Lang v. Bailes

• Decision Date: 12 March 1910
• Citation: 125 N.W. 891,19 N.D. 582
• Court: North Dakota Supreme Court

125 N.W. 891

19 N.D. 582

FRED LANG v. HARRY H. BAILES AND WILLIAM M. PERKINS, CO-PARTNERS DOING BUSINESS UNDER THE FIRM NAME AND STYLE OF BAILES & PERKINS

Supreme Court of North Dakota

March 12, 1910

Rehearing denied April 13, 1910.

Appeal from District Court, Grand Forks County; Templeton, J.

Action by Fred Lang against Harry H. Bailes and William M. Perkins co-partners, doing business under the firm name and style of Bailes & Perkins. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, and from a judgment in favor of plaintiff defendants appeal.

Affirmed.

Guy C H. Corliss, for Appellants.

If the master furnishes material for the construction of an appliance which he has not undertaken to construct, and the workman constructs it, the master is not liable for the manner of construction.

Butler v. Townsend, 126 N.Y. 107, 26 N.E. 1017; Kimmer v. Weber, 151 N.Y. 418, 45 N.E. 860; Fraser v. Red River Lumber Co., 47 N.W. 785; Olsen v. Nixon, 40 A. 694; Pfeiffer v. Dialogue, 46 A. 772; Phoenix Bridge Co. v. Castleberry, 131 F. 175; Hutton v. Holdbrook, etc. Co., 139 F. 734; Peschel v. Ry. Co., 62 Wis. 338, 21 N.W. 269; Burns v. Sennett, 33 P. 916; Noyes v. Wood, 36 P. 766; Beesley v. Wheeler, 61 N.W. 658; Adasken v. Gilbert, 43 N.E. 199; Brady v. Norcross, 52 N.E. 528; Benn v. Null, 21 N.W. 700; Ross v. Walker, 21 A. 157; Kellea v. Faxon, 125 Mass. 485; O'Connor v. Rich, 164 Mass. 560, 42 N.E. 111; Lambert v. Pulp Co., 47 A. 1085; Garrow v. Miller, 47 A. 1087; Hoar v. Merritt, 29 N.W. 15; 26 Cyc. 1329.

The fellow servant rule prevails in this case. Sec. 5544, Rev. Codes 1905; Ell v. N. P. Ry. Co., 1 N.D. 336, 48 N.W. 222. The vice-principal rule is repudiated. Richards v. Hayes, 3 Am. Neg-Rep. 267; Peschel v. Ry Co., 62 Wis. 338; Noyes v. Wood, 36 P. 766; Leishman v. Union Iron Works, 83 P. 30; 20 Cyc. 1330 and note; Metzler v. McKenzie, 76 P. 114; 2 Labatt M. & S. 1790; Garrow v. Miller, 47 A. 1087; As repudiating the "different department" rule. Fraser v. Red River Lbr. Co., 47 N.W. 785; Pfeiffer v. Dialogue, supra; Beesley v. Wheeler & Co., 27 L.R.A. 266; Hogan v. Field, 44 Hun. 72; Butler v. Townsend, 126 N.Y. 107, 26 N.E. 1017; Kellea v. Faxon, supra; Hoar v. Merritt, 29 N.W. 15.

Erecting of a temporary scaffold is a servant's work, although one class of servants erect it for the use of another. Butler v. Townsend, supra; Fraser v. Red River Lbr. Co., 47 N.W. 785; Pfeiffer v. Dialogue, supra; Beesley v. Wheeler, supra; Kellea v. Faxon, supra; Lambert v. Pulp Co. supra.

Bangs, Cooley & Hamilton, for Respondent.

Facts found by a jury are as conclusive upon the appellate court as if proven by uncontradicted legal proof. Taylor v. Jones, 3 N.D. 235; 55 N.W. 593; Black v. Walker, 7 N.D. 414, 75 N.W. 787; Muri v. White, 8 N.D. 58, 76 N.W. 503; Howland v. Ink. 8 N.D. 63, 76 N.W. 992; Becker v. Duncan, 8 N.D. 600, 80 N.W. 762; Heyrock v. McKenzie, 8 N.D. 601, 80 N.W. 762; Magnusson v. Linwell, 9 N.D. 157, 82 N.W. 743; Flath v. Casselman, 10 N.D. 419, 87 N.W. 988; Drinkall v. Movius State Bank, 11 N.D. 10, 88 N.W. 724.

Where staging has been furnished by the master, he is liable for his neglect to make it safe. Chambers v. Am. Tin Plate Co., 129 F. 561; Cadden v. Am. Steel Barge Co. 88 Wis. 409, 60 N.W. 800; Ch. & A. R. Co. v. Scanlan, 170 Ill. 106, 48 N.E. 826; Ch. & A. R. Co. v. Maroney, 48 N.E. 953; Edw. Hines L. Co. v. Ligas, 50 N.E. 225; Kelly v. R. R. Co., 48 P. 843; Coughtry v Globe Woolen Co., 56 N.Y. 124; McNamara v. MacDonough, 102 Cal. 575; 36 P. 941; Donnelly v. Booth Bros., 37 A. 874 White v. Wm. Perry Co., 76 N.E. 512; Brown v. Gilchrist, 45 N.W. 82; Kan. Cy. Car & F. Co. v. Sawyer, 53 P. 90; Sims v. Am. Steel Barge Co., 56 Minn. 68, 57 N.W. 322; Arkerson v. Dennison, 117 Mass. 407.

Where a servant is performing a duty personal to the master and non-delegable, the master is responsible for his negligence. Lindaell v. Woods, 48 F. 62; Killea v. Faxon, 125 Mass. 485; Kan. Cy. Car & F. Co. v. Sawyer, supra; Roche v. Denver etc. R. Co., 73 P. 880; Lewis v. Seifort, 116 Pa. 628, 11 A. 514; Jacques v. Gt. Falls Mfg Co., 66 N.H. 482, 22 A. 552; Benzing v. Steinway, 5 N.E. 449; Mast v. Kern, 54 P. 950; Kelly v. Erie Tel. & Tel. Co., 25 N.W. 706; A. T. & S. F. Co., v. Moore, 29 Kan. 452; Haskell v. Cape Ann Anchor Wks., 4 L.R.A. (N. S.) 220, notes; Balt. & O. R. Co., v. Baugh, 149 U.S. 368, 37 L.Ed. 772; Coffeyville V. B. & T. Co. v. Shanks, 76 P. 856; Beesley v. Wheeler, 61 N.W. 658.

The "Vice-Principal" rule was not abrogated by section 5544 Rev. Codes 1905. Nor. P. R. R. Co. v. Herbert, 116 U.S. 642, 29 L.Ed. 755; Ell v. Nor. P. R. Co., 1 N.D. 336, 48 N.W. 222; Meehan v. Gt. Nor. Ry. Co., 13 N.D. 432.

Admission of incompetent testimony is harmless error, if there is other sufficient competent evidence to sustain a verdict. Fowler v. Iowa Land Co., 99 N.W. 1095; Cairncross v. Omlie, 13 N.D. 387, 101 N.W. 897; Waldner v. Bowdon State Bank, 13 N.D. 604, 102 N.W. 169; Union Cent. L. Ins. Co. v. Prigge, 96 N.W. 917.

CARMODY, J. ELLSWORTH, J. (dissenting).

OPINION

CARMODY, J.

This action was brought to recover damages for personal injuries for the alleged negligence of the defendants. A verdict was rendered in favor of the plaintiff for $ 2,500. A motion for a new trial and for judgment notwithstanding the verdict was made; the defendants having moved for a directed verdict at the close of all the evidence. This motion was denied, and the appeal is taken from the final judgment, and from the order denying such motion. At the time of the injury complained of, the relation of master and servant existed between the plaintiff and the defendants. Plaintiff's injury was sustained by reason of the breaking of one of the portlocks upon a scaffold on which plaintiff, who was a mason, was doing brick work. The evidence shows that the portlock was defective because of a large knot in the same, rendering the sound timber of the portlock insufficient to bear very heavy weight. The building upon which the plaintiff was working when injured was a small receiving vault, which was being constructed by defendants under contract. The walls of the building were of brick, and at the time the scaffold broke the plaintiff was working thereon, on the east gable end of the building; the scaffold being about 21 feet from the ground. The masons had constructed some of the scaffolds previously used on the building, and had had something to do with this scaffold. As the brickwork was carried up towards the roof, the scaffold in question had to be raised to different levels from time to time. Two of the carpenters did the work in raising the scaffold to the last level. While this level was being constructed by the carpenters, the plaintiff and one Bacon, a brick mason, were at work on the west end of the building. When they were ready to use the scaffold, they found it a complete structure and ready for their use. They, however, did some work in bracing and changing the scaffold.

Counsel for plaintiff concede that there was plenty of good material, furnished by defendants, out of which the scaffold might have been constructed without using the defective timber. At the request of the court, the jury, in addition to their general verdict, made certain special findings of fact as follows.

"Question No. 4. Did the defendant Perkins tell the plaintiff or Bacon, or either of them, the day the plaintiff was injured that he (Perkins) would see to having the staging built on which the plaintiff was injured? Answer. Yes.

"Question No. 5. Did the defendant Perkins instruct the carpenters, or any of them, on said day to build such staging? Answer. Yes.

"Question No. 6. If you answer either question 4 or 5 in the affirmative, then did the defendant Perkins by what he said undertake to become responsible for the safe building of such staging? Answer. Yes.

"Question No. 7. At the time the staging in question was built was there any general custom in this vicinity among contractors and their employes that the contractor should not only furnish a sufficient amount of good material for stagings, but should also be responsible for the building of the staging in a safe manner? Answer. Yes."

The main question to be determined on this appeal is whether as a matter of law, upon the evidence in the case and the facts found specially by the jury, the verdict in favor of plaintiff should be sustained. The rule, as we understand it, is that a scaffold is ordinarily a mere incident or detail to the construction of a building, and, unless the master has assumed the responsibility of furnishing such scaffold or staging, but intrusts the making of it to the servants, he is not liable for an injury caused to the workmen by reason of a defective scaffold or staging. If, however, the master undertakes to furnish the scaffold or staging as a complete structure, he is responsible for his neglect to make it safe. In the case at bar, there is some evidence that the defendants undertook to furnish the staging or scaffold on which plaintiff was injured, and assumed the responsibility of its construction.

Henry Bacon, one of the masons working on the building, testified that the defendant Perkins told him to stay on the wall, and he, Perkins, would look after the scaffold, and Perkins and the carpenters built it, or Perkins was there to see that the carpenters built it. There is evidence that plaintiff told defendant Perkins that they would soon be ready for another scaffold, and he Perkins, had better have a scaffold built on the east end of the building. Perkins directed the carpenters to build the scaffold, and, when plaintiff and the other mason got ready to use it, they found it constructed and ready for use. It is true that the...