Paul Hardeman, Inc. v. J. I. Hass Co.

• Decision Date: 07 April 1969
• Docket Number: No. 5--4852,5--4852
• Citation: 439 S.W.2d 281,246 Ark. 559
• Court: Arkansas Supreme Court
• Parties: PAUL HARDEMAN, INC., et al., Appellants, v. J. I. HASS COMPANY, Inc., et al., Appellees.

Page 281

439 S.W.2d 281

246 Ark. 559

PAUL HARDEMAN, INC., et al., Appellants, v. J. I. HASS COMPANY, Inc., et al., Appellees.

No. 5--4852.

Supreme Court of Arkansas.

April 7, 1969.

Rehearing Denied May 5, 1969.

Wright, Lindsey & Jennings, Little Rock, for appellants.

Rose, Meek, House, Barron, Nash & Williamson, Little Rock, for appellees.

BROWN, Justice.

Plaintiffs below were Paul Hardeman, Inc., Fischbach and Moore, Inc., and Morrison-Knudsen, Inc., prime contractors under a joint venture in the construction of missile launch facilities in White County. The defendant J. I. Hass Company, Inc., was a painting subcontractor for the joint venture or prime contractor. William Turpin, an employee of Hass, was injured when he fell while painting near the top of a vent pipe. The prime contractor admitted negligence in not properly securing the vent pipe at its base and paid Turpin $50,000. Plaintiffs sued Hass under a contract of indemnity for the amount paid Turpin. (The Uniform Joint Tortfeasors Act is not involved.) Employers Mutual Liability Insurance Company of Wisconsin paid Turpin workmen's compensation and it intervened, seeking recoupment from the prime contractor; Turpin's release to the prime contractor reserved intervenor's right to maintain such an action. The trial court held (1) that Hass was free of any negligence contributing to cause Turpin's injuries, (2) that the contract of indemnity did not obligate Hass under the circumstances to indemnity the prime contractor, and (3) that the stipulated amount due Employers Mutual would bear interest from the date of entry of judgment and not from an earlier date when the debt was stipulated to be owed. Plaintiffs appeal on the first two holdings and Employers Mutual appeals with respect to the date interest should have started.

The prime contract held by the joint venture called for its installation of a three-inch vent pipe to be set vertically in a concrete pad or base. When the concrete was poured the three-inch pipe was not available; so, with the approval of the United States Corps of Engineers, a four-inch sleeve or collar was placed in the concrete base. It was agreed that the three-inch pipe would be inserted in the sleeve to a depth of eighteen inches and welded. When the three-inch pipe arrived it was inserted but only to a depth of a few inches. Instead of welding the two pipes a type of caulking material was inserted in the space between the pipes. The pipe was 27 10 in height above the pad. The prime contractor awarded J. I. Hass Company a painting contract which included this particular pipe. Hass furnished its painter, William Turpin, the equipment with which to do the painting. In the painting trade that equipment is called stirrup and saddle. Two buckles are tied on the ends of a rope and are used for foot stirrups. That rope is placed around the center of the pipe. Another rope is tied to a two-by-twelve board and it is used for a saddle. That rope is likewise attached to the pole and is thrown and tied off at a point some four feet from the top of the pole. The top four feet is painted by the use of a long brush so the painter never climbs higher than the tie-off. Turpin had painted approximately four feet when the pipe came loose at the base and he fell to the ground.

That the prime contractor was negligent in the erection of the pipe is not here questioned. This suit was instituted on the theory that as a matter of law the contract of indemnity executed by Hass obligated it to reimburse the prime contractor in full for the latter's payment to Turpin. In the alternative it was asserted that Hass would unquestionably be liable in proportion to its negligence in allegedly failing to provide Turpin with safe equipment for the performance of his task. Both sides presented their evidence on the alleged negligence of Hass. The trial court concluded that Hass was entitled to an instructed verdict. Secondly, it was held that Hass was not obligated to reimburse the prime contractor for sums it was forced to pay as a result of an accident caused solely by the prime contractor's negligence. We proceed to examine the propriety of the court's holdings on those two points.

In testing the granting of a directed verdict the rule has been many times stated and ofttimes with a slight variation. A typical statement of the rule is found in Barrentine v. Henry Wrape Co., 120 Ark. 206, 179 S.W. 328 (1915):

In determining on appeal the correctness of the trial court's action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.

We have no intention of deviating from the rule just stated; however, it has been some time since we have pointed up the meaning of the term 'any evidence.' The term has long been recognized to mean 'evidence is legally sufficient to warrant a verdict.' Catlett v. St. Louis, I.M. & S. Railway Company, 57 Ark. 461, 21 S.W. 1062 (1893). To be legally sufficient it must be substantial; and substantiality is a question of law. St. Louis S. W. Ry. Co. v. Braswell, 198 Ark. 143, 127 S.W.2d 637 (1939).

The only witness offered by the prime contractor was Ben Hopkins. His qualifications in the field of structural engineering were admitted. We summarize the significant portions of his direct testimony in the following paragraph:

A procedural method of painting a pipe of three inches or less, over 24 feet high is to place a painter's extension ladder on each side of the pole. A lock is placed at the top section of the extension ladders, locking them together. There is no contact between the pole and the ladders. The bottom of the ladders is placed four feet from the bottom of the pole. Another method is to drop a painter by a swing that is hung from a crane lift. That is not as economical as the ladder method. With the stirrup and saddle method, the weight and movement of the painter creates a stress at the point of anchorage. If a painter and his rig weighs 200 pounds and he is at the top of a pole 27 10 in height, is suspended outside the pipe and some twelve inches away from it, with his legs not wrapped around the pipe, he would create a 'live and dead load of 19,082 pounds per square inch' on a three-inch pipe. Pipe of the type at hand is not used by engineers for building purposes past a criterion of 18,000 pounds of stress per square inch. Actually the yield point of that type pipe is set by manufacturers between forty-five and sixty thousand pounds. Design engineers use the eighteen thousand pound criterion as a cushion for safety. He asserted that any unusual movements made by Turpin while in the painting process would be a critical factor.

On cross-examination it was brought out that Mr. Hopkins was not aware that the three-inch pipe was inserted from two to three inches into the four-inch pipe, that the pipes were not welded, and that caulking material was placed in the space between the pipes. When advised of that...