Martin v. Anniston Foundry Co.

• Decision Date: 05 November 1953
• Docket Number: 7 Div. 179
• Citation: 259 Ala. 633,68 So.2d 323
• Parties: MARTIN v. ANNISTON FOUNDRY CO.
• Court: Alabama Supreme Court

Page 323

68 So.2d 323

259 Ala. 633

MARTIN v. ANNISTON FOUNDRY CO.

7 Div. 179.

Supreme Court of Alabama.

Nov. 5, 1953.

Merrill, Merrill, Vardaman & Matthews, Anniston, for appellant.

Geo. W. Yancey and London & Yancey, Birmingham, for appellee.

LAWSON, Justice.

In this case the plaintiff, W. T. Martin, received serious bodily injuries when he fell to a concrete floor from a scaffold on which he was standing while painting the interior of a building owned by the defendant, Anniston Foundry Company, a corporation.

Plaintiff was an employee of one J. A. Biddle, who shortly prior to April 15, 1950, entered into an agreement with Anniston Foundry Company to paint one of its buildings.

The cause of the accident was the breaking of a steel hook which was made in the blacksmith shop of the foundry company out of steel belonging to that company.

There is only one count in the complaint. Plaintiff seeks to fasten liability for his injuries on the foundry company on the theory that it constructed or prepared the hook which broke, thereby causing plaintiff to fall.

We have not been favored in brief filed here on behalf of Martin with any discussion of the theory upon which liability for Martin's injury is sought to be placed on the foundry company. The opening sentence of appellant's brief reads: 'This case is a damage suit based on the manufacturer's liability doctrine and was tried before a jury in the Circuit Court of Calhoun County, Alabama, on to-wit, May 15, 1952.' There is no further discussion of that doctrine and no authority bearing thereon is cited. In view of the reference in appellant's brief to the 'manufacturer's liability doctrine' and the language of the complaint, we assume that plaintiff seeks recovery against the defendant on the principle that 'one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the parties or not.' see Jefferson Standard Life Ins. Co. v. Watson, 242 Ala. 181, 5 So.2d 639; Sterchi Bros. Stores, Inc., v. Castleberry, 236 Ala. 349, 182 So. 474.

After its demurrer was overruled, the defendant pleaded the general issue in short by consent in the usual form.

There was jury verdict in favor of the plaintiff in the sum of $10,000. Judgment was in accord with the verdict.

On motion of defendant duly filed, the trial court entered a judgment setting aside the verdict of the jury and the judgment thereon and granting to defendant a new trial. From that judgment the plaintiff has appealed to this court.

It appears from the record that the trial court entered the judgment appealed from on the ground that it had erred in refusing to give the general affirmative charge in favor of the defendant, which charge defendant had duly requested in writing.

Was the defendant, under the evidence presented, entitled to the general affirmative charge?

In considering that question, we must review the tendencies of the evidence most favorable to plaintiff, regardless of any view we may have as to the weight of the evidence, and must allow such reasonable inferences as the jury was free to draw, not inferences we may think the more probable. Duke v. Gaines, 224 Ala. 519, 140 So. 600; Tyler v. Drennen, 255 Ala. 377, 51 So.2d 516; Carraway Methodist Hospital v. Pitts, 256 Ala. 665, 57 So.2d 96; Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530. See Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224, where we applied this rule, although stated in somewhat different language, where the plaintiff appealed from a judgment granting defendant's motion for a new trial on the ground that error had occurred on the main trial in the failure of the trial court to direct a verdict for defendant.

The defendant, Anniston Foundry Company, was engaged in the business of manufacturing pipe and pipe fittings for sale to the public. It was not a fabricator of steel for sale. W. F. Deyo was president and active head of the foundry company and H. W. Little was its secretary. L. C. Burke was superintendent of the plant and John L. Wilson the master mechanic in charge of maintaining the company's buildings, machines and equipment. The foundry company operated a blacksmith shop in connection with its maintenance department. Nothing was made or repaired in the blacksmith shop for the public. It was used only for general repair work for the foundry. Wilson, the master mechanic, had direct supervision of the blacksmith shop, but the work therein was done by G. W. Brickhouse and a negro helper by the name of Jacobs. Brickhouse was trained as an automobile mechanic and most of his work was done in the company's garage. Jacobs was only a helper who worked under Brickhouse.

H. W. Little, the secretary, represented the company in entering into the painting contract with Biddle. Under the terms of that contract Biddle was to furnish all paint, labor, material and equipment. Biddle was not subject to the control or supervision of the foundry company and the company neither exercised nor attempted to exercise any such control or supervision. It is conceded that Biddle was an independent contractor and not a servant, agent or employee of the foundry company.

Shortly prior to three o'clock on Saturday afternoon, April 15, 1950, Biddle went to the premises of the foundry company for the purpose of getting his equipment in readiness to begin painting on Sunday morning, April 16. After his arrival at the defendant's plant, Biddle discovered he lacked certain types of steel hooks with which to construct and hang a scaffold on which the painters were to stand while painting the higher parts of the structure. Without consulting Deyo, Little, Burke, Wilson, or anyone else in authority, Biddle went to the foundry company's blacksmith shop and solicited the assistance of Brickhouse in the making of the hooks needed. Brickhouse had almost completed his day's work but finally agreed to assist Biddle for a short period of time after Jacobs, the negro helper, agreed to remain after working hours to assist Biddle. Brickhouse took Biddle to a 'scrap pile' where large and small hard steel rods were piled. Biddle selected the pieces of steel which he wanted to use. He selected the small rods. Brickhouse had nothing to do with the selection of the steel.

Brickhouse and Biddle returned to the blacksmith shop where they, together with Jacobs, began to make the hooks. Biddle drew on the ground a design or designs of the types of hooks he needed, and the evidence supports no reasonable inference other than the work which Brickhouse and Jacobs did at that time was done under the direct supervision and control of Biddle. Brickhouse left before the hooks were completed, but Jacobs remained to be of assistance. For their services Biddle paid Brickhouse two dollars and Jacobs one dollar. No money was paid by Biddle to the foundry company for the services of Brickhouse and Jacobs or for the materials used. As heretofore indicated, under the terms of the painting contract entered into by Biddle and the foundry company, there was no obligation on the part of the foundry company to furnish any material or equipment to Biddle.

Four sets of hooks were made on the afternoon of April 15, 1950. Each set consisted of two hooks of different construction. One hook was so designed that one end of it could fit over a beam and a rope could be placed through an opening in the other end. The other hook was triangular in shape and is referred to in the evidence as a saddle. The 'saddle' hooks were designed to be attached to the lower end of the rope so that boards might be placed across them for the painters to stand...