Jennings v. Vincent's Adm'x

• Court: Kentucky Court of Appeals
• Writing for the Court: SIMS, Commissioner.
• Citation: Jennings v. Vincent's Adm'x, 284 Ky. 614, 145 S.W.2d 537 (Ky. Ct. App. 1940)
• Decision Date: 29 November 1940
• Parties: JENNINGS v. VINCENT'S ADM'X. SAME v. BELL'S ADM'X. BELL v. AXTON-FISHER TOBACCO CO. VINCENT v. SAME.

145 S.W.2d 537

284 Ky. 614

JENNINGS v. VINCENT'S ADM'X.

SAME v. BELL'S ADM'X.

BELL v. AXTON-FISHER TOBACCO CO.

VINCENT v. SAME.

Court of Appeals of Kentucky

November 29, 1940

Appeals from Circuit Court, Common Pleas Branch, Second Division Jefferson County; Burrel H. Farnsley, Judge.

Action by Robert Orr against John D. Jennings and the Axton-Fisher Tobacco Company to recover for personal injuries, and death action by Lydia R. Bell, Wavie Bell's administratrix against John D. Jennings and the Axton-Fisher Tobacco Company, and death action by Sylvia A. Vincent administratrix of Hova Vincent, against John D. Jennings and the Axton-Fisher Tobacco Company. The actions were tried together. At the conclusion of all evidence, the trial court gave a peremptory instruction in favor of the Axton-Fisher Tobacco Company and a peremptory instruction in favor of John D. Jennings as against Robert Orr but submitted to the jury the cases of Lydia R. Bell, Wavie Bell's administratrix and Sylvia A. Vincent, administratrix of Hova Vincent, as against John D. Jennings. The jury returned verdicts against John D. Jennings and he appeals, and the administratrices appeal from the judgment on the directed verdicts against them in favor of the Axton-Fisher Tobacco Company.

Judgments against John D. Jennings reversed for further proceedings and judgment for the Axton-Fisher Tobacco Company affirmed.

Davis, Boehl, Viser & Marcus and Dodd & Dodd, all of Louisville, for Jennings.

Nathan Kahn, Richard Priest Dietzman, and W. S. Heidenberg, all of Louisville, for Administratrices.

Charles W. Morris and Morris & Garlove, all of Louisville, for Tobacco Co.

SIMS Commissioner.

John D. Jennings entered into an agreement with the Axton-Fisher Tobacco Company, hereinafter referred to as the Company, to construct a sweathouse for it in Louisville to be used in ageing tobacco. The American Builders Supply Company, hereinafter referred to as The American, was a subcontractor on this job, having a contract with Jennings to furnish the necessary labor and material for re-enforcing steel for the walls and floor of the building. While the building was being insulated there was an explosion which killed Hova Vincent and Wavie Bell, and injured Robert Orr, all of whom were employees on this job of The American.

The building fronted 87 feet on Nineteenth Street and extended westwardly 104 feet towards Twentieth Street to the rear wall of an old plant which was utilized as the rear wall of this new structure. This sweathouse was a very low building, being only 6 1/2 feet high. It had no windows in the walls or vents in the roof, except on Nineteenth Street there were two open doorways some 30 feet apart and in the rear wall there was a door 6 by 8 feet. The building was to be insulated with Celotex, the walls were coated with melted asphalt and the Celotex was pressed into the asphalt. The floor was insulated by a patented plastic known as R.I.W., a highly volatile substance which a chemist testified would flash at 95 degrees Fahrenheit, with a fire point at 100 degrees. The drums containing the R.I.W. had this warning painted on them: "Do not open nor use near open flame; provide good ventilation during use."

At the time of the explosion which was on the morning of July 6, 1936, the three walls, together with the common wall of the old building, and the roof had been completed. The door in the back wall was closed and the only openings in the sweathouse were the two doors on Nineteenth Street. This explosion occurred on Monday morning after about 200 gallons of R.I.W. had been applied on the floor and Celotex affixed thereto on the preceding Thursday or Friday. Due to the Fourth of July holiday no work had been done in the building since the previous Friday. An open vat in which the asphalt was being melted was about half way back in the building. As the gasoline burners were not inclosed, there was an open flame under this heating vat. On the morning of the accident, workmen of Jennings' were carrying R.I.W. in open buckets containing from two to three gallons from the drums outside into the building and within a few feet of the open flame underneath the vat. A flame was seen to shoot up from the gasoline burners, it ran rapidly along the ceiling of the building and a terrific explosion occurred. The architect and also Coffman, the Company's engineer, knew there was an open flame under the vat while R.I.W. was being spread in the building.

The dependents of the two men who were killed and Orr filed applications with the Workmen's Compensation Board against The American, and proper awards were made in their favor. The administratrices and Orr all filed suits at law against Jennings and the Company alleging that the explosion and resulting deaths and the injury to Orr were due to the negligence of Jennings and the Company.

Jennings' answers traversed the petitions and affirmatively pleaded contributory negligence on the part of the decedents and Orr. These answers contained a third paragraph incorporating an affirmative plea that Jennings was the principal contractor for the Company; that the two decedents and Orr were employees of the subcontractor on the job, The American; that both contractors and their employees were all operating under the Workmen's Compensation Act, Ky.St. § 4880 et seq., and that the explosion occurred on the premises on which Jennings was executing his contract; that applications had been made to the Workmen's Compensation Board (hereinafter referred to as the Board) for compensation against The American, and awards had been made against it in favor of the dependents of the two decedents and in favor of Orr; that The American had appealed to the circuit court from these awards by the Board, which awards were affirmed by the circuit court; and that the judgment of the circuit court affirming the awards had not been appealed from nor modified.

The answers of the Company first traversed the allegations of the petition, then pleaded contributory negligence on the part of the decedents and Orr, following which was an affirmative plea in bar of the action that it had no control over the construction of the sweathouse, but that same was being constructed by Jennings, an independent contractor.

The trial judge sustained general demurrers filed by the plaintiffs to the third paragraph in Jennings' answers and the court refused to let Jennings file an amended answer pleading res adjudicata to the effect that the Board had found the accident was caused by the negligence of The American and that Jennings had not been negligent, which finding of the Board was affirmed on an appeal to the circuit court. The three cases were tried together and at the conclusion of all the evidence the trial judge gave a peremptory instruction in favor of the Company and also gave a peremptory instruction in favor of Jennings as against Orr, but submitted to the jury the cases of the two decedents against Jennings. The jury returned verdicts in favor of each decedent in the sum of $10,000. Jennings appeals from the judgments entered on the verdicts against him, and the two administratrices appeal from the judgments entered on the verdicts directed against them in favor of the Company. There was no appeal prosecuted by Orr.

Jennings insists the circuit court erred in sustaining general demurrers to the third paragraph of his answers, contending that after an award for the death of an employee is made by the Board against his employer, who is a subcontractor, such decedent's estate cannot recover at law against a principal contractor. The two administratrices on their appeals argue that the circuit court erred in holding that because Jennings was an independent contractor, the Company is not liable, contending that the work was of such an inherently dangerous nature that the owner could not be relieved by a contract from damages resulting therefrom.

The actions of the administratrices against Jennings are based upon § 4890, Ky.Stats., which is part of the Workmen's Compensation Act and reads: "Whenever an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employe may at his option either claim compensation or proceed at law by civil action against such other person to recover damages, or proceed both against the employer for compensation and such other person to recover damages, but he shall not collect from both, and if compensation is awarded under this act either the employer or his insurance carrier, having paid the compensation or having become liable therefor, shall have the right to recover in his or its own name or that of the injured employe from the other person in whom legal liability for damages exists not to exceed the indemnity paid and payable to the injured employe."

In McEvilly v. L. E. Myers Co., 211 Ky. 31, 276 S.W. 1068 1071, we had before us, as in the instant case, the right of an employee of a...