International Agr. Corp. v. Slappey

• Decision Date: 25 October 1919
• Docket Number: 3427.
• Citation: 261 F. 279
• Parties: INTERNATIONAL AGRICULTURAL CORPORATION v. SLAPPEY.
• Court: U.S. Court of Appeals — Fifth Circuit

261 F. 279

INTERNATIONAL AGRICULTURAL CORPORATION v. SLAPPEY.

No. 3427.

United States Court of Appeals, Fifth Circuit.

October 25, 1919

Marion Smith, of Atlanta, Ga., M. D. Jones, of Macon, Ga., Miller &amp Jones, of Macon, Ga., R. L. Maynard of Americus, Ga., and Little, Powell, Smith & Goldstein, of Atlanta, Ga., for plaintiff in error.

Hixon &amp Pace, Shipp & Sheppard and J. E. Sheppard, all of Americus Ga., for defendant in error.

Before WALKER, Circuit Judge, and FOSTER and GRUBB, District Judges.

GRUBB District Judge.

The plaintiff (defendant in error) is the widow of Ernest Slappey, and brings this suit to recover damages for his death, which occurred July 3, 1917, at Americus, Ga. The plaintiff recovered a judgment against the defendant in the District Court, and from that judgment this writ of error is taken.

The decedent at the time of his injury and death, was an employe of one Gammage, who was painting the plant of defendant under a contract by the terms of which Gammage was to furnish 'all tools and tackle necessary to the satisfactory completion of said work,' and agreed 'to assume all liability for injury to himself, his workmen, or damage to property. ' It is conceded that Gammage occupied the relation of an independent contractor to defendant, under the terms of the contract. The local superintendent, during the progress of the work, objected to Gammage's act in fastening a scaffold to the roof of the defendant's plant, and suggested that he arrange the scaffold in another manner, which required the use of a rope. Gammage told Parker, the defendant's superintendent that he did not have a rope. The superintendent then agreed to and did furnish Gammage a rope. Gammage used the rope, so furnished, to rig up the scaffold, as suggested by Parker. Gammage and the deceased worked on the scaffold after it had been rigged up during the morning. After the lunch hour they again went back to work on it, and shortly thereafter the rope broke, precipitating both a distance of 80 feet to the ground, and the decedent was killed. It was conceded that the accident was due to a defect in the rope, and that the method of rigging was safe, if the rope had been sufficient. The rope had been weakened by the action of acid to which it had been subjected in the defendant's plant. There was an issue of fact as to whether or not Parker furnished the rope to Gammage, which was resolved against the defendant by the jury.

The only error assigned and relied upon here is the refusal of the District Judge to direct a verdict for the defendant. We are therefore justified in assuming the truth of the evidence of the plaintiff. The plaintiff in error supports its contention that a verdict should have been directed in this way:

(1) That the defendant was under no duty to the employes of an independent contractor, charged with the duty of furnishing his own appliances, and to whom an appliance was gratuitously furnished, except that of not knowingly or intentionally furnishing a defective appliance.

(2) That there was no evidence in the record to show that the defendant's superintendent, Parker, when he furnished Gammage the rope, if he did so, knew of its defective condition.

(3) If Parker did furnish the rope, his act in doing so must be regarded as his individual act, and not one done within the scope of his employment as an agent of the defendant, and hence not the act of the defendant.

(4) If Parker furnished a defective rope to Gammage, to be used by him and decedent, and if his act in doing so was within the scope of his employment, still he was a mere fellow servant of decedent, if decedent was a servant of defendant, for whose negligence defendant was not responsible.

1 and 2. The duty of one to the employes of another, who occupies the relation of independent contractor to the first, under a contract which imposes the duty upon the contractor to furnish his own working appliances, is, in case the first gratuitously furnishes appliances to the contractor, only not to knowingly furnish improper or defective appliances. Unless there is evidence in the record tending to impute knowledge of the defect in the rope to Parker, when, if at all, he furnished it to Gammage, the plaintiff was not entitled to go to the jury, if Gammage was an independent contractor. The plaintiff in error insists that the record contains no evidence tending to fasten knowledge on Parker of the weakened condition of the rope. There is evidence in the record tending to show that Parker got the rope from a pile of ropes in the corner of one of the buildings of defendant...