Day & Sachs v. Travelers' Ins. Co., 6 Div. 816.

Citation223 Ala. 558,137 So. 409
Decision Date08 October 1931
Docket Number6 Div. 816.
CourtSupreme Court of Alabama
PartiesDAY & SACHS v. TRAVELERS' INS. CO.

Rehearing Denied Nov. 19, 1931.

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Action by the Travelers' Insurance Company against Day & Sachs. From a judgment for plaintiff, defendants appeal.

Affirmed.

In action for reimbursement by subcontractor's compensation insurer against general contractor, whether latter retained control of work and subcontractor's employees, and whether collapse of bar joists resulted from its negligence held for jury. Code 1940, Tit. 26, § 311.

Count 5 of the complaint alleges that defendants were engaged as contractors in charge in the construction of the building in question; that defendants were then and there working under the terms of the Alabama Workmen's Compensation Act (Code 1923, § 7534); that Buchanan Construction Company was employed by defendants as subcontractors under direction supervision, authority, and control of defendants, and were engaged in construction of said building or a portion thereof, and was also working under the terms and provision of said Workmen's Compensation Act; that one Hubbard was employed as a laborer by Buchanan Construction Company in and about the construction of said building, and was a common laborer knowing little, if anything, about steel or other construction work; that on the date in question, while said Hubbard was sitting on or near a piece of stone in the southeast corner of said building, working, where he had a right to be, said southeast corner of the building, or a portion thereof, gave away and fell, causing him to fall through and a large stone to roll or strike against or upon him, so that he was injured and died therefrom; that such injury and death was an accident within the Compensation Act and arose out of and in course of Hubbard's employment; that plaintiff was insurance carrier for Buchanan Construction Company, and paid certain specified items of allowance to Hubbard's dependents, and medical and burial expenses, and agreed to pay specified weekly items of compensation.

It further avers that: "The proximate cause of the injury and death of said Buck Hubbard was negligence of the defendants, or of their agents or agent, servants or servant, while acting within the line and scope of their or his employment as such, in allowing or causing said southeast corner of said building, or a portion thereof, to fall and give away, so that as a proximate consequence thereof said Buck Hubbard fell and a large stone struck or rolled against or upon him, proximately causing his injury and death."

Count 6 is the same as count 5, with the following averment substituted for the last paragraph of count 5 just above quoted: "The proximate cause of the injury and death of said Buck Hubbard was the willful, wanton, or intentional conduct of defendants' agents or agent, servants or servant, while acting within the line and scope of their or his employment as such, in that they or he wantonly, willfully, or intentionally caused or allowed said southeast corner of said building, or a portion thereof to fall and give way, so that as a proximate consequence thereof said Buck Hubbard was caused or allowed to fall and a large stone to strike or roll against or upon him, proximately causing his injury and death."

The demurrer to the complaint takes the following objections: From aught appearing the defendants were under no duty to keep a reasonably safe place for the employees of Buchanan Construction Company. For aught that appears said unsafe condition was caused by Buchanan Construction Company. The duty alleged is greater than that imposed by law.

The following charges were refused to defendant:

"12. I charge you Gentlemen of the jury, that the duty of remedying conditions made dangerous in the carrying on of the work of Buchanan Construction Company rested on Buchanan Construction Company and not on defendants in this case."
"13. If you are reasonably satisfied from the evidence in this case that the joists were suitable and safe for the purposes for which they were designed and that the employees of Buchanan Construction Company placed these joists to other uses for which they were not designed and as a proximate consequence of this action on the part of the employees of the Buchanan Construction Company Mr.

Hubbard met his death, then you must return a verdict for the defendants.

"17. If you are reasonably satisfied from the evidence that the bar joists were sufficiently secure for the purposes intended for them, then I charge you, that this defendant is not liable for any lack of sufficiency for the purpose of trucking stone over them.

"20. If you believe the evidence, Day & Sachs were under no obligation to have the bar joists sufficiently secure to serve as a means of trucking stone from one place to another.

Nesbit & Sadler, of Birmingham, for appellants.

Barber & Blake, of Birmingham, for appellee.

GARDNER J.

One Hubbard was a laborer in the employ of the Buchanan Construction Company, a subcontractor under Day & Sachs, who were the general contractors for the erection of the commerce building at the State University. While engaged in the line of his work on the third floor of the building in course of construction, and on the southeast corner of the top of the building, a number of bar joists collapsed, causing Hubbard to fall to his death. Both Day and Sachs, the general contractors, and the Buchanan Construction Company were operating under the Workmen's Compensation Statute, and the appellee, Travelers' Insurance Company, was the insurance carrier for said Buchanan Construction Company. Said carrier paid to the dependents of said Hubbard compensation due them, and instituted this suit against Day & Sachs for reimbursement therefor, upon the theory that it was their negligence which constituted the proximate cause of Hubbard's death.

The right of subrogation is recognized in section 7586, Code 1923, and that the suit was properly brought in accordance with this statutory provision is not here questioned. Rasmussen v. George Benz & Sons, 168 Minn. 319, 210 N.W. 75, 212 N.W. 20.

Upon the trial of the cause, there was verdict for the plaintiff, and recovery had for the sum sufficient for reimbursement, with attorneys' fee added as provided by the above-noted statute, and from this judgment defendants appeal.

Upon the merits of the case, defendants insist they were entitled to the affirmative charge upon the theory that Hubbard was an employee of an independent contractor, to whom they owed no duty to be watchful of his safety, there being no inherent danger in the premises existing when the subcontractor proceeded with the work, citing among other authorities Connors-Weyman Steel Co. v. Kilgore, 189 Ala. 643 66...

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