DeMoss v. Darwin T. Lynner Const. Co.

• Decision Date: 11 June 1968
• Docket Number: No. 52818,52818
• Citation: 159 N.W.2d 463
• Parties: Loren Joseph DeMOSS, by his Next Friend and Father, Daniel DeMoss, and Daniel DeMoss, Appellees, v. DARWIN T. LYNNER CONSTRUCTION CO., Inc., and Donald R. Rife, Appellants.
• Court: Iowa Supreme Court

Page 463

159 N.W.2d 463

Loren Joseph DeMOSS, by his Next Friend and Father, Daniel DeMoss, and Daniel DeMoss, Appellees, v. DARWIN T. LYNNER CONSTRUCTION CO., Inc., and Donald R. Rife, Appellants.

No. 52818.

Supreme Court of Iowa.

June 11, 1968.

Roland D. Peddicord, Des Moines, for appellant, Donald R. Rife.

Leo J. Tapscott, Des Moines, for appellees.

LeGRAND, Justice.

This is an appeal from a judgment in favor of plaintiff for injuries sustained when a quantity of dry-wall material fell on him. The accident occurred in a house being built for plaintiff's brother. Suit was brought against the general contractor, Darwin T. Lynner Construction Company, Inc., and Donald R. Rife, dry-wall subcontractor. At the close of plaintiff's evidence a motion for a directed verdict on behalf of the general contractor was sustained and the cause dismissed as to that defendant. The only remaining defendant, Donald R. Rife, is the appellant here.

The action was brought for plaintiff, a 14-year-old minor, by his father as next friend. The father also sued to recover on his own behalf medical expenses which he was compelled to pay because of injuries to his son. Since the father's claim presents no separate issue, all references here to plaintiff refer to Loren Joseph DeMoss, the injured minor. They apply equally to the father's claim.

Action was brought in two counts. The first was based on res ipsa loquitur; the second alleged specific acts of negligence. Both were submitted to the jury as is permissible under our holdings. Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 11 A.L.R.2d 1164; Grings v. Great Plains Gas Co., Iowa, 152 N.W.2d 540. A general verdict was returned in favor of plaintiff without a determination as to whether the jury found against defendant under res ipsa loquitur or under one of the specific charges of negligence.

I. We set out first factual situation under which this accident occurred. Plaintiff's older brother, William DeMoss, had entered into a contract with Darwin T. Lynner Construction Company, Inc., by the terms of which that company was to build a house for him at 3721 S.E. 12th Street in Des Moines. Title to the real estate remained in the contractor at the time of the accident, although William DeMoss was then the contract purchaser thereof. The general contractor entered into various subcontracts for part of the construction work. One of these was with defendant Rife for dry-wall installation. Dry-wall is a type of prefabricated plasterboard used in place of plastered walls. The general contractor also entered into a subcontract with William DeMoss for both inside and outside painting of the house. The general contractor testified that when the person for whom the house is being built contracts to do part of the work himself in order to reduce the ultimate cost, it is the general practice to enter into the same form of subcontract with him as in any other case. That practice was followed here.

As the construction progressed, the general contractor coordinated the work so that the various subcontractors were alerted to the time the house would be ready for them. Usually several days' notice was given. Upon receiving such notification, defendant ordered the required material from Midwest Hardware Flooring and Plywood Company on September 22, 1965. It was delivered to the job site on September 24, 1965. Delivery was made by a firm of independent haulers, who were employees neither of the general contractor or the subcontractor.

The dry-wall material was delivered in 4 12-foot sheets taped together in pairs. There were approximately ten such pairs or a total of 20 sheets. Each sheet weighed approximately 90 pounds. The sheets were stacked on an unfinished wall in the house with one 12-foot side resting on the floor. The testimony varies as to the angle at which the material was stacked against the wall. One witness described it as almost 'straight up and down'; others estimated the angle which the sheets made at the point they rested on the floor to be anywhere from 10 degrees to 45 degrees.

Defendant intended to apply the material the Monday following its delivery. He did not tell the supplier how to store the material, nor did the supplier give any such instructions to the haulers.

On Sunday, September 26, 1965, William DeMoss went to the house to do some painting. He took with him plaintiff and a still younger brother, Mike, to help. Plaintiff was then 14 and Mike was 12. At the time of the accident they had been at the house about half an hour. No one else was there. William DeMoss was outside the house. The two youngsters were inside alone. The testimony is undisputed that neither boy had touched the material, nor had William DeMoss. Suddenly Mike yelled a warning to plaintiff that the stack was falling. Plaintiff, however, was unable to escape and was pinned to the floor by the entire weight of the material, incurring injuries for which he now seeks recovery.

Defendant asserts the following errors: (1) The doctrine of res ipsa loquitur should not have been submitted to the jury; (2) The evidence was insufficient to warrant a verdict on either allegation of specific negligence; (3) The trial court's instructions were prejudicially erroneous with reference to custom and usage, plaintiff's negligence as affecting his right to recover, and loss of earning capacity.

II. Defendant's first assignment of error challenges the application of res ipsa loquitur to the facts existing here. Res ipsa loquitur is a well established doctrine permitting submission of a negligence case to a jury without proof of specific acts of negligence under certain circumstances. The instrumentality causing the injury must have been under the exclusive control and management of the defendant; and the accident must be one that would not in the ordinary course of events have occurred without negligence on the part of the one having such exclusive control. The underlying reason for the application of res ipsa loquitur is sometimes said to be that defendant has vital evidence, or the means of acquiring it, which is not available to plaintiff. We refer to this more fully later in this division.

In our many decisions touching upon this subject we have firmly committed ourselves to requiring satisfactory proof of these foundation facts before applying res ipsa loquitur to a given situation. In Eaves v. City of Ottumwa, 240 Iowa 956, 970, 38 N.W.2d 761, 769, 11 A.L.R.2d 1164, we said, 'Our decisions involving the res ipsa rule have uniformly stressed the necessity of defendant's complete and exclusive control of the instrumentality that cause the injury.' In Highland Golf Club of Iowa Falls, Iowa v. Sinclair Refining Company, Northern District of Iowa, 59 F.Supp. 911, at page 915 appears this statement, 'The Iowa Supreme Court has repeatedly referred to the need and necessity of the defendant having exclusive control of all the instrumentalities causing the damages or injury to the plaintiff as a pre-requisite to the application of res ipsa loquitur. * * *' Similar statements may be found in Savery v. Kist, 234 Iowa 98, 103, 11 N.W.2d 23, 25; Whetstine v. Moravec, 228 Iowa 352, 365, 291 N.W. 425, 433 and citations; Peterson v. DeLuxe Cab Company, 225 Iowa 809, 811, 281 N.W. 737, 738; Welch v. Greenberg, 235 Iowa 159, 168, 14 N.W.2d 266, 270; Augspurger v. Western Auto Supply Co., 257 Iowa 777, 781, 134 N.W.2d 913, 915.

In Mogensen v. Hicks, 253 Iowa 139, 110 N.W.2d 563, we held this doctrine should be used sparingly--only when the essential components are present and when common experience indicates the accident is one which would not ordinarily occur in the absence of negligence. This same caution is pointed out in Eaves v. City of Ottumwa, supra, at page 969 of the Iowa Reports, 38 N.W.2d 761, and in Dorcas v. Aikman, 259 Iowa 63, 143 N.W.2d 396, 402. See also 65A C.J.S. Negligence § 220.6, page 537.

In the case at bar we find the element of control which is so essential to this doctrine to be completely absent. The evidence discloses only that defendant owned the instrumentality which caused the injury. Although ownership ordinarily carries with it the right to control, there was no control over the material here. We cannot isolate the dry-wall itself from the attendant circumstances under which the accident occurred. 65A C.J.S. Negligence § 220.2, page 512; Hart v. Emery, Bird, Thayer Dry Goods Co., 233 Mo.App. 312, 118 S.W.2d 509, 511. The sheets were stored by an independent contractor in a house then under construction. Many others had rights to the use of the premises equal or superior to defendant's. Defendant had no right to restrict the general contractor, other subcontractors or workmen from going to the construction job. Defendant had no knowledge as to what went on at the premises between the date of delivery and the date of the accident. Were other subcontractors there? Did someone move the material to facilitate his own work? Was the general contractor, or his agent, there to make one of the periodical inspections about which the evidence talks? In what way could defendant control these and other matters which might arise? If he had insisted no one go on the premises, he would have been demanding something to which he was not entitled. This is perhaps best illustrated by the fact that plaintiff and his two brothers were rightfully there without knowledge or permission of defendant. How many others were similarly there during the two-day interval between delivery and injury? Under such circumstances, we cannot attribute to defendant the exclusive control over the material in question which would justify application of res ipsa loquitur.

This in no way conflicts with Thompson v. Burke Engineering Sales Company, 252 Iowa 146, 106 N.W.2d 351, 84 A.L.R.2d 689, where we held exclusive control at the time of injury was not essential if such control existed at the time of the alleged...