Newburn v. Healey Real Estate & Imp. Co.

• Decision Date: 25 September 1915
• Docket Number: 5955.
• Citation: 86 S.E. 429,17 Ga.App. 217
• Parties: NEWBURN v. HEALEY REAL ESTATE & IMPROVEMENT CO.
• Court: Georgia Court of Appeals

86 S.E. 429

17 Ga.App. 217

NEWBURN v. HEALEY REAL ESTATE & IMPROVEMENT CO.

No. 5955.

Court of Appeals of Georgia

September 25, 1915

Syllabus by the Court.

A recovery for the homicide of the servant of a contractor, who had undertaken to construct the steel framework of a building cannot be had against the owner of the building in process of construction, if it appears that such owner had surrendered to such contractor full possession and complete control of the premises.

The obligations imposed by the building ordinance of the city of Atlanta upon contractors and owners erecting buildings are not by its terms imposed on the contractor and the owner jointly, but, where the contractor and the owner are acting independently, are imposed only upon the one or the other according to the degree of control either may exercise, or the nature and conditions of the contract.

The court did not err in sustaining the demurrer to the petition but, if the petition be so amended, before the remittitur from this court is made the judgment of the court below, as to set out a sufficient cause of action, it is allowed, as requested by counsel, that the case be reinstated.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Frances Newburn against the Healey Real Estate & Improvement Company. Judgment for defendant, and plaintiff brings error. Affirmed, with direction.

R. W Crenshaw and Anderson & Rountree, all of Atlanta, for plaintiff in error.

Chas T. & L. C. Hopkins and Rosser, Brandon, Slaton & Phillips all of Atlanta, for defendant in error.

WADE J.

Mrs. Frances Newburn brought suit against the Healey Real Estate & Improvement Company, a corporation, for the homicide of her husband. Her original petition was as follows:

"The petition of Mrs. Frances Newburn shows:

(1) The defendant is Healey Real Estate & Improvement Company, a corporation organized under and by virtue of the laws of Georgia, with its principal office in said state and county.

(2) Defendant has damaged petitioner in the sum of twenty-five thousand ($25,000.00) dollars in the manner hereinafter alleged.

(3) Petitioner shows that she is the widow of William J. Newburn, who was killed on or about June 3, 1913, by means of the following described negligence of the defendant:

(4) Petitioner shows that on or about the above-named date defendant, Healey Real Estate & Improvement Company, was constructing in the city of Atlanta, said county, a sixteen-story steel-frame building, now commonly known as the 'Healey Building.'

(5) Petitioner shows that upon said date her husband, William J. Newburn, was employed by the Bergendahl-Bass Construction Company, which had the contract for the iron work on said building, and was engaged in said work at said time.

(6) Petitioner shows that upon said date her husband was working upon the ninth floor of said building, in charge of a large derrick, with which lumber and material were being hoisted from the seventh to the eleventh floor of said building, to which latter height the steel work upon said building had progressed at that time.

(7) Petitioner shows that a lot of lumber had been hooked upon said derrick, that her husband had signaled the engineer to hoist away, and the load was being swung around the building toward the eleventh floor of said building.

(8) Petitioner shows that as said load of lumber swung about 30 feet above the head of her husband, who at the time was standing on the ninth floor of said building, giving instructions to the engineer, said load of lumber swung and struck the arm of said derrick, causing three of the planks from said load to slip from the chains holding them, and to fall and strike petitioner's husband, knocking him backwards and causing him to fall through an unplanked opening in said floor, two or three feet wide, and down through eight successive unplanked floors, and to be killed at the bottom.

(9) Petitioner shows that the opening through which her husband first fell was neither covered by a plank nor protected by a railing or guard of any kind, nor were the succeeding floors through which he fell, covered or guarded in any way.

(10) Petitioner shows that the following ordinance of the city of Atlanta, regulating the construction of buildings and defining the duties of the owners thereof with respect thereto, was in force on the date above mentioned, same being section 70 of the Building Code of the city of Atlanta: 'All contractors and owners, when constructing buildings, where the floors or filling in between the floor beams thereof are of fireproof material or brickwork, shall complete the flooring or filling in as the building progresses, to not less than three tiers of beams below that on which the iron work is being erected. If such buildings do not require filling in between the beams of floors with brick or other fireproof material, all contractors for carpenter work, or the owners of the buildings in the course of construction, shall lay the under flooring thereof on each story as the building progresses, to not less than within two stories below the one to which said building has been erected. When double floors are not to be used, such contractor, or the owner, shall keep planked over the floor two stories below the story where the work is being performed. If the floor beams are of iron or steel, the contractor for the iron or steel work of buildings in course of construction, or the owners of such buildings, shall thoroughly plank over the entire tier of iron or steel beams on which the structural iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron or steel work, and for the raising or lowering of materials to be used in the construction of such buildings, or such spaces as may be designated by the plans and specifications for stairways and elevator shafts. If elevating machines or hoisting apparatus are used within a building in course of construction, for the purpose of lifting material to be used in such construction, the contractors or owners shall cause the shafts or openings in such floor to be inclosed or fenced in on all sides by a substantial barrier, at least four feet in height, except on the side and floor where the material is being unloaded.'

(11) Petitioner shows that defendant owns said building just described, and the lot on which same is situated, and did own same at the time her husband was killed, and agreed in consideration of the permit to build, given it by the city, 'to conform to all city ordinances regulating the same,' a copy of which permit is hereto attached, marked 'Exhibit A,' to which reference is prayed as a part thereof.

(12) Petitioner shows that defendant was negligent in omitting thoroughly to plank or cover the floor on which her husband was at work and through which he fell.

(13) Defendant was negligent in omitting to cover, plank, or guard in some way, the hole or opening, two or three feet wide, through which her husband was knocked.

(14) Defendant was negligent in failing to have planked or covered the succeeding floors through which petitioner's husband fell to the ground.

(15) Defendant was negligent in failing to warn petitioner's husband of the existence of the opening in the ninth floor, and of the fact that the floors beneath were not covered or planked.

(16) Petitioner shows that the above-described negligence of the defendant was the approximate cause of her husband's death, without which same could not and would not have resulted.

(17) Petitioner shows that at the time of his death her husband was a strong, able-bodied man, thirty-two years of age, and earning five dollars per day.

(18) Petitioner shows that in no respect was her husband negligent, nor could he, by the exercise of reasonable care, have avoided the consequences of defendant's negligence."

The plaintiff filed an amendment which was as follows:

"(1) She strikes from said petition paragraph 6 and inserts in lieu thereof the following: 'Petitioner shows that upon said date her husband was working on the ninth floor of said building, assisting in the operation of a large derrick, located

on said ninth floor. She shows that a force of hands at that time, with the use of said derrick, were engaged in removing lumber from the seventh floor to the eleventh floor of said building, to which latter height the steel structural work at that time had progressed. Her husband was at the time actually engaged in receiving signals from a corps of hands on the seventh floor and conveying same to the engineer in charge of the derrick. Said lumber was being loaded on the seventh floor of said building by a gang of men in charge of the superintendent for Bergendahl-Bass Construction Company, and the way and manner in which said lumber was being loaded was not known to deceased.'

(2) For further amendment, petitioner inserts, between paragraphs 11 and 12 of her petition, paragraph 11 1/2, as follows: 'Petitioner shows that said building in process of construction was a steel-framed, fireproof office building, with the floors or the filling in between the floor beams thereof of fireproof material.' "

The defendant demurred to the original petition, and also demurred to the amended petition. The demurrer to the original petition insisted that no cause of action was set out, since the petition showed that no contractual relationship existed between the plaintiff's intestate and the defendant, and especially that the relationship of master and servant did not exist between them, since the petition affirmatively showed that the deceased was an employé of the Bergendahl-Bass- "Bass Construction Company, and that no obligation arising out of the relationship of master and servant was due...