McDonnell v. Wasenmiller

Decision Date26 November 1934
Docket NumberNo. 10048.,10048.
Citation74 F.2d 320
CourtU.S. Court of Appeals — Eighth Circuit

Harley H. Stipp, of Des Moines, Iowa, and Fred C. Foster, of Lincoln, Neb. (Perry W. Morton, of Lincoln, Neb., on the brief), for appellant.

L. Ross Newkirk, of Omaha, Neb. (Clifford L. Rein, of Lincoln, Neb., on the brief), for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

WOODROUGH, Circuit Judge.

This is an appeal by Robert E. McDonnell from a judgment for $20,000 against him entered upon the verdict of a jury in favor of plaintiff, the personal representative of Alexander Wasenmiller, deceased, in an action for damages for alleged negligence resulting in death. The decedent died from injuries inflicted by the escape of steam in the steam tunnel of the heating plant which supplies the University of Nebraska and the State Capitol, at Lincoln, Neb.

The action was begun in the state court against Robert E. McDonnell, senior member of the copartnership engaged in the business of civil engineering under the firm name of Burns & McDonnell Engineering Company (Rowland v. Shephard, 27 Neb. 494, 43 N. W. 344; First Nat. Bank v. Sloman, 42 Neb. 350, 60 N. W. 589, 47 Am. St. Rep. 707; Stone v. Neeley, 42 Neb. 567, 60 N. W. 965; Hanna v. Emerson, 45 Neb. 708, 64 N. W. 229; Independent Elevators v. Davis, 116 Neb. 397, 217 N. W. 577), the copartnership of Grant & Fulton and its individual members, and the Board of Regents of the University of Nebraska, the employer of the deceased, by reason of the right of subrogation which accrues to the Board under the Nebraska Workmen's Compensation Act. Comp. St. Neb. 1929, § 48-118; Bronder v. Otis Elevator Co., 121 Neb. 581, 237 N. W. 671. On Saturday, March 11, 1933, an order dismissing the case without prejudice was entered in the state court reciting that it was "by stipulation" and requiring each party to pay his own costs. On the following Monday, March 13th, at the same term of the court, motions were filed by the plaintiff and the defendant, University of Nebraska, to vacate the order of dismissal and reinstate the case. Objections were filed to the motions and after a hearing the state court sustained the motions and reinstated the case. Thereupon Robert E. McDonnell obtained removal to the federal court and some months later filed a so-called supplemental answer to the plaintiff's petition in which he alleged that the order of the state court vacating the dismissal and reinstating the case was void for want of jurisdiction of the court and that the order of dismissal should be held to bar further proceedings in the case. The Federal District Court sustained a motion to strike the supplemental answer from the files and there was a jury trial resulting in the judgment against Robert E. McDonnell, from which he prosecutes this appeal.

It appears that a Joint Commission, consisting of the Capitol Commission and the Board of Regents of the University of Nebraska, was created, pursuant to statute, for the purpose of providing a heating plant to serve the University and the State Capitol at Lincoln. In May, 1929, the Commission engaged the services of Burns & McDonnell Engineering Company to make the necessary preliminary estimates, surveys, and investigations of the proposed power, heat, and light plant improvements; to "prepare detailed working plans and complete specifications covering all parts of the final work for which funds are authorized"; "to furnish the contract forms for contractors"; "to attend the letting of contracts and construction"; to advise the Joint Commission in the "proper selection of materials and equipment"; "to furnish a competent and experienced engineer for the supervision of the proposed improvement," such supervising engineer's services to begin "at the notification of the owner that the contractor is ready to begin construction work" and to "terminate at the final completion of construction work." Upon completion of the construction work the engineers agreed to conduct final operating tests of the entire completed works.

Grunwald & Co. was awarded a contract for the construction and installation of the heating plant equipment in a building on the campus of the University and W. H. Pearce Company was awarded a contract for the construction and installation of the underground conduit system from the Capitol to the heating plant. The north end of the conduit piping ran through a concrete tunnel 7 feet high and 8 feet wide for about 1,100 feet and the conduit system when connected with the heating plant formed the complete heat generating and conveyor system.

Burns & McDonnell Engineering Company made all the preliminary surveys and estimates and prepared the plans and specifications for the construction work on the whole project. A representative of the company met with and advised the Commission on the letting of the contracts, approved the contract with W. H. Pearce Company, prepared the Grunwald contract, and, through their supervising engineer, Mr. Meseck, had constant supervision of the work from September 23, 1929, until December, 1930.

The Commission also entered into an agreement with Grant & Fulton, local engineers, by which the latter were to inspect the materials and supervise the installation of the conduit line. The agreement provided that they were to collaborate with the firm of Burns & McDonnell, "who are to furnish consultant service on the conduit work which firm will specify the sizes of pipe and conduit and approve design."

W. H. Pearce Company completed the conduit line from the Capitol to the heating plant about February 1, 1930. The north end of this conduit line consisted of a section of 10-inch pipe about 20 feet long extending from the last expansion joint in the tunnel to a point just beyond the south wall of the basement of the heating plant. At that time construction of the heating plant by the Grunwald Company had not begun, hence no connection or joinder could be made with the pipe line thus completed by the Pearce Company. In February, 1930, Mr. Lambert, of Burns & McDonnell Engineering Company, inspected the conduit work done under the Pearce contract and approved it for final payment. On June 19, 1930, after another inspection, Mr. Lambert directed the W. H. Pearce Company to do certain work of tightening, replacing, and packing of joints. Inspection of the conduit was made after the accident by representatives of the same company and it submitted a formal report to the Commission containing recommendations for certain alterations.

The construction of the heating plant by Grunwald & Co. was begun in March, 1930, and continued until September 6, 1930 (the date of the explosion here involved), under the constant supervision of Mr. Meseck, supervising engineer for Burns & McDonnell. The connection between the main pipe line in the heating plant with the north end of the conduit line, installed by Pearce Company, was made in August, 1930. The pipe within the plant, as installed by Grunwald & Co., ran from the boilers west along the ceiling of the basement. It then dropped down from the ceiling at a right angle for about 7 feet and turned horizontally to join with the end of the conduit line left open by the Pearce Company just inside the wall of the plant. There the connection with that end of the conduit pipe was made by means of a steel flange. The other end of this last section of conduit pipe rested in an expansion joint in the tunnel, but no anchorage of any kind had been installed by the Pearce Company to hold it in the expansion joint. It was ultimately joined to the pipe connecting the heating plant by some workmen in the employ of the University. They installed an anchor consisting of a 5/8 inch steel cable which they passed two and one half times around the vertical section of the Grunwald pipe within the heating plant just above the elbow at the connection between the Pearce pipe and the Grunwald pipe, each end of the cable passing through a sleeve in the wall and out into the tunnel. One end of this cable was attached by clamps to a strap or bracket on the wall of the tunnel secured by bolts imbedded in the concrete. The other end of the cable was fastened to a similar strap on the wall by means of a turnbuckle with hooks on each end, one hook passing through the loop on the end of the cable and the other passing through an eye in the strap on the tunnel wall. The hook on the turnbuckle, which passed through the loop in the cable, was about 5/8 inch in diameter and was hand forged from wrought iron. Under whose supervision the installation was made is a matter in dispute. No attempt has been made to defend the design, materials, or strength of the anchor or hook. The plans and specifications of the heating plant required the conduit line to withstand a pressure of 250 pounds per square inch and a temperature of 150 degrees superheat. Under such operating conditions it was recognized that proper anchorage was a problem of engineering design and computation of the strength sufficient to hold the pipe in the expansion joint, with a proper allowance for a safety factor.

At about 1 o'clock in the afternoon of September 6, 1930, the construction work having been completed, steam was turned into the conduit line. About 4:30 p. m. the hook on the turnbuckle which passed through the loop in the cable of the anchor broke, permitting the pipe to pull out of the last expansion joint in the tunnel and the steam to escape in a violent explosion. Mr. Wasenmiller and a fellow workman, employees of the University, who were in the tunnel at the time, were severely scalded and died of their injuries within a few hours.

The petition set forth several grounds of alleged negligence, but only one was submitted to the jury under the instructions of the court, to wit: Was the Burns & McDonnell Engineering Company negligent in allowing the installation of this turnbuckle or...

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7 cases
  • Peredia v. HR Mobile Servs., Inc., F074083
    • United States
    • California Court of Appeals Court of Appeals
    • July 30, 2018
    ...a reasonably safe place to work. (Bujol v. Entergy Services, Inc. (La. 2004) 922 So.2d 1113, 1133, 1138 (Bujol ).)3 In McDonnell v. Wasenmiller (8th Cir. 1934) 74 F.2d 320, the court upheld a judgment against a civil engineer whose firm actively supervised installation of heating units. (Id......
  • Pastorelli v. Associated Engineers, Inc.
    • United States
    • U.S. District Court — District of Rhode Island
    • July 10, 1959
    ...but it was his duty to exercise reasonable care to see that they did so." For similar statements of this rule, see McDonnell v. Wasenmiller, 8 Cir., 1934, 74 F.2d 320; United States for Use and Benefit of Los Angeles Testing Laboratory v. Rogers & Rogers, D.C.Cal.1958, 161 F.Supp. 132; Cata......
  • Goade v. Vollrath, 694.
    • United States
    • U.S. District Court — Western District of Missouri
    • December 24, 1948
    ...Federal Court, must, as far as possible, recognize and give effect to regularity of proceedings had in the State Court. McDonnell v. Wasenmiller, 8 Cir., 74 F.2d 320. In doing so, the Federal Court will respect the process of the State Court. Paragon Coal & Coke Co. v. J. W. Kirby & Sons Co......
  • Hand v. Rorick Const. Co., 38701
    • United States
    • Nebraska Supreme Court
    • May 4, 1973 erect a barricade in front of an opening in the structure which was under the control of the general contractor. In McDonnell v. Wasenmiller, 8 Cir., 74 F.2d 320, the court upheld a jury verdict against the engineer in charge of and who directly supervised the installation of an expansio......
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