Hoosier Cardinal Corp. v. Brizius

• Decision Date: 25 June 1964
• Docket Number: No. 1,No. 19715,19715,1
• Parties: HOOSIER CARDINAL CORPORATION, Appellant, v. Wilbur BRIZIUS, Appellee
• Court: Indiana Appellate Court

Page 481

199 N.E.2d 481

136 Ind.App. 363

HOOSIER CARDINAL CORPORATION, Appellant, v. Wilbur BRIZIUS, Appellee.

No. 19715.

Appellate Court of Indiana, Division No. 1.

June 25, 1964.

Rehearing Denied Aug. 11, 1964.

Bamberger, Foreman, Oswald & Hahn, Evansville, for appellant.

Russell S. Armstrong, Evansville, for appellee.

COOPER, Judge.

This matter comes to us from the Posey Circuit Court wherein the appellee, Wilbur Brizius, brought an action against the appellant, Hoosier Cardinal Corporation, to recover damages for personal injuries alleged to have been caused when the appellee fell through a glass sky-light on top of a paint-spray booth located on the property of said appellant while engaged in removing a conveyor as an employee of Karl Conners of Machinery Transfer Company.

The cause was submitted to a jury which returned a verdict for the appellee, Wilbur Brizius, and against the appellant, Hoosier Cardinal Corporation, upon which the court entered judgment.

The appellant filed its motion for a new trial which was overruled, and the overruling of said motion is assigned as error in this court.

The appellant's second amended complaint charged, in substance, that the appellant was a corporation organized under and by virtue of the laws of the State of Indiana with its principal place of business located at Evansville, Vanderburgh County, Indiana; that on or about the 25th day of June, 1957, it was the owner and in possession and control of a large brick manufacturing-type building located on West Eichel Street in the City of Evansville, State of Indiana; that on said date appellant was in the process of dismantling and removing certain heavy machinery and fixtures from the interior of said building; that the said machinery and fixtures had been previously sold by the appellant to divers purchasers and were being removed by the agents of the various buyers thereof for shipment and transfer to other places; that the appellee herein was an employee of Karl Conner of Machinery Transfer Company, and, at the time he received the injuries complained of, was engaged as such employee in removing a part of the equipment from said building; said equipment being directly over a paint-spray booth; that all manufacturing operations had previously been discontinued by the defendant; that in approximately the center of said building there was located an enclosed paint-spray booth which was approximately twenty (20') feet long by eight (8') feet wide and about fifteen (15') feet high; that at the time and place mentioned therein, the appellee was engaged in removing a certain conveyor from said building, which was located to one side and above said paint-spray booth, and, while so engaged, the appellee found it necessary to step on top of the paint-spray booth in order to move to a different position with respect to his work in removing the conveyor; that in so doing, he fell through the glass sky-light of the said booth to the concrete floor, causing certain personal injuries; that at the time the appellee stepped on top of the booth, he was not aware of the fact that the top was made of glass, but that, on the contrary, the top gave the appearance to the appellee of being strong and of sufficient strength to withstand the weight of his body. Appellee charged appellant in his complaint with failing and neglecting to warn the appellee of the dangerous and unsafe condition of the top of the paint-spray booth, in failing and neglecting to provide suitable warning signs for the benefit of appellee indicating that the top of the paint-spray booth was made of glass and would not support the weight of an individual who might stand on the same; in failing and neglecting to cover the top of the paint-spray booth with a suitable roof strong enough to bear the weight of any workman who would be using the same as a platform in connection with the dismantling of the interior of said building; and in failing and neglecting to post sufficient signs or otherwise notify the appellee that the paint-spray booth was not to be used by workmen as a platform or for any purpose in connection with the dismantling of said machinery and equipment; that as a result of the fall, appellee suffered serious and permanent injuries to his damage in the sum of Seventy-Five Thousand ($75,000.00) Dollars.

Among other specifications, appellant's motion for a new trial challenges the action of the court in refusing to direct a verdict for the appellant.

The record reflects that there is no dispute as to the facts before us. The pertinent evidence in the record favorable to the appellee reveals, in substance, that the appellant, Hoosier Cardinal Corporation, ceased their manufacturing business, and, thereafter, proceeded to sell their machinery located in their plant at Evansville, Indiana. The sale was of an auction type, conducted by auctioneers. The record reveals that the paint-spray booth involved herein was sold to Ward's Body Shop of Conway, Arkansas, and the conveyor system involved herein was sold to the Crown Machinery Company of St. Louis. Under the terms of the sale, it appears that the purchasers of the various items of equipment were required to move the purchased equipment at the purchaser's risk and expense; that one Karl N. Conners of Machinery Transfer Company of Evanston, Illinois, a machinery mover and dismantler, was employed to dismantle and remove a conveyor system known as a 458 webb-chain conveyor which was located on the premises of the Hoosier Cardinal Company; that the conveyor was located approximately four feet from the north side of the paint-spray booth and was perhaps four feet higher than the top of the booth, situated in the building owned by the appellant; that the conveyor was to be removed by the use of ladders and other equipment usually used and furnished by the contractor in dismantling or removing the said machinery, and there was no occasion for any of the employees of the said Karl Conners Company of Machinery Transfer Company to be on top of the paint-spray booth while performing work in removing the said conveyor.

It also appears that Karl Conners of Machinery Transfer Company had not been engaged by Ward's Body Shop to remove the paint-spray booth.

The record discloses that the appellee, Wilbur Brizius, an experienced iron-worker, climbed to the top of the paint-spray booth by the means of two step-ladders and was using the said booth as a working platform in connection with his work of cutting a section of the conveyor system which was being dismantled by the Machinery Transfer Company when he fell through the section of the glass panel located in the roof of said booth. The undisputed evidence conclusively shows that the top of the booth was not constructed for the purpose of constituting a safe working platform and that the appellee had knowledge of the type of structure but that he made no effort whatsoever to ascertain whether or not the top of the structure would support him or whether there were any defects whatsoever on the top of the spray booth; that he made no examination to ascertain the type of construction of the roof of the structure or whether or not there were glass sky-lights or panels located in the top of the structure, although the top of the booth was covered with dust, dirt and debris.

Appellee's employer testified that appellee had no occasion to go on top of the spray booth; that it was not necessary in the performance of the work of removing the conveyor and that the appellee was not authorized to go on top of the paint-spray booth nor did he give his consent to the appellee to go on top of said booth, and that if he, the employer, had known such fact, he would have terminated his services.

The primary and crucial question appearing in this appeal involves a consideration of the duty, if any, the appellant, under the particular circumstances here apparent, owed to the appellee and, if such duty was existent, whether the same was violated by appellant. The question encompasses the further investigation of the status occupied by appellee in coming upon the premises of appellant, that is, whether appellee was there as a trespasser, a licensee by permission or passive acquiescence, or as a licensee by inducement or invitation, express or implied, of appellant, since appellant's duty to appellee under the circumstances may be to some extent substantially dependent upon such status.

It is apparent, of course, that appellee was not upon the premises as a trespasser. In accounting for appellee's presence in appellant's building, it becomes necessary to trace the circumstances shown by the evidence. In the record now before us, as we have heretofore stated, the appellant possessed varied items of equipment located and installed in its building. This equipment was sold by appellant at auction to various purchasers who were required by the terms of the sale to remove the purchased equipment at their own risk and expense. One of the items purchased by Crown Machinery Company of St. Louis, was a conveyor system identified as a 458 webb-chain conveyor. This purchaser of the conveyor apparently engaged one Machinery Transfer Company to dismantle and remove the conveyor. The latter was the employer of appellee, who, as such employee, was cutting a section of the conveyor system when he sustained the injuries complained of. Nothing appears in the evidence showing any contractual relationship between appellant and the said Machinery Transfer Company or the appellee. Insofar as revealed by the evidence, appellant's only contractual connection was with the purchaser of the conveyor system who undertook to remove it at its own risk. Whether appellant had actual knowledge of appellee's presence in the building is undisclosed by the evidence.

It seems clear that the contract between appellant and the purchaser of the conveyor system was for their mutual benefit, the purchaser getting...