International Harvester Co. v. Sartain

• Decision Date: 21 May 1948
• Citation: 222 S.W.2d 854,32 Tenn.App. 425
• Parties: INTERNATIONAL HARVESTER CO. et al. v. SARTAIN.
• Court: Tennessee Court of Appeals

222 S.W.2d 854

32 Tenn.App. 425

INTERNATIONAL HARVESTER CO. et al. v. SARTAIN.

Court of Appeals of Tennessee.

May 21, 1948

Certiorari Denied by Supreme Court March 11, 1949.

Suit by Ira Sartain against International Harvester Co., Virginia Engineering Company and another for injuries arising out of contact with high voltage electric wire installed at direction of Virginia Engineering Co., on premises on which it and other independent contractors were erecting a factory for International Harvester Co.

The jury returned a verdict against named defendants for $60,000 which was reduced by remittitur of $20,000. The Circuit Court of Shelby County, A. O. Holmes, J., entered judgment thereon and named defendants appeal in he nature of a writ of error and plaintiff appeals seeking a restoration of original verdict.

The Court of Appeals, Swepston, J., entered judgment for $40,000 against named defendants, holding, inter alia, that the liability of International Harvester Co. for injury to employee of subcontractor was a question for jury and that award as reduced by remittitur was not excessive.

Permitting physician, in answer to hypothetical question, to express his opinion that plaintiff was not then and probably would not be able to work on elevated structures the remainder of his life, over objection that question did not contain all the facts, was not error.

A. Longstreet Heiskell (of Chandler, Shepherd Heiskell & Williams), of Memphis, for International Harvester.

Cooper Turner, Jr., and Chas. L. Neely, both of Memphis, for Virginia Engineering Co.

Evans Exby, Moriarity & Creson, of Memphis, for Ira Sartain.

SWEPSTON Judge.

This is an appeal in the nature of a writ of error from a jury verdict and judgment.

Suit was brought by Ira Sartain against the defendants, International Harvester Company, Virginia Engineering Company and Memphis Light, Gas and Water Division of the City of Memphis for personal injuries arising out of contact with a high voltage electric wire.

There was a verdict for $60,000 against the first two named defendants and a verdict of not guilty in favor of the third named defendant.

The trial judge suggested a remittitur of $20,000, which was accepted under protest and Ira Sartain has appealed therefrom seeking a restoration to the original amount.

There is no dispute about the ultimate material facts.

International, as the first plaintiff-in-error will be referred to, was procuring the erection of a large factory on a tract of about 152 acres located a few miles north of Memphis and between Highway 51 and the Mississippi River just west of the suburb of Frayser.

There was, of course, an overall plan of the entire permanent lay-out, but International, so far as appears from the evidence, executed none of the work itself but had all of it done by independent contractors, but it did reserve the right to do work as it might elect.

Virginia, as the second plaintiff-in-error will be designated, as the largest contractor and is referred to in its contract as the 'principal contractor', but, while it had numerous sub-contractors, there were in fact other independent contractors working on the premises simultaneously with Virginia who had no connection with Virginia but were direct independent contractors with International.

All these contracts provided that each contractor should so manage as that all work should be carried on harmoniously and concurrently among themselves.

The structure, on which Sartain was working as a steel construction worker when injured, was one of twelve or more single story steel buildings in a row, some of which were contiguous and some adjacent to one another.

The contract for the fabrication and construction of these buildings was direct from International to Gage Structural Steel Company and the work was being done by its sub-contractor, Beasley; so that Gage was the remote and Beasley the immediate employer of Sartain. Virginia had no connection with his employment, nor with the Gage contract in any manner and Gage had no need for and was not using the electricity nor tools provided by Virginia.

With this preliminary a fair statement of the contracts and the facts so far as here pertinent is taken from the brief of International, with the insertion in paragraph 4 of the words 'owner and' just preceding 'all contractors', and with the exception of its No. 8, which will be later discussed.

'1. That Virginia will furnish all tools, labor and materials to erect in place the manufacturing plant, and employ and direct all persons performing the work (Contract, Ex. 1, Schlobohm, R. Ex. Vol., pp. 4, 13).

'2. That Gage will fabricate and erect the structural steel at the Memphis plant and will employ and direct all persons performing the work (Contract, Ex. A, Thimm, R. Ex. Vol., pp. 223, 229).

'3. That International will provide water on the plant site for all contractors (Specifications, Ex. A, Schlobohm, R. Ex. Vol., pp. 128, 139).

'4. That Virginia will provide temporary electrical power on plant site for owner and all contractors (Specifications, Art. 30, Ex. A, Schlobohm, R. Ex. Vol., pp. 128, 136).

'5. That the contractors agree to use every safeguard and protection against injury and to be solely responsible for injury of any person, whether workman or otherwise (Specifications, art. 8, Ex. A, Schlobohm, R. Ex. Vol., pp. 128, 131).

'6. That the contractors agree to indemnify International from liability for injuries to any person in connection with or growing out of the work (Contract, Ex. 1, Schlobohm, R. Ex. Vol., pp. 4, 14; Contract, Ex. A, Thimm, R. Ex. Vol., pp. 223, 230; Specifications, art. 8, Ex. A. Schlobohm, R. Ex. Vol., pp. 128, 131).

'7. That International retains no direction or control over the manner in which the contractors perform their work; the contractors remain 'independent contractors' (Contract, Ex. 1, Schlobohm, R. Ex. Vol., pp. 4, 14; Contract Ex. A, Thimm, R. Ex. Vol., pp. 223, 229).

'8. That International reserves no control over the premises, save that its superintendent shall have access to the premises for inspecting and estimating the amount of the work, seeing that the work is done according to the contract, and interpreting the plans and specifications in case of uncertainty (Contract, Gen. Conditions, arts. 9 and 10, Ex. A, Schlobohm, R. Ex. Vol., pp. 128, 131-132).

'9. That the owner shall not occupy the buildings prior to completion, unless the contractor shall give, in writing, his authorization therefor (Contract, Gen. Conditions, art. 23, Ex. A, Schlobohm, R. Ex. Vol., pp. 128, 134).

'10. All contractors and subcontractors are required to qualify under the Tennessee Workmen's Compensation Law (Contracts, Ex. 1, Schlobohm, R. Ex. Vol., pp. 4, 13; Ex. 1, Thimm, R. Ex. Vol., pp. 223, 230).

'In the course of the work, according to the provisions of the contract, the owner did not assume any control of the contractors as to the manner in which they did their work, the persons they employed or the direction of their work. The superintendent and his assistants were on the premises, not to assume custody or control of the work or to direct safety precautions or to designate the persons to be employed or other details, but solely to inspect and estimate the amount of work, interpret plans and make decisions on any disagreements. The superintendent of International was acting in the capacity of engineer-architect at the site of the work. International was not doing any work of its own at the site of the accident (Specifications, art. 11, Ex. A, Schlobohm, R. Ex. Vol., pp. 128, 129, 132; Testimony Thimm, R. pp. 563, 566, 576).

'In fulfilling its contract obligations to furnish water, International had the Light Division construct a temporary power line from the north side of the plant site to the pump located at the well. This line was not involved in the accident (Specifications, Ex. A, Schlobohm, R. Ex. Vol., p. 128, Testimony Thimm, R. Vol. II, p. 572).

'In fulfilling its contract obligation (Contract Gen. Conditions, art. 30, Ex. A. Schlobohm, R. Ex. Vol., p. 128) to furnish power to all contractors, Virginia had the Light Division construct a power line from the pole near the well southeastwardly by the site of building No. 4 to building No. 2 (Site Plan, Ex. 4, Schlobohm, R. Ex. Vol., p. 85). This is the line that was involved in the accident (Miller, R. Vol. I, pp. 264-265, 273-274; Yarbrough, R. Vol. I, p. 214; Schlobohm, R. Vol. II, pp. 399-400, Exs. 16K and 16L Ex. Vol., pp. 121, 122).

'When the line last above mentioned was erected, building No. 4 (on which plaintiff was working when injured) had not been erected, but the foundations for the wall were in place (Schlobohm, R. Vol. II, p. 390, Exs. 5 to 15, Ex. Vol., p. 86). When the structural steel was erected, the column and truss at the southwest corner of the building No. 4 were approximately four feet, eight inches, from the temporary power line to building No. 2 (J. C. Michaels, R. Vol. III, p. 656). No accident occurred in the erection of this steel.

'On the date of the accident, the plaintiff Sartin and another steel worker, Lee Taylor, were placing tie rods in the roof trusses. These tie rods, or brace roads, run diagonally from the base of one truss to the apex of the next truss, tying them together. The tie rod is a flexible steel rod about one inch in diameter and thirty feet in length; it was elevated to the gutter line by means of ropes and was then put in place by one of the steel-workers going up to the apex of one truss with one end of the rod, while the other worker 'fed' the rod to him and then fixed the other end in the lower corner of the adjoining truss (Thimm, R. Vol. II p. 579; Miller, R. Vol. I, p. 265)...