MacDonald Engineering Company v. Hover

• Decision Date: 21 June 1961
• Docket Number: No. 16498.,16498.
• Citation: 290 F.2d 301
• Parties: MacDONALD ENGINEERING COMPANY, Appellant, v. Robert D. HOVER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

290 F.2d 301 (1961)

MacDONALD ENGINEERING COMPANY, Appellant, v. Robert D. HOVER, Appellee.

No. 16498.

United States Court of Appeals Eighth Circuit.

May 19, 1961.

Rehearing Denied June 21, 1961.

Paul W. Steward, Des Moines, Iowa, A. B. Crouch, Des Moines, Iowa, and David R. Hardy, Kansas City, Mo., on the brief, for appellants.

James G. McDowell, Jr., Des Moines, Iowa, for appellee.

Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

Defendant MacDonald Engineering Company (hereinafter MacDonald or defendant) appeals from final judgment for $75,000 based upon jury verdict entered against it in an action for personal injuries brought by plaintiff Hover. Jurisdiction based upon diversity of citizenship and the requisite amount is established.

Plaintiff is an electrician employed by Dewey Electric Company (Dewey). Pursuant to Dewey's orders, plaintiff was during the fall of 1956 engaged in doing electrical work on a series of silos defendant was constructing under contract for Northwestern States Portland Cement Company (Northwestern) at its Mason City, Iowa, plant. As the weather grew colder, plaintiff used a salamander, a smudge pot type of heating device, to keep him warm while working. On November 28, 1956, the salamander plaintiff had been using was missing. The weather that day reached a maximum temperature of 35°. After working for a time, plaintiff and his helper conducted a search for a salamander, locating a lighted salamander in a nearby silo which was part of the same construction project. After inspecting the salamander and noting that a missing handle had been replaced by a wire loop and after testing said wire loop, plaintiff and his helper started to move the salamander to his worksite. The bottom of the handle on the salamander is designed to be equipped with a safety clamp which subsequent investigation showed to be missing. Plaintiff testified that he did not know of this safety clamp construction or of the fact that the lower part of the device separated from the upper part. Because of the absence of a safety clamp, the bottom of the salamander separated from the top causing burning oil to spill upon and seriously burn and injure the plaintiff. The evidence clearly supports a finding that the defect in the salamander was the proximate cause of plaintiff's injuries.

Defendant, at the close of plaintiff's evidence and at the close of all the evidence, moved for a directed verdict upon the grounds that plaintiff had failed to prove freedom from contributory negligence,¹ and that no negligence was proven which could be chargeable to the defendant.

After verdict, defendant filed timely motion for judgment n. o. v. on the same grounds. All of said motions were overruled. Memorandum opinion setting out the court's reasons for overruling the motion for judgment n. o. v. is reported in 183 F.Supp. 427.

Defendant urges upon this appeal that the court erred in overruling its motions for directed verdict and judgment n.o.v. for the following reasons:

(A) Plaintiff wholly failed to prove that the defendant ever owned, possessed, controlled or had any connection whatever with the salamander involved in the accident.

(B) Plaintiff was no more than a mere licensee, to whom defendant owed no duty as to the condition of the salamander.

(C) There is no breach of duty where danger is obvious.

We shall dispose of the directed verdict issue before considering other errors asserted by the defendant.

In reviewing a ruling upon a motion for directed verdict or motion for judgment n.o.v. upon the ground of the lack of substantial evidence to support a verdict, it is well established that the party against whom the motion is directed is entitled to have the evidence viewed in the light most favorable to him and that he is entitled to the benefit of every inference that may be reasonably drawn from the evidence. Where, as here, the motion is made by a defendant, the motion cannot be sustained "unless it is determined that there was no reasonable basis upon which findings of negligence and defendant's ultimate liability for plaintiff's injuries could be based." Clinton Foods, Inc. v. Youngs, 8 Cir., 266 F. 2d 116, 117-118. See Gowing v. Henry Field Co., 225 Iowa 729, 281 N.W. 281, 283.

In Anglen v. Braniff Airways, 8 Cir., 237 F.2d 736, 740, we stated:

"In a jury case, where conflicting inferences reasonably can be drawn from evidence, it is the function of the jury to determine what inference shall be drawn. * * * It is only where the evidence is all one way, or so overwhelmingly one way as to leave no doubt what the fact is, that a court is justified in taking a case from a jury." See Commissioner v. Duberstein, 363 U.S. 278, 290, 80 S.Ct. 1190, 4 L.Ed.2d 1218.

In Bullock v. Safeway Stores, 8 Cir., 236 F.2d 29, 31, in holding a fact question was presented on plaintiff's status as an invitee, we said:

"It is the general rule that, if the evidence in a particular situation, either on its direct elements or in its reasonable implications, contains room for fair legal doubt as to whether the status of an injured plaintiff is that of a licensee or an invitee, the question is one of fact for the jury. See 65 C.J.S., Negligence, § 272."

Defendant's right to a directed verdict must be viewed in the light of the standards just stated.

Before separately considering defendant's contentions, some additional factual background should be set forth which is relevant to the issues raised by this appeal. MacDonald was employed by Northwestern to do engineering and designing work for cement storage silos and a pack house Northwestern was planning to construct as an addition to its existing Mason City, Iowa, plant. Northwestern was desirous of accelerating the commencement of the silo construction. On June 17, 1956, by letter of proposal accepted by Northwestern, MacDonald agreed to construct a series of silos which it had designed, the contract providing in part:

"We now propose to furnish all labor, tools, materials and equipment to construct the silos only, including the structure and foundations, machinery and Fuller-Kinyon pumps and compressors, and transport line from the finish mill to the silos as outlined herein.

"This proposal does not include the construction of the packhouse and baghouse, roads, track work or plumbing.

* * * * *

"We will construct the building and install the equipment in accordance with the approved plans and specifications."

Thereafter Northwestern awarded a contract for the construction of an adjoining pack house for which MacDonald had furnished the plan to Henkel Construction Company (Henkel). Henkel entered into a sub-contract agreement specifically covering only the pack house with Dewey for all electrical work. It is defendant's position that Dewey's sub-contract covered the electrical work on the silos as well as the pack house and that the electrical work on the silos was not a part of defendant's contract obligation with Northwestern.

We now reach the consideration of defendant's points in support of its contention that it is entitled to a directed verdict.

We believe that point (A) asserting that there is no substantial evidence to support a finding that defendant owned, possessed or controlled the salamander involved in the accident is without merit. It is true that defendant has offered evidence that has not been squarely contradicted to the effect that it did not own the salamander. A rather close question is presented whether the presumption arising from defendant's possession of the salamander is sufficient under the evidence to establish ownership. However, defendant would be equally responsible, other elements creating liability being present, if it possessed or controlled the use of the salamander. There is substantial evidence that it did. It is undisputed that a number of salamanders meeting the description of the one causing the injury were obtained by the defendant from Northwestern's warehouse and were used by it to cure the cement it had poured and that the salamanders were filled and serviced at least at times by the defendant. The testimony shows salamanders were designed primarily for curing cement and not for providing heat for workmen, but there is substantial evidence establishing that many workmen, including admitted employees of defendant, were for a considerable period using the salamanders for keeping themselves warm while at work.

Plaintiff, for a number of weeks prior to the accident, used a salamander at his work and found the one that caused the injury upon the premises under control of the defendant as primary contractor on the premises. The evidence also shows that Dewey, plaintiff's immediate employer, owned or furnished no salamanders and that Henkel's salamanders were of a different type. We believe there is adequate evidence to support a finding that the defective salamander was in the possession and under control of the defendant at the time of the accident.

Point (B) raises the important issue of whether defendant was under any obligation to furnish plaintiff with a safe place to work or to see that the equipment provided was safe. The answer to this question turns upon the relationship between the plaintiff and defendant. If the plaintiff was a trespasser or a bare or mere licensee, defendant under the circumstances here presented would owe him no duty to provide safe equipment. Plaintiff contends that he was an invitee of defendant, or in the alternate, at least a licensee by invitation, express or implied.

The Supreme Court of Iowa, in the recent case of Reasoner v. Chicago, Rock Island and Pacific R. Co., 251 Iowa 506, 101 N.W.2d 739, 741, states, "The nature of the entrance of a person upon the property of another can be divided into four categories. 1. Trespass. 2. Bare licensee. 3. Implied or express licensee. 4. Invitee." Cases supporting such classifications are cited. The court...