly performed or performed without proper regard to the requirements of the contract would allow the engineers to correct such deficiencies at the contractor's expense. Upon repeated failure to conform, Hoosier Marine had the right to terminate the contract.

In the spring of 1968 Woodruff began the sewer construction. Trenching and laying progressed through the summer until approximately five or six miles of sewer had been laid by August 23, 1968. During this time Woodruff used no sheeting or shoring to support the walls of the excavations nor was he called to task by either Hoosier Marine or Steeg for having failed to do so. On November 23, 1968, within a day of having completed the project, employees of Woodruff were working in a sewer trench approximately eighteen feet deep and five feet wide with sheer sides. Roland Phillips, one of the surviving employees of Woodruff, testified that he requested the backhoe operator to move some sand into the ditch 'to bed the pipe.' Apparently while the vehicle proceeded to procure the material Phillips saw the side of the trench move. He jumped as high as he could with his 'arms up in the air' and 'hollered at my buddy to run.' However, the cave-in buried Phillips and the fellow employee over their heads.

Decedents Cummings and Cook were employed by Knapp in another area of the development constructing water mains. Upon hearing calls for help they brought shovels and with others began digging the victims from the trench. While working at this task a remaining portion of the bank caved in covering the rescuers as well as the original victims. Some of the victims were recovered safely but Cummings and Cook, the rescuing employees from Knapp, were fatally crushed.

Hoosier Marine's vice-president Werner Heimann was not present when the cave-in occurred. He did not witness any of the circumstances surrounding the work site prior to the deaths and he was unaware of any relevant attributes regarding the safe condition of the trenches.

Thereafter appellants individually filed complaints against Hoosier Marine and Woodruff for the wrongful death of their husbands. The two causes of action were consolidated for trial and proceeded on allegations that Hoosier Marine and Woodruff were negligent in their construction of the trench which caved in on the decedents. The case was tried before a jury and at the close of plaintiffs' evidence and prior to the submission of evidence on behalf of the defendants, Hoosier Marine moved for a judgment on the evidence pursuant to Ind. Rules of Procedure, Trial Rule 50. The trial court granted the motion and entered a directed verdict against Cummings and Cook. Upon the subsequent overruling of their motion to correct errors this appeal was perfected against Hoosier Marine.

The issue raised by appellants concerns whether the trial court erred in rendering its judgment on the evidence when it is submitted, as here, that there was sufficient evidence presented to create an issue of fact as to whether Hoosier Marine owed a duty to the decedents, whether it was negligent in its duty and whether decedents' deaths were proximately caused by such negligence.

Trial Rule 50, supra, provides, in pertinent part:

'(A) Judgment on the evidence--How raised--Effect. Where all or some of the issues in a case tried before a jury or an advisory jury are not supported by sufficient evidence or a verdict thereon is clearly erroneous as contrary to the evidence because the evidence is insufficient to support it, the court shall withdraw such issues from the jury and enter judgment thereon or shall enter judgment thereon notwithstanding a verdict.'

The amount of evidence required of the plaintiff to avoid a judgment on the evidence has been determined by our Supreme Court in Hendrix v. Harbelis (1967), 248 Ind. 619, 230 N.E.2d 315, under the prior rule. At 623 of 248 Ind., at 318 of 230 N.E.2d, the court held:

'It is only where there is a total absence of evidence or legitimate inferences in favor of plaintiff upon the issues, or where the evidence is without conflict and is susceptible of but one inference and that inference in favor of the defendant, that the court may give a peremptory instruction, as the defendant-appellant herein requested.'

This standard was carried forward under the present Trial Rule 50, supra, in Mamula v. Ford Motor Co. (1971), at 182 of 150 Ind.App. 179, at 851--52 of 275 N.E.2d 849 (transfer denied), where it is stated:

'The rule is often stated to be that in a jury trial a court should not direct a verdict for a defendant at the close of a plaintiff's evidence unless there is a total absence of evidence or reasonable inference on at least one essential element of a plaintiff's case. (Citations omitted.)

'When passing on a motion for a directed verdict, the court is merely called on to determine if there is some evidence of negligence on the part of the defendant which the jury is entitled to consider. Jones v. Furlong (1951), 121 Ind.App. 279, 97 N.E.2d 369. Where the evidence is such that the minds of reasonable men might differ, or if the determination of negligence depends on conflicting evidence, then the question is for the jury.'

Since the grant of a motion for a directed verdict deprives the plaintiffs of a determination of the facts by a jury it should not be lightly...

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