Kramer v. Kramer

• Decision Date: 14 October 1957
• Docket Number: No. 4695,4695
• Parties: AUGUST F. KRAMER, T/A A. F. KRAMER COMPANY v. REGENIA P. KRAMER, ET EL., ADMINISTRATORS OF THE ESTATE OF GUSTAVE WILLIAM KRAMER. Record
• Court: Virginia Supreme Court

Page 37

100 S.E.2d 37

199 Va. 409

AUGUST F. KRAMER, T/A A. F. KRAMER COMPANY v. REGENIA P. KRAMER, ET EL., ADMINISTRATORS OF THE ESTATE OF GUSTAVE WILLIAM KRAMER.

Record No. 4695.

Supreme Court of Appeals of Virginia

October 14, 1957.

Henry B. Crockett, for the plaintiff in error.

Charles H. Duff and Charles L. Wilkes (Jesse, Phillips, Klinge & Kendrick; Wilkes & Artis, on brief), for the defendants in error.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

The administrators of Gustave Kramer brought this action at law against August F Kramer, herein referred to as defendant, for the wrongful death of their decedent. They recovered a verdict and judgment for $25,000.00, to which we granted the defendant this writ of error. The principal questions in the case are whether the plaintiffs charged and proved negligence on the part of the defendant, and whether such relationship existed between the decedent and the defendant as that the exclusive remedy of the plaintiffs was under the Virginia Workmen's Compensation Act, Code, 1950, §§ 65-1 ff.

The defendant filed a demurrer to the plaintiff's motion for judgment on the grounds that it did not charge any negligence and showed that the decedent assumed the risk of his employment; and also filed a special plea alleging that the motion showed on its face that the plaintiffs were precluded from maintaining this action at law by the Compensation Act, which afforded them their only remedy.

The motion for judgment was in two counts. The first alleged facts to make applicable the doctrine of res ipsa loquitur; and the second alleged negligence on the part of the defendant and his employees in securing in its position a certain truss that had been erected and which fell and fatally injured plaintiffs' decedent. The motion for judgment also alleged that the defendant and his employees were working under a contract with Arlington Church of Christ on the construction of certain portions of a new church building, and that at the same time Old Dominion Hoisting Service, decedent's employer, was also working under a contract with the church to perform certain work on the church, and that the negligence of the defendant which resulted in decedent's death occurred when each was about his own work. The allegations of the motion were sufficient to charge negligence and insufficient to show that the case was controlled by the provisions of the Compensation Act. The action of the court in overruling the demurrer and the plea was proper. The issues thereby raised were afterwards presented by motions to strike the plaintiffs' evidence and to set aside the verdict, which were overruled, and they are the issues now to be decided on the evidence and the applicable law.

According to the settled rule the evidence must here be considered in the light most favorable to the plaintiffs and effect given to all reasonable inferences which the jury could draw therefrom. Southern Stevedoring Corp. v. Harris, 190 Va. 628, 633, 58 S.E.2d 302, 304.

On April 1, 1954, the defendant, August F. Kramer, entered into this contract with Arlington Church of Christ, by Wade Smith, Chairman of its Building Committee:

'For the sum of * * * $13,239.00 I will perform all labor required for rough and finish carpentry and supervision necessary to complete the work regarding the herein mentioned church building according to plans and specifications by Architect Raymond J. Mims. This price does not include any concrete forming, installation of pews, pulpit or altar furniture or any labor connected with finished grading. Progress payments to be made according to work performed.'

Smith testified that the church desired to enlarge an existing structure. He was asked how the work was to be performed and replied, 'by sub-contract, in its entirety by sub-contract.'

In the course of construction it became necessary to erect certain trusses or arches. These were laminated wooden trusses about forty feet high and weighing two or two and one-half tons each. There were six of them to be raised and this work required the use of a crane. This was procured from Wilford W. Downs, trading as Old Dominion Hoisting Service, who was in the business of renting cranes along with crews to operate them. Who employed Hoisting Service is a controverted question to be discussed later. Downs sent his crane, weighing some thirty tons, to the job in charge of two of his own employees, who were Robinson, the operator or engineer, and the decedent Kramer (not related to the defendant), the oiler or apprentice engineer. The decedent had been in Downs' employ about three years and Downs was planning to make him an operator at the time he was killed on July 9, 1954.

The crane and the two members of its crew were rented on an hourly basis. Downs came to the job to set up the crane and see that it was ready to operate. Four of the six trusses had been erected prior to the day of the accident. On that day the fifth truss was prepared for raising by wrapping it in waterproof paper and placing around it certain ropes and rigging, all of which was done by defendant's employees. The work called for raising the trusses to an upright position. The fifth and sixth trusses, which were shorter than the others because they were to rest on top of the wall, were being raised to a temporary position to clear the church floor. The fifth truss was lifted and placed so it leaned slightly against the masonry wall with its base resting on the main floor of the church. A rope was then attached to the top of this truss, which was in turn fastened to another rope which was tied around a wall between two doorways. The work of attaching and tying the ropes was likewise done by defendant's employees and was for the purpose of keeping this truss from falling. After this fifth truss was so placed the boom of the crane was disengaged by the defendant's employees and moved by the operator of the crane over to the sixth truss and the fifth truss was thereafter under the sole control of the defendant.

The defendant's employees then proceeded with the wrapping of the sixth truss. During that work the defendant, or one of his employees, asked the operator to raise this truss a few feet so they could put paper under the bottom. This was from fifteen to thirty minutes after the crane had been disengaged from the fifth truss. As the operator reached the crane he saw a slight movement of the fifth truss and yelled to the decedent, who was standing near the sixth truss. The decedent ran but the falling truss caught him and inflicted the injuries from which he died in a few minutes.

What caused the truss to move was not shown, but what allowed it to fall was the breaking of the rope which had been attached near its top by defendant's employees to keep it from falling. This rope, the defendant testified, appeared to have been cut by a sharp object. It had been tied by the defendant's foreman on a vertical section at the top of the truss just above a sharp angle iron which had apparently cut the rope when the weight of the truss pressed against it. This angle iron could easily be seen when the truss was lying on the floor, where it was when the rope was tied by the defendant's foreman, who testified that these were the first church arches (trusses) he had ever set up.

Without objection from the defendant the court instructed the jury that if the instrumentality which caused the decedent's death was in the control of the defendant, and the accident was such as would not ordinarily occur if reasonable care was used by the defendant, and the defendant alone had the means of discovering how and why it happened, the jury might infer that the accident was due to some negligence of the defendant. With this inference and the evidence it was for the jury to decide whether the death of the decedent was due to the negligence of the defendant. Whether the decedent was guilty of contributory negligence was submitted to the jury and its verdict properly concluded that question. There was no evidence to justify defendant's offered instruction on assumption of risk.

The next question is whether the plaintiffs were precluded from maintaining this action at law by the provisions of the Workmen's Compensation Act, and that makes it necessary to determine the relationship of the decedent to the defendant and his work as shown by the evidence and the reasonable inferences from it. It was stipulated that Old Dominion Hoisting Service and the defendant both had workmen's compensation insurance covering their employees, and that the decedent's wife had filed with the Virginia Industrial Commission a claim for compensation against Hoisting Service.

The evidence for the defendant tended to prove that the work of raising the trusses was his business under his contract with the church; that he contracted with Hoisting Service to furnish the crane and the two men with it; that he paid Downs, owner of Hoisting Service, for the services of the men and the crane; that the men with the crane were under his direction and control and became his employees on the job; that he was the only supervisor on the job and actively engaged in directing the details of the work; that Hoisting Service was his subcontractor and not a stranger to his business; from which the defendant argues that between him and plaintiffs' decedent the relationship of employer and employee existed, and plaintiffs were therefore limited to the compensation provided by the Compensation Act and were precluded from maintaining this action by the provisions of that Act as interpreted in Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73, and subsequent cases.

The plaintiffs' evidence, on the other hand, tended to prove that the work of raising the trusses was not a part of the defendant's carpentry contract, but was the separate and independent business of Hoisting Service under a contract made by the church with...