Mahon v. Spence

• Decision Date: 24 June 1929
• Docket Number: 11,046
• Citation: 123 So. 349,11 La.App. 604
• Court: Court of Appeal of Louisiana — District of US
• Parties: MAHON v. SPENCE

123 So. 349

11 La.App. 604

MAHON v. SPENCE

No. 11,046

Court of Appeals of Louisiana, Orleans

June 24, 1929

Rehearing Refused October 21, 1929.

Writ of Certiorari and Review Refused by Supreme Court December 3 1929.

Appeal from Civil District Court, Parish of Orleans, Division "D." Hon. Porter Parker, Judge.

Action by Delia Mahon, wife of James W. Smith and James W. Smith against James W. Spence. Orange Grove Refining Company intervened.

There was judgment for plaintiffs and intervener and defendant appealed.

Judgment affirmed.

Normann Breckwoldt & Schwartz, of New Orleans, attorneys for plaintiffs, appellees.

Milner & Porteous, P. M. Milner, of New Orleans, attorneys for defendant, appellant.

OPINION

JANVIER, J.

James Richard Smith, a steel worker and riveter, was killed as the result of a fall from a building being erected for the Orange Grove Refining Company, near Braithwaite, Plaquemines Parish, La.

Spence had been employed to place in position and bolt together the various members constituting the steel framework of the building. His contract did not include the riveting together of those members, the work of riveting having been undertaken by the owners themselves.

Smith was employed by the owners as a riveter and his work commenced after the work of Spence was completed.

On the morning of December 1, 1924, Smith, while operating a riveting machine, attempted to brace himself on a steel bar known as a sagger bar, which had been placed in position by the employees of Spence, but which had been bolted only at one end, and which pulled out of its bearing on the other end, with the result that Smith fell to the ground about thirty-five feet below. The bar should have been bolted at both ends.

This suit is brought by the parents of the deceased, who seek to hold Spence liable on the ground that the death of their son was caused by the negligence of the employees of Spence in not properly bolting the bar.

It is admitted that the parents have already recovered from the employers of Smith compensation under the state compensation laws.

Smith's employers, by intervention, ask that the amount which they have paid in compensation be returned to them out of such judgment as may be awarded to plaintiffs.

Defendant resists payment, contending that there is no privity of contract between him and plaintiffs, and that, if plaintiffs have any cause of action, it is solely against the employers and results from the failure of the employers to furnish a safe place to work.

It is manifest that the proximate and sole cause of the accident was the negligence of Spence's employees in failing to properly bolt into place the sagger bar, against which Smith braced himself. Their failure in this regard created what seems to us to have been a trap, and if, as the evidence shows to be the case, in the usual course of events, it was customary for riveters, or other structural workers, to make use of these bars for bracing themselves, then it would appear that the failure of Spence's employees in this regard constitutes actionable negligence.

It is quite true that there was no contractual relationship between Smith and Spence, and that Spence was under no contractual obligation to furnish to Smith a safe place to work. However, it was Spence's duty to perform his contract in such a manner that those who might there-after come into contact with his work might not, by using it in the ordinary, customary way, be injured as a result of defects therein.

The situation is the same as if Spence's workmen had erected for the owner a scaffold to be used by the owner's employees. It is evident that those employees would have had a cause of action against the contractor for injuries sustained as a result of defects in the scaffold.

In such a situation as that to which we have just referred (Devlin vs. Smith, 89 N.Y. 470), the court held that a contractor who built a scaffold for a painter was liable for injuries sustained by employees of the painter, upon the ground that the contractor who built the scaffold invited the painter's workmen to use it, and on the ground that the contractor knew that the scaffold, if improperly constructed, was a most dangerous trap and that he knew that it was to be used by the workmen painting the building. The court further held that the contractor owed those workmen a duty, irrespective of their contract with their master.

The entire question is one not of contractual obligation, but of liability imposed by law.

We concede that this liability does not exist in favor of the general public, but only for the benefit of those who may, in the ordinarily contemplated course of events, be brought into contact with the defective work. That the law requires the master to furnish to the employee a safe place to work and that, therefore, the master, in the absence of compensation laws, might have been liable in tort, will not relieve Spence of his responsibility, because, to the extent that Smith was justified in using the sagger bar as a brace, Spence was, in effect, the agent of the employer for the purpose of making safe the place furnished for the...