Pafford v. J. A. Jones Const. Co.

• Decision Date: 08 June 1940
• Docket Number: 546.
• Citation: 9 S.E.2d 408,217 N.C. 730
• Parties: PAFFORD v. J. A. JONES CONST. CO.
• Court: North Carolina Supreme Court

9 S.E.2d 408

217 N.C. 730

PAFFORD v. J. A. JONES CONST. CO.

No. 546.

Supreme Court of North Carolina

June 8, 1940

Civil action to recover damages sustained by plaintiff when he fell down an open elevator shaft in a building being constructed by defendant as general contractor for Belk Brothers Company.

The defendant contracted to construct a five-story addition to the building of Belk Brothers Company in Charlotte, N. C. It let the subcontract for the wall plastering work to D. Draddy who was accountable to the defendant for the result only.

Plaintiff was a salesman for Certainteed Products Corporation, which sold wall plastering and similar products to dealers and distributors. Plaintiff's employer had stored at Plasterco, Virginia, a quantity of its products, the use of which it intended to discontinue and which it wished to sell before December 31, 1937. Plaintiff was instructed to attempt to dispose of this material prior to that date. Acting on these instructions plaintiff induced Wiggins Lumber Company to purchase one car of such material on condition that the plaintiff would first find a purchaser therefor.

In compliance with this agreement plaintiff induced Draddy, the subcontractor, to purchase a carload of material from the Wiggins Lumber Company. He agreed to purchase on plaintiff's assurance as to the quality of the merchandise and on condition that it was up to standard and not defective; that he would receive a discount and that plaintiff would, at the first opportunity, inspect the material as it was being actually used on some project or construction job.

The subcontractor notified the plaintiff that he would be using the material on the morning of February 22d. Accordingly plaintiff went to the third floor of the building under construction on the morning of February 22d and inspected the application of the plastering for a period of about an hour. He observed the men working and that the material was not satisfactory in that it was setting too fast, which indicated that it was defective and not up to standard. He returned to the building on the same afternoon and made inquiry of the workmen as to the material. He was told in reply that the material was no better. He then asked where the bags of plastering were kept. Having received information that they were kept in the storage room plaintiff went to inspect the bags.

The space used as the storage room was back of the passenger elevator and was the service room into which the freight elevator opened. It was formed by the stairway wall, the back walls and the elevator shaft walls. There was one elevator shaft being constructed for future use and a door thereto opened into the room being used as a storage room. This shaft was being used for the builders' service elevator. There were three windows in the wall to this room.

After plaintiff had entered the room and inspected the bags he started to leave. From then on he has a complete lapse of memory until sometime after the accident. He was found at the bottom of the elevator shaft which was being used for the contractor's temporary material elevator.

Plaintiff testified that it was cloudy and was too dark in that section of the building to do any work without artificial light; that there was no artificial light, no guard around the elevator shaft; that he did not see the elevator shaft opening; and that it was so dark in there he could not see a hole in the floor. He testified that the difference in the light condition in the storage room and the other part of the building "was almost the difference between daylight and dark or daylight and dusk, or daylight and dusk at least." He further testified that there was no artificial light, no guard around the elevator shaft; that he did not see the elevator shaft opening and that it was so dark in there he could not see the hole in the floor.

At the conclusion of all the evidence the defendant renewed its motion to dismiss as of nonsuit first made when plaintiff rested. The motion was allowed and judgment was entered dismissing the action as of nonsuit. Plaintiff excepted and appealed.

G. T Carswell and Joe W. Ervin, both of Charlotte, for plaintiff-appellant.

J Laurence Jones and Stewart & Moore, all of Charlotte, for defendant-appellee.

BARNHILL Justice.

Certain pertinent facts appearing on this record require consideration in determining the question here presented.

1. The plaster material plaintiff was inspecting was sold to the subcontractor by the Wiggins Lumber Company and not by plaintiff. Plaintiff testified: "I turned this plaster over to T. J. Wiggins Lumber Company and they paid for it, less this credit, and they in turn sold it to Draddy *** any credit we gave in this thing was given to the Wiggins Lumber Company, and they paid us. They could have sold the material to whom they wanted to."

2. There was no contract relation between plaintiff and either the defendant or Draddy. If the material proved to be defective Wiggins Lumber Company was required to reimburse the subcontractor. Plaintiff testified: "Mr. Draddy's contract and order was with the T. J. Wiggins Lumber Company."

3. Plaintiff's promise to inspect the material as it was being applied on this or some other job was for his and his employer's benefit, to induce Draddy to make the purchase from Wiggins Lumber Company and to thus enable plaintiff's employer to dispose of a stock of doubtful value. "It was understood between Mr. Draddy and myself that I would personally inspect this material at the first opportunity I had. At the first opportunity I had after it arrived on some project or construction job. That is the only place that I could inspect it, at a place where it was being used, and by seeing it myself and talking with the men who used it, and Mr. Draddy, or any plastering contractor." This promise to inspect was one of the inducements the plaintiff offered Draddy to persuade him to change brands and to buy from Wiggins Lumber Company the material plaintiff was seeking to sell to that company.

4. Plaintiff had twice inspected the work and talked with the employees and had ascertained that some of the material was defective before he went to the storage room. He was informed as to the location of the storage room at his request by one of the workers. When the plaintiff visited the building on the morning of February 22d he found that: "The material was setting too fast, which is an indication of defective material, or not up to standard. It was not working properly on trial. I stayed there about an hour." When he went back that afternoon he found that it was no better. "When they told me that, I asked them where they were keeping the bags of plaster. From what they told me, I found that the bags were back of the stairway toward the old building on the Trade Street side from where they were working. I went *** to find the bags."

5. Plaintiff had over 17 years of experience in the plastering business during which time he frequently visited buildings in the process of construction, and well knew the conditions to be encountered under such circumstances. Likewise, he saw the "Keep Out" and other warning signs, both on the outside and on the inside of the building.

6. When the plaintiff entered the storage room where the material was kept pending its use, he not only knew that the building was in the process of construction but he likewise knew that the room into which he was entering was dark and without artificial light.

Plaintiff devotes much of his brief to a discussion of the master and servant doctrine of liability, contending that under the facts and circumstances of this case the plaintiff was an employee--if not of the defendant, then of the subcontractor--and that defendant was under obligation to render him the same protection it owed to other employees of Draddy. This position cannot be maintained. In the first place no such relationship is alleged. On the contrary plaintiff expressly alleges that he was invited to go and inspect the material as it was in the process of use and application by the subcontractor. Secondly, the evidence does not tend to establish such relationship. As to Draddy, neither he nor his employer was even the vendor of the material.

It had been purchased from the dealer on plaintiff's assurance that the dealer and his company, through the dealer, would guarantee the quality and that he would inspect, on this or some other job, while the plastering was being used, to aid in discovering whether it was defective.

The record is devoid of suggestion that the cause was tried on this theory in the Court below.

Furthermore, if he was an employee then, as defendant aptly argues, the question as to the applicability of the Workmen's Compensation Act, Code 1935, § 8081(h) et seq., would immediately arise.

Plaintiff was on the premises in the interest of his employer and for his own benefit to make the inspection he had promised as an inducement to Draddy to purchase the material from the Wiggins Lumber Company. His promise was to inspect, at the first opportunity, on some project or construction job. This simply happened to be the first opportunity and the first project where the material was being used.

To constitute one an invitee of the other there must be some mutuality of interest. Crossgrove v. Atlantic C. L. R Co., 30 Ga.App. 462, 118 S.E. 694; Petree v. Davison-Paxon-Stokes Co., 30 Ga.App. 490, 118 S.E. 697. Usually the invitation will be inferred where the visit is of interest or mutual advantage to the parties, while a license will be...