Hughbanks v. Boston Inv. Co.

• Decision Date: 20 October 1894
• Citation: 60 N.W. 640,92 Iowa 267
• Parties: HUGHBANKS v. BOSTON INV. CO. FAY v. BOSTON INV. CO.
• Court: Iowa Supreme Court

92 Iowa 267

60 N.W. 640

HUGHBANKS

v.BOSTON INV. CO.

FAY

v.BOSTON INV. CO.

Supreme Court of Iowa.

Oct. 20, 1894.

Appeal from district court, Woodbury county; A. Van Wagenen, Judge.

Actions at law to recover damages for personal injuries alleged to have resulted from negligence on the part of the defendants. In each case there was a trial by jury, and a verdict and judgment for the plaintiff. Defendant the Boston Investment Company appeals. Reversed.Wright, Hubbard & Bevington, for appellant.

R. H. Brown and W. H. Farnsworth, for appellees.

ROBINSON, J.

In the year 1890 the Boston Investment Company, a corporation of the state of Maine, was having constructed in the city of Sioux City five buildings which were designed for business purposes, one of which was known as the “Bay State Block.” Contracts for material and labor required for the construction of the buildings were made by John G. Mainland in his own name, and he superintended the erection of the buildings. His authority was derived from a written agreement entered into with the company. In May, 1890, he entered into a contract with E. C. Wakefield, by which the latter agreed to furnish all material and labor and to do all masonwork required in the erection of the Bay State block. He commenced work under his agreement, and to aid in performing it he purchased and set up on the unfinished building a derrick to be used in raising stone and other material required for use. The morning after it was set up it was used to unload stone from a wagon in the street. While it was being so used, it broke, and a portion of it fell upon or was thrown against the plaintiffs, who were working on the building, causing the injuries for which they seek to recover. These actions were brought against both the company and Wakefield, but the jury in each case returned a verdict in favor of Wakefield. In Hughbanks' case a verdict was returned in his favor for $1,800, and in the other case a verdict was returned for Fay in the sum of $7,000. Judgment was rendered in each case in favor of the plaintiff and against the company for the amount of the verdict and costs, and in favor of Wakefield as against the plaintiff. The company alone appeals. The controlling questions are the same in the two cases, and they are submitted together for our determination.

1. The plaintiffs began work on the Bay State block on the 18th day of August, 1890, and received the injuries of which they complain four days later. They were not employed by Wakefield, nor were they under his control, but worked as carpenters under an engagement they made with C. L. Wood. His authority is not shown by any written instrument, but he appears to have been superintendent or foreman of the carpenters' department. The plaintiffs allege that the company was negligent in employing and retaining in its service incompetent and negligent agents and servants, and in permitting the use of defective and unsafe machinery and appliances, and especially in permitting the use of the derrick without having it properly fastened and guarded. The company alleges that it was engaged in the erection of the Bay State block by and through independent contractors, who controlled the erection of the building, and furnished all material, labor, and appliances required for that purpose, including the derrick in question, and that the company had nothing whatever to do with procuring the derrick, nor with operating it, and is not responsible for the injuries which were caused by it. The evidence tends to show that the accident was caused by the breaking of a timber of the derrick known as a “deadman,” and that the timber broke because it was defective and insufficient for the purposes for which it was used. At the time of the accident the third floor of the building did not extend to the front end, but only reached to within about 20 feet of it. The derrick was placed near the front edge of that floor in such a manner that the end of the boom projected over the sidewalk. The plaintiffs were employed on the second floor, which had been extended to the front end of the building, and were below the boom. The derrick had been placed in position to set stone in the front wall, but that was not ready to receive stone, and Wakefield testifies that he was not at the building at the time of the accident; that he did not know that the derrick was to be used that morning; that the teamster who used it was paid a fixed price for delivering each carload of stone at the building, and furnished the team and labor required for that purpose, and that he had no right whatever to use the derrick that day. It appears that it was operated by an engine, which was run by Wakefield's engineer. The engine was also used for other purposes. The derrick was new and painted. Whether the defects in the deadman could have been discovered before it was used, had reasonable care been exercised, was a matter of dispute in the district court. Some of the evidence tended to show that the derrick was not properly fastened to the building, and that Wood gave some directions in regard to fastening it, and that he was present at the time of the accident, and knew that the derrick was being used.

The contract between the Boston Investment Company, of the first part, and Mainland, of the second part, was as follows: “That said first party is about to construct five business blocks in Sioux City, plans of which are prepared, which business blocks are known to the parties hereto [one of which is the Bay State block in question in this suit]. That said first party desires to employ the second party in the construction of said buildings as herein stated. It is agreed that the second party shall proceed in his name to let contracts for all the work and material to the lowest bidder, subject to the approval of the first party; and said second party shall also purchase the material for the woodwork for said buildings, and perform or cause to be performed the carpenter work on the same, and all the material for the woodwork and labor on the woodwork shall be subject to the approval of said first party. The said second party shall superintend and supervise the entire construction of all of said buildings and all the materials and supplies furnished for the same, including foundations, brickwork, stonework, woodwork, painting, and each and every thing necessary to complete said buildings, in accordance with plans and specifications, or as said first party may direct. Said second party shall give his exclusive attention to the construction of said buildings and the examination of and supervision of material and work thereon, and shall make all contracts for material and labor on said buildings, of all kinds or character, in his own name, subject, however, to the approval of said first party; it being the intention hereof that the party of the first part shall have the right to determine the prices to be paid for all material and labor for said buildings. The second party shall furnish, on request, to first party, a statement of the actual cost of all work and material furnished or performed for said buildings under the contract, and said first party shall have the right to make any changes, alterations, or additions to any of said buildings, and any changes so made said second party shall supervise and superintend the same in same manner as in the construction of the buildings under the original plans; and said second party shall be responsible, in the first instance, under the contracts he makes therefor, to the person or persons with whom he contracts for labor or material for each and all of said buildings, and shall individually make his contracts for the same; and said first party agrees that, as statements are furnished to them of actual cost of said materials and labor under said contracts, they will pay to second party, for the use and benefit of the persons furnishing said labor and material, the actual cost of said labor and material, subject, however, to the right of said first party to reserve from said payments such proportionate amounts of the said several sums as will aggregate to the sum of $40,000, which said sum of $40,000 said second party agrees to receive in payment for labor and material on said buildings in the stock of said first party at the selling value at the time of the completion of said buildings, the intention hereof being that of said total sum of the cost of the material and labor on said buildings said second party is to accept and...