Davis v. Henderlong Lumber Company, Civ. No. 2955.

• Decision Date: 09 July 1963
• Docket Number: Civ. No. 2955.
• Citation: 221 F. Supp. 129
• Parties: Robert E. DAVIS, Plaintiff, v. HENDERLONG LUMBER COMPANY, a Corporation, Arnold Henderlong, and Aafco Heating Company, Inc., a Corporation, Defendants.
• Court: U.S. District Court — Northern District of Indiana

221 F. Supp. 129

Robert E. DAVIS, Plaintiff, v. HENDERLONG LUMBER COMPANY, a Corporation, Arnold Henderlong, and Aafco Heating Company, Inc., a Corporation, Defendants.

Civ. No. 2955.

United States District Court N. D. Indiana, Hammond Division.

July 9, 1963.

Sherwin J. Malkin and Seymour Velk, Chicago, Ill., for plaintiff.

Daniel F. Kelly, Tinkham, Beckman, Kelly & Singleton, Hammond, Ind., for the defendants Henderlong Lumber Co., Inc. and Arnold Henderlong.

James J. Richards and George H. Dragus, Hammond, Ind., for defendant Aafco Heating Co., Inc.

BEAMER, District Judge.

This suit was originally filed December 9, 1960, against Henderlong Lumber Company and Arnold Henderlong. Plaintiff subsequently filed an amended complaint in two counts, adding Aafco Heating Company as co-defendant.

The amended complaint alleges that plaintiff was formerly employed by the Stanray Corporation as a chemist. While so employed, he sustained injuries on April 7, 1960, from the inhalation of toxic fumes which occurred because of the allegedly improper and inadequate installation of a chemical fume hood and exhaust apparatus in a newly-constructed chemical laboratory. Henderlong Lumber Company and Arnold Henderlong were under contract with Stanray to construct the laboratory, and Henderlong subsequently hired Aafco Heating Company as subcontractor to install the chemical fume hood and exhaust apparatus.

Plaintiff alleges in the complaint that defendants knew, or in the exercise of reasonable care, should have known that said chemical fume hood and exhaust apparatus was insufficient and inadequate for the use required of it, and would cause injury to persons working in and around the vicinity thereof. It is alleged that defendants disregarded their duty of due care and caused the apparatus to be constructed and installed in such a manner as to be insufficient and inadequate for the use required of it.

It is undisputed that the installation of the chemical fume hood and exhaust apparatus was completed and accepted by Stanray Corporation prior to the date of the injury. It is also undisputed that the Stanray Corporation actually took possession and occupied the laboratory prior to the date of the alleged injury to Plaintiff.

Upon the filing of the motions for summary judgments, defendants asserted that all work pertaining to the construction and installation of the exhaust apparatus was done according to the plans and specifications furnished by the contractee, Stanray Corporation. Therefore, argue defendants, they cannot be held liable for injuries to third persons where the work performed complied with the plans and specifications of Plaintiff's employer, and was accepted by Stanray prior to the injury.

Plaintiff, in his briefs on file, contends that one Douglas F. Haley, a licensed architect, hired by Henderlong Lumber Co., prepared the drawings for the exhaust apparatus; that a change was made from the original plans in the construction and installation of the hood and exhaust in that the hood was enlarged and the exhaust moved to another wall so that it was no longer in a vertical position over the hood; that this change was made by Aafco Heating Co., without prior approval of either Henderlong Lumber Co., or the architect who prepared the plans and blueprints; that the effect of this change was to markedly reduce the capacity of the exhaust as originally designed and provided for in the plans; that Aafco Heating Company made the variance in plans on the verbal instructions of one Theodore J. Pilet, an employee of Stanray Corporation.

In short, Plaintiff takes the position that factual issues are posed which are not proper for summary judgment since Pilet had no authority to order any changes and Defendants had no right to rely upon verbal instructions contravening such plans. Plaintiff argues that as experienced contractors, Defendants knew the nature and purpose of the apparatus which they were constructing and knew or should have known that such apparatus as constructed was wholly insufficient to exhaust the toxic chemical fumes.

The uncontradicted facts as shown by the depositions on file negate Plaintiff's conclusions and unequivocally establish that:

1. Theodore J. Pilet is employed by Stanray Corporation as a chemical engineer with the title of research manager.

2. As research manager, Pilet was in charge of the construction of the chemical laboratory for Stanray Corporation.

3. Pilet provided the building layout to Henderlong Lumber Co., who had detailed architectural prints drafted for the shell of the building.

4. Pilet prepared the plans and specifications for the chemical fume hood and exhaust apparatus, then had Douglas Haley, a licensed architect hired by Stanray Corporation merely recopy the plans since the signature of an architect was needed on the plans.

5. All matters of installation were referred to Aafco Heating Co.

6. Pilet specifically directed the modification of the vertical duct and relocation of the chemical fume hood from the original submitted specifications during the installation of the apparatus.

7. The specifications for the apparatus did not amplify or specifically detail out the purpose which the exhaust fan was to serve.

8. Pilet never informed either Henderlong Lumber Company, Arnold Henderlong, or Aafco Heating Co. of the purpose of the hood and exhaust.

9. Stanray Corporation expected the contractors to install the equipment according to the specifications submitted by Pilet.

10. Pilet specified the size and capacity of the exhaust fan to be used in the hood vent.

11. The chemical fume hood and exhaust apparatus was completed in accordance with the specifications submitted by Pilet.

12. The contractors were not instructed or expected to test the unit to determine if it was effective in exhausting noxious materials.

13. The contractors were never informed that the apparatus was constructed to minimize the egress of noxious materials into the laboratory.

14. The laboratory and chemical fume hood and exhaust apparatus were completed and accepted by Stanray Corporation on January 15, 1960.

15. Plaintiff, as laboratory manager, was assigned the duty by Stanray Corporation of checking out the equipment in the laboratory, including the exhaust hood and fan, to determine its effectiveness.

16. Patrick Murphy, the foreman in charge of installation for Aafco Heating Company, had a formal education consisting of a high school diploma and dental technician school. Mr. Murphy has 12 years' experience as a sheet metal worker, his primary occupation, with no previous experience in the installation of equipment in chemical laboratories.

17. Arnold Henderlong, President of Henderlong Lumber Company, is engaged in the retail lumber business and as a general contractor. Mr. Henderlong had two and a half years of general business courses in college with 22 years' experience in general contracting and supervision of construction projects, but no experience in the manufacture or use of chemicals.

In brief, the undisputed facts show that Defendants constructed the laboratory and installed the exhaust apparatus according to the plans and specifications furnished by Pilet, the agent of Stanray Corporation, and the work performed was accepted as having complied with said plans. Our next inquiry is whether or not Defendants are entitled to summary judgment as a matter of law under the applicable rules of liability.

Defendants rely upon Travis v. Rochester Bridge Co., 188 Ind. 79, 122 N.E. 1 (1919), as controlling under the facts involved in the instant case. However, Plaintiff asserts that the Travis case has been overruled by Holland Furnace Co. v. Nauracaj, 105 Ind.App. 574, 14 N.E.2d 339 (1938), and Holland recognized as the modern law in Indiana by Elliott v. General Motors Corporation, 296 F.2d 125 (CA7, 1961); and McCloud v. Leavitt Corporation, 79 F.Supp. 286 (E.D.Ill.1948).

In Travis, the Plaintiff was killed by the falling of a bridge constructed by defendant. The plans and specifications for the bridge were submitted by the County, and the contractor constructed accordingly. The bridge collapsed five years later. Said the Indiana Supreme Court:

"Many cases have been cited by appellant involving the liability of manufacturers of machinery, conveyances, and other articles sold in the regular course of trade, for injuries resulting to persons not parties to the contract on account of defects in the construction of the article sold. The relations involved in such cases are analogous to those in the case at bar, but they are not identical; and the rules of law which apply, while similar in many respects, are not the same. (Emphasis supplied by Court)

"* * * In the class of cases to which the one at bar belongs, the work is generally done by the contractor in accordance with plans furnished by the party letting the contract or under his direction and supervision, and the work is subject to inspection before acceptance. In the other class of cases to which reference is made, the machinery or other article manufactured is made according to the plans of the manufacturer and under his direction and subject to his inspection before sale. The differences pointed out between the classes of cases under consideration furnishes a reason for holding that the liability of an independent contractor toward third persons, not parties to the contract, terminates with the completion of the work and the acceptance of the contract, while a similar rule, but somewhat modified, applied to manufacturers selling in the ordinary course of trade.

"As affecting the liability of a contractor, the acceptance of the work by the other party to the contract operates as the intervention of an independent human agency which breaks the chain of causation so as to preclude a third party from asserting or relying on any duty on the part of the contractor to use care for his safety in the construction of the work." At 122

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