May v. Vardaman Mfg. Co., 42343

• Decision Date: 11 June 1962
• Docket Number: No. 42343,42343
• Citation: 244 Miss. 261,142 So.2d 18
• Parties: Rosie MAY v. VARDAMAN MANUFACTURING COMPANY, Inc., et al.
• Court: Mississippi Supreme Court

Page 18

142 So.2d 18

244 Miss. 261

Rosie MAY v. VARDAMAN MANUFACTURING COMPANY, Inc., et al.

No. 42343.

Supreme Court of Mississippi.

June 11, 1962.

J. M. Busby, Houston, for appellant.

Daniel, Coker & Horton, Jackson, Armis E. Hawkins, Houston, for appellees.

ARRINGTON, Justice.

The appellant, Rosie May, plaintiff below, the widow of Ebin Lee May, deceased, filed suit in the Circuit Court of the First Judicial District of Chickasaw County against Vardaman Manufacturing Company, Inc., and J. L. Kendall to recover damages for the alleged wrongful death of her husband as the result of the collapse of a building upon which he was working as a carpenter. From an adverse judgment, appellant appeals.

The record discloses the following: In October 1959, the Vardaman Manufacturing Company, Inc., acting through its executive vice president, Gatlin Gilder, entered into an oral contract with J. L. Kendall to construct two buildings for the corporation. One of the buildings was to be 150 feet long and 60 feet wide; the other, a shed 150 feet long and 60 feet wide, both buildings to have a concrete base; the smaller building to have a concrete base eight feet deep for the reason that this building was to be used to house heavy machinery. J. L. Kendall had constructed a number of buildings for the Vardaman Manufacturing Company prior to entering into this contract and he was told to build it 'like the rest of them.' The larger building had been completed and a barrel roof was being put on the smaller building or shed by Ebin Lee May and other persons when the building collapsed and resulted in the injury and death of May.

In the declaration the appellant alleged that 'Gilder, manager and agent of the Vardaman Manufacturing Company, Inc., who undertook to draw and furnish the architectural plans and specifications for the construction of the building * * *, was not a competent architect to perform that service; that he lacked training in architecture to provide plans and specifications for the construction of said building; that he did not have the ability and knowledge to provide plans and specifications for the safe construction of the building on which Ebin Lee May, husband of plaintiff, was working. That it was negligence for the Vardaman Manufacturing Company, defendant, to adopt plans and specifications made by its manager, Gatlin Gilder, when he was incompetent, for the construction of said building, which plans were unsafe and inadequate, which act of negligence on the part of defendant was the direct and proximate cause of death of Ebin Lee May, who was killed in the crash of the building aforesaid, which plans were inadequate, unsafe, and dangerous.'

The bill also alleged that J. L. Kendall, the contractor, was guilty of negligence based on the fact that he did not exercise ordinary care to furnish his servant a reasonably safe place in which to work.

Vardaman Manufacturing Company answered and in part admitted that Gilder, its manager, was not a competent architect; that he had no experience and training to provide plans and specifications for said building, and denied that Gilder furnished, or attempted to furnish, such plans; that he engaged the services of the defendant, J. L. Kendall, for the very reason that Gilder lacked the experience in such matters, and denied that such plans and specifications were adopted by it, and that such plans were made.

The appellee Kendall filed an affirmative defense that the deceased was an experienced carpenter and builder, and had worked regularly on said building from the beginning of its construction; that the deceased assumed the risk pertaining to the work. It was admitted in the pleadings filed by plaintiff that Ebin Lee May was an employee of J. L. Kendall, an independent contractor, who was constructing the said building for Vardaman Manufacturing Company.

The evidence in this case shows without dispute that the contract entered into was oral and that the building was...