Forcum-James, Inc. v. Johnson
| Decision Date | 12 March 1945 |
| Docket Number | 17308. |
| Citation | 59 N.E.2d 730,115 Ind.App. 655 |
| Parties | FORCUM-JAMES, Inc., v. JOHNSON. |
| Court | Indiana Appellate Court |
Appeal from Clark Circuit Court; James L. Bottorff, Judge.
Action by Seth P. Johnson, general contractor's employee against Forcum-James, Incorporated, a subcontractor, for injuries allegedly caused by negligence of defendant. Verdict and judgment for plaintiff, in the sum of $10,000, and defendant appeals.
Affirmed.
Jonas G. Howard and Ellis Deibel, both of Jeffersonville, for appellant.
Fox & Fox, of Jeffersonville, and Allen, McElwain, Dinning & Clarke, of Louisville, Ky., for appellee.
This is an action arising out of alleged negligence of a sub-contractor causing personal injuries to an employee of its general contractor. Verdict and judgment was for the appellee in the sum of $10,000.
Appellee brought the action by complaint which alleged that on June 3 1941, he was engaged in performing his duties as shift operator for E. I. du Pont de Nemours & Company, the general contractor, in a building at the war production plant in Clark County, Indiana, commonly known as the Indiana Ordnance Works. That appellant, as a sub-contractor of appellee's employer, was engaged in certain excavation work, in the course of which it blasted rock with an explosive of such quantity that its force might reasonably be expected to blow rock a distance of 150 feet. That the building in which appellee was working was well within 150 feet and was so noisy that any warning signal that was given could not be heard. That in addition to the duties upon the appellant by reason of these facts, appellant was also required by the rules, directions and orders of the du Pont Company to give adequate warning of a blast by whistle system and also inspect and see that all persons within the danger zone were removed. That appellant negligently failed to warn appellee or give him any notice that an explosion was to take place but proceeded to set off the blast. That a thirty-five pound rock was blown into the air; that it descended through the roof of the building in which appellee was working, struck him on the head and caused him serious injury.
Appellant demurred to the complaint on the theory that the complaint shows that the du Pont Company retained such supervision and control over the manner and way of doing the work that appellant became an agent or employee rather than an independent contractor, and was therefore absolved from liability. We need not decide whether appellant would be absolved from liability if the alleged facts show it to be something other than an independent contractor, for no such facts are to be found in the complaint. The only facts alleged which could remotely bear on the question are that du Pont Company required appellant by 'rules, directions and orders' to give certain warnings before blasting operations. This does not show supervision and control over the manner and way of doing the work.
Under its motion for a new trial appellant raises the same question on the facts as shown by the evidence. But there is no evidence of the retention of supervision and control by the prime contractor. Appellant points out evidence that du Pont Company had certain safety rules which it was bound to follow; that it had to consult du Pont Company as to the time when a blast could be exploded; that du Pont loaned some of its employees to appellant to work under the supervision of appellant's powder foreman, and du Pont Company furnished an engineer to inspect the blast before it was exploded. But this is no evidence of retention of control and supervision of the manner and way of doing the work. On the contrary, the evidence clearly shows that at all times the blasting operation and clearing of the danger zone was under the complete and exclusive control of appellant through its powder foreman....
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