Kramer v. Mills Lumber Co.

• Decision Date: 20 February 1928
• Docket Number: No. 7635.,7635.
• Parties: KRAMER v. MILLS LUMBER CO.
• Court: U.S. Court of Appeals — Eighth Circuit

60 ALR 366, 24 F.2d 313 (1928)

KRAMER v. MILLS LUMBER CO.

No. 7635.

Circuit Court of Appeals, Eighth Circuit.

February 20, 1928.

Rendlen & White, of Hannibal, Mo., for plaintiff in error.

Paul D. Higbee, of Lancaster, Mo., and M. D. Campbell, of Kirksville, Mo. (Higbee & Mills, of Lancaster, Mo., on the brief), for defendant in error.

Before KENYON and BOOTH, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge.

This case presents the question whether the trial court erred in directing a verdict for the defendant at the conclusion of the plaintiff's evidence. The parties will be designated as in the court below.

The plaintiff sued to recover for damages caused her by the death of her husband, Abe Kramer. He was killed at La Plata, Mo., by the breaking of a timber supporting a high scaffold on which he was working, causing him to fall to the ground. At that time he was employed by the Pittsburgh-Des Moines Steel Company. The steel company was then engaged in erecting at La Plata a steel water tank, which was supported at a height of about 125 feet above the ground by a tower having four columns of steel. The steel company by its employés, including Mr. Kramer, erected the scaffold. This suit was brought against the defendant, a lumber company that furnished the piece of timber which broke and caused the accident. The steel company, acting by Mr. Kramer, had purchased this and three other similar pieces of timber from the defendant. The plaintiff's petition alleges that, before ordering the timbers, Mr. Kramer explained to the defendant the use to be made of these timbers in building the scaffold, stated that he and other workmen would be employed upon it, with their tools and equipment, and that timbers were required of fresh, clear, strong, and sound stock, 6 inches in width by 6 inches in thickness, and of 20 feet in length. It further alleges that the defendant agreed to furnish such timbers, but, instead of furnishing them, negligently, knowingly, and deceitfully furnished unsound timbers, not of the quality ordered, and unfit and inherently dangerous for the purposes for which they were to be used, as the defendant well knew, and that, as a result of such inferior quality, the timber broke and caused the accident.

The answer of the defendant denied any negligence on its part. The evidence shows that Mr. Kramer, for the steel company, ordered from the defendant four timbers, "6×6×20," and that by trade usage, this meant timbers 20 feet long, 5½ inches in width, and 5½ inches in thickness. The defendant did not have such timbers in stock, but promised to procure them. Mr. Kramer explained to the defendant a purpose to use these and two similar timbers that it had, in constructing a platform 112 feet above the ground and beneath the water tank. Upon this platform Mr. Kramer and other workmen would be supported while riveting together sections of the steel tank. It was explained that two of the timbers would be used as supports for the platform, one to be placed at the east side and one at the west side of the tower, and these timbers would each be attached by chains to the upright columns of the tower. The chains were to be placed around the timbers about 18 inches from the ends, and this would leave an unsupported span of about 17 feet. Across these girders (referred to in the testimony as needle beams) the other four timbers were to be placed, and over these was to be placed a floor of planks. It was stated that there would be five men on the platform, two or three kegs of rivets, a forge, coal for the forge, and tools.

The defendant was informed by Kramer that "good, clean, and sound" timbers were desired, of "new stock, clean timber, suitable for scaffolding" — "good stock, strong timbers, and suitable for the purpose, as our lives depended upon it." A suggestion is made that there is no proof that the timbers were delivered by the defendant, but in view of the admissions in the answer, as applied to the testimony, the suggestion does not require further notice.

At the trial a witness arranged six small wooden sticks to represent the mode in which the timbers were placed in this scaffold when it was built. Much of the testimony refers to this exhibit. The exhibit is not a part of the record, and without it a large part of the testimony is indefinite. It appears that two of the crosspieces were near the center of the girders, but the exact position of the four crosspieces cannot be ascertained. The flooring embraced planks of 2 inches in thickness, and some of 1 inch — some of a length of 14 feet and some of a length of 12 feet. The width of the floor is not known. The weight of the crosspieces and of the flooring is also unknown. The girder on the west side broke near the center, and this caused the whole platform, supported by it, to fall to the ground. Just before the fall, two of the men were standing somewhere towards the center of the platform on the western portion of it, and one man stood by a forge at a corner of the platform near a column. Some coal and coke, tools, and a ladder also rested on the platform. The total weight on the scaffold was between 2,500 and 2,700 pounds.

At the trial the plaintiff produced a portion of the timber which broke and caused the accident. Much of the testimony refers to it. It was offered in evidence and received as an exhibit. It was not brought up to this court, and its absence makes it difficult to get a clear understanding of the quality of the timber which the defendant furnished. It appears that at the trial a portion of this timber measured 5½ inches in width by 5¼ or 5 3/8 inches in thickness. There does not appear to have been any testimony that the order for the timbers specified that it should be of No. 1 grade, but there was much testimony to show that this exhibit was not of that grade. There was no testimony that "clear" timber was ordered, but much testimony was given that the exhibit was not of "clear" timber. There was testimony that the exhibit was not sound, and as reasons why it was not sound, or was not of No. 1 grade, witnesses specified the existence of one or more "spike knots," one of them where the break in the wood occurred, other knots too close together, "shakes," an appearance of resin, and a checked or rechecked surface.

The plaintiff concedes that the action is not one for a breach of contract. See Standard Oil Co. v. Murray (C. C. A.) 119 F. 572, 575; S. H. Kress & Co. v. Lindsey (C. C. A.) 262 F. 331, 333, 13 A. L. R....