Hare v. Federal Compress and Warehouse Company

• Decision Date: 14 May 1973
• Docket Number: No. EC 72-73-S.,EC 72-73-S.
• Citation: 359 F. Supp. 214
• Parties: Eleanor HARE, widow of John Hare, Deceased, Plaintiff, v. FEDERAL COMPRESS AND WAREHOUSE COMPANY and Russell Ozanne, Jr., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

359 F. Supp. 214

Eleanor HARE, widow of John Hare, Deceased, Plaintiff, v. FEDERAL COMPRESS AND WAREHOUSE COMPANY and Russell Ozanne, Jr., Defendants.

No. EC 72-73-S.

United States District Court, N. D. Mississippi, E. D.

May 14, 1973.

John L. Long, William S. Lawson, Tupelo, Miss., for plaintiff.

Robert G. Krohn, Price & Krohn, Corinth, Miss., W. P. Mitchell, Mitchell, Rogers & Eskridge, Tupelo, Miss., for defendants.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

This action is before the court on separate motions for summary judgment filed by defendants Federal Compress and Warehouse Company (Federal) and Russell Ozanne, Jr. (Ozanne). The motions have been submitted to the court for decision on briefs without oral argument.

The court has considered the affidavits and depositions on file, as well as memoranda of the parties and the entire record. The facts giving rise to the action are without substantial dispute.

The action is one for damages proximately resulting from the alleged wrongful death of John Hare at Tupelo, Mississippi on January 25, 1972. At the time of the occurrence giving rise to Hare's death, he was engaged, as an employee of Central Electric and Machinery Company (Central), in the excavation of a ditch or trench into which was to be placed a sewer line connecting the rest rooms and other facilities of Federal with the trunk or main sewer line of the city in a street approximately six hundred feet from Federal's property. The line passed under a railroad spur leading from the railroad's main line to the warehouse of Federal and followed generally a road or passageway from the street to the warehouse.

The ditch in which Hare was working had been excavated to a depth of approximately fifteen feet. While Hare was in the ditch engaged in the performance of his duties, the side or sides of the ditch caved in, burying Hare under the dirt and smothering him to death.

Plaintiff, widow of Hare, filed the action sub judice originally against Federal and J. E. Staub and Company (Staub). The court sustained Staub's motion for summary judgment when it was made known to the court that Staub was not in any way connected with the construction of the sewer line. Thereafter, plaintiff amended the complaint to add Ozanne as a party defendant.

The uncontradicted facts, as reflected by the affidavits, depositions and admissions on file, reflect that Federal contracted with Ozanne on March 17, 1971 to construct certain improvements to Federal's Tupelo, Mississippi property. The contract is in writing and plaintiff concedes in her memorandum submitted to the court that, as a result of the contractual relationship of the parties, Ozanne occupied the legal status of an "independent contractor" to Federal. Ozanne contracted to perform the work called for by Federal's plans and specifications for a fixed fee. Federal looked to Ozanne for the completed project and did not retain any right to direct, nor did Federal, at any time during the work, direct the manner or means by which the work was to be accomplished. The work which involved the construction of the sewer line was the subject of a change order to the original contract.

Ozanne was not equipped, nor did he have knowledge of, or experience necessary to undertake the installation of the sewer line. Ozanne, therefore, subcontracted the work to Central, a firm experienced in this field. The specifications for the sewer line prepared by Federal consisted of design drawings for the sewer line. The drawings and designs prepared by Federal did not contain any engineering data or specifications, except for a notation on a plot plan that the "San. sewer line to be 8" @ 0.4% slope. Varify sic all distances to street". The sewer line was drawn on the plot plan, to indicate the direction of the line and its location with reference to existing structures.

Before entering into the subcontract with Central, Ozanne furnished Central with the design plan furnished him by Federal. Before commencing the actual construction of the line, Central independently acquired the engineering data necessary for the construction of the line and prepared the engineering drawings and specifications for the performance of the work. Neither Federal or Ozanne had any connection with the preparation of the drawings and specifications or the assembling of data for the preparation thereof, except the designation of the location, size, and slope of the line on the original plot plan. As has been noted, Central was an experienced operator in the construction of sewer lines, and the details of the work and the manner in which it was to be performed were left to its discretion by the parties.

The plaintiff contends that Hare was not furnished with a reasonably safe place within which to perform his work, in that the banks of the ditch were not braced or shored at the place where Hare was working to protect him against the cave-in. Defendants are charged with negligence which proximately caused or contributed to the incident and to Hare's death in that they owed Hare the duty to supervise, regulate and inspect, at regular intervals, the work as it progressed; to cause the bracing or shoring of the ditch at the job site; to comply with the provision of the Safety and Health Regulations for Construction pertaining to excavation, trenching and shoring as established by the United States Department of Labor, Bureau of Labor Standards, 29 CFR, Part 1518.16, promulgated pursuant to the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 327 et seq. (a law affecting certain public contracts) which were made applicable to employers in certain private works by the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq.; and to properly operate, maintain, construct, design, excavate, install and supervise the installation of, the said work; all of which duties and obligations were breached by Federal and Ozanne, proximately resulting in the death of Hare.

This case is Erie bound and is controlled by Mississippi law.

The action is prosecuted by plaintiff as the widow of the said deceased for and on behalf of the beneficiaries named in Mississippi's Wrongful Death Statute, namely, the plaintiffs and three minor children of said deceased. Plaintiff is authorized by the statute to bring this action. Miss.Code Ann. § 1453 (Supp. 1972).

Plaintiff concedes that Hare was an employee of Central and was subject to exclusive control and supervision of Central. Plaintiff does not contend that Hare was an employee of either Federal or Ozanne, or that either of them owed Hare any duty by virtue of a master-servant, employer-employee, or principal-agent relationship. Plaintiff also recognizes that Mississippi has adopted the general rule that the employer of an independent contractor is not liable for the torts of the independent contractor. See, Levine v. Standard Oil Co., Inc. in Kentucky, 249 Miss. 651, 163 So.2d 750 (1964); Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156 (1931); Texas Company v. Mills, 171 Miss. 231, 156 So. 866 (1934); Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (1931); Cook v. Wright, 177 Miss. 644, 171 So. 686 (1937). See, also, Newman v. Sears, Roebuck & Company, 77 N.D. 466, 43 N.W.2d 411, 17 A.L.R.2d 694 (1950); 57 C.J.S. Master and Servant § 584, p. 355 and Sword v. Gulf Oil Corporation, 251 F.2d 829 (5th Cir. 1958) Cert. den. 358 U.S. 824, 79 S.Ct. 41, 3 L.Ed.2d 65.

While conceding that under ordinary circumstances, defendants would not be liable for damages for the death of Hare, plaintiff contends that the facts reflected by the record herein bring the action within a well recognized exception to the general rule, the exception being that the employer of an independent contractor remains liable, regardless of the employer-independent contractual relationship, for failure to protect the servants of the independent contractor against...