Looney v. Prest-O-Lite Co.

• Decision Date: 14 November 1917
• Docket Number: No. 9610.,9610.
• Citation: 65 Ind.App. 617,117 N.E. 678
• Parties: LOONEY v. PREST-O-LITE CO.
• Court: Indiana Appellate Court

65 Ind.App. 617

117 N.E. 678

LOONEY

v.PREST-O-LITE CO.

No. 9610.

Appellate Court of Indiana, Division No. 1.

Nov. 14, 1917.

Appeal from Circuit Court, Boone County; Willett H. Parr, Judge.

Action by William J. Looney against the Prest-O-Lite Company. From a judgment for defendant, plaintiff appeals. Affirmed.Roy W. Adney, of Lebanon, and George W. Galvin, of Indianapolis, for appellant. John S. Berryhill, Bernard Korbly, and Willard New, all of Indianapolis, for appellee.

FELT, J.

Suit for damages for personal injury brought by appellant against appellee. To the complaint in three paragraphs appellee filed answer in general denial, and a special paragraph, in which it alleges, in substance, that appellant was injured by the collapse of a building which fell while in the process of construction; that the building was being constructed by an independent contractor, and appellant when injured was working in said building and was employed by one Louis B. Skinner, a subcontractor, who had contracted with W. H. Johnson & Son Company to do all the plumbing in said building; that W. H. Johnson & Son Company were independent contractors who had entered into a contract with appellee to furnish all material and labor for the plumbing and heating of said building and complete the same according to the plans and specifications therefor by a specified time. After the issues were formed, the venue of said cause was changed to the Boone circuit court where the case was tried. At the close of appellant's evidence, on appellee's motion, the court instructed the jury to return a verdict for appellee, which was accordingly done. Appellant's motion for a new trial was overruled, and exception reserved, and judgment was rendered on the verdict, from which this appeal was taken.

The error assigned and relied on for reversal is that the court erred in overruling appellant's motion for a new trial. A new trial was asked on the ground that the verdict of the jury is not sustained by sufficient evidence; that the court erred in instructing the jury to return a verdict for the defendant, and in sustaining appellee's objection to the introduction of certain evidence offered by appellant.

The building mentioned in this suit, and many of the essential facts, are identical with those considered in the case of Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 106 N. E. 365, Ann. Cas. 1917A, 474.

Appellant alleges that the plans for the building were prepared by an architect, for the construction of a reinforced concrete building of a certain kind, and that the contract was let for a building of a different type of construction from that provided by the plans and specifications; that the contract was for a two-story building, and after the building was partly constructed a third story was added; that on the 6th day of December, 1911, while the roof of the building was being placed thereon, the building collapsed and fell; that appellant at the time was in the lower part of the building working as a plumber and was caught and severely injured. Appellant also charges that appellee entered upon the construction of said building in the month of November, 1911; that the construction of such a building at that season of the year was and is inherently dangerous; that at that time the construction of such buildings was only in the experimental stages; that appellee knew, or by the exercise of ordinary care could have known, of the extra perils and inherent dangers incident to the construction of a concrete building at that season of the year.

The substance of the evidence material to the questions presented is as follows: Appellee employed a competent architect, who prepared complete plans and specifications for the erection of a reinforced concrete building. The general contract was let to Wolf & Ewing competent and experienced building contractors. The contract for the plumbing and heating was let by appellee to W. H. Johnson & Son Company, and the latter sublet the plumbing to Louis B. Skinner, a competent and experienced plumber, who employed appellant to work as a plumber, and who was so working for him in the aforesaid building when it fell and injured appellant on December 6, 1911. Vernon H. Church of the local office, of the Indianapolis weather bureau, testified to the maximum and minimum temperature in said city from October 20 to December 6, 1911, and stated that the barometer at said station did not indicate any seismic disturbance on December 6, 1911. Witnesses testified to the effect of freezing weather on concrete; that Wolf & Ewing had previously successfully constructed reinforced concrete buildings; that many concrete buildings are constructed in the winter, and there are many ways known to the buildings trade for protecting concrete and preventing damage in cold weather; that a number of reinforced concrete buildings had been successfully erected in Indianapolis prior to December, 1911, some of which were similar in plan to the one which collapsed and injured appellant. The contract between appellee and W. H. Johnson & Son Company was introduced in evidence, and shows that such company was to furnish all material and labor and complete the heating plant and the plumbing for said building in accordance with the plans and specifications by a certain date for a specified sum of money. The evidence also shows the collapse and fall of the building and appellant's injury.

Appellant contends that, under the issues and the evidence, he (appellant) was employed by appellee “through Johnson & Son Company” to do plumbing in said building, and therefore appellee owed him the duty of furnishing him a safe place to work; that the work of constructing the building was undertaken at a time and in a manner that made it inherently dangerous, all of which was known to appellee, or could have been known by the exercise of ordinary care; that the rule of res ipsa loquitur is applicable, may be invoked by appellant, and requires appellee to explain the cause of the fall of the building and to show that it was not due to its negligence, in order to avoid liability.

[1] The undisputed evidence shows that appellant was employed by Mr. Skinner, the subcontractor, under W. H. Johnson & Son Company, who had contracted with appellee to do the plumbing and heating provided by the plans for the building. Therefore appellant was in no sense an employe of appellee, but must be held to be the servant of the independent contractor. The arrangement between Skinner and Johnson & Son Company did not change the relation of appellant to appellee.

[2] Johnson & Son Company, on the facts of this case, cannot be held to hold any relation to appellee other than that of independent contractor. The facts are undisputed, and the proposition therefore resolves itself into one of law to be declared by the court. Prest-O-Lite Co. v. Skeel, 182 Ind. 593-598, 106 N. E. 365, Ann. Cas. 1917A, 474.

Appellant being an employé of an independent contractor, this appeal is controlled by the decision of the Supreme Court in Prest-O-Lite Co. v. Skeel, supra, unless there is something in this case which distinguishes it from the former.

[3][4][5] The facts of this case do not warrant the application of the rule of res ipsa loquitur. This question was considered by the Supreme Court in the Skeel Case, supra, and the language employed is applicable to the case at bar, viz.:

“Undoubtedly there are instances where the proof of negligence sufficient to make out a prima facie case may be supplied by a presumption that arises from the occurrence of the injury. But in such cases it must appear that the instrumentality which inflicted the injury was in the control of the defendant, subject to his use and inspection, and also that the accident was one which in the ordinary experience of mankind would not have happened unless from the negligence of the defendant, or that of others for whose negligence he is legally responsible. Where the injury might well have resulted from any one of many causes, the plaintiff, by a fair preponderance of the evidence, must exclude the operation of those causes for which the defendant is under no legal obligation. The thing which causes the injury must be shown to have been under the management of the defendant before the doctrine of res ipsa loquitur applies. Indeed, the theory of the law in respect of this doctrine proceeds from the fact that the management or control of that which occasioned the injury is exclusively within the power of the defendant as between him and the plaintiff, and that it works no injustice by requiring him to explain.”

Appellant further asserts that the facts of this case bring it under an exception to the general rule applicable to employés of independent contractors who seek to recover damages for personal injuries from the owners of real estate for whom such contractors have undertaken to erect building or other structure. Such owners may be held...