Pollard v. Todd

• Decision Date: 10 October 1966
• Docket Number: No. 11095,11095
• Citation: 418 P.2d 869,148 Mont. 171
• Parties: Irving POLLARD, Plaintiff and Respondent, v. Donald TODD and Donald Todd, Jr., co-partners, Defendants and Appellants.
• Court: Montana Supreme Court

Page 869

418 P.2d 869

148 Mont. 171

Irving POLLARD, Plaintiff and Respondent, v. Donald TODD and Donald Todd, Jr., co-partners, Defendants and Appellants.

No. 11095.

Supreme Court of Montana.

Submitted Sept. 15, 1966.

Decided Oct. 10, 1966.

Berg, O'Connell & Angel, Charles F. Angel (argued), Bozeman, for appellants.

Blenkner & Blenkner, E. A. Blenkner (argued), Columbus, J. H. McAlear (argued), Red Lodge, for respondent.

CASTLES, Justice.

This appeal arose from a suit by Irving Pollard against his employers, Donald Todd and Donald Todd, Jr., for personal injuries alleged to have resulted from a fall from a scaffold. The jury returned a verdict for the plaintiff in the amount of $25,563.45 and the judgment was entered accordingly. From this judgment, both defendants appeal.

The appellants, hereinafter called the defendants, are father and son engaged in the farming and stockraising business as copartners. Defendants approached one Meredith Hillman, hereinafter called Hillman, on the matter of bidding on a contract to construct a grain storage building on defendants' premises. Hillman declined to enter into a contract because he was not familiar with the type of building required by the defendants and was unsure of what would be involved. Subsequently defendants hired Hillman as a carpenter at the rate of $3.00 per hour and gave him supervisory duties. Sometime later the respondent, hereinafter called the plaintiff, was hired as a carpenter's helper and received orders from both defendants and Hillman. On the day of the injury the plaintiff was informed by Hillman that two foot strips of tin would have to be nailed around a door of the building under construction. At the direction of Hillman a ladder was placed on either side of the door at a distance of about fifteen feet apart. Both ladders were fitted with metal hooks called 'ladder jacks' which are devices commonly used in the building trade to support a plank and thereby create a platform for workmen. Hillman then selected a wooden plank from a pile of planks which had previously been used to construct scaffolding and directed the plaintiff to assist him. The plaintiff did assist by positioning one end of the plank onto one of the 'ladder jacks' while Hillman positioned the other end. All of the planks in the pile were unplaned, 'rough' lumber of approximately the same dimensions. The plank selected by Hillman was 18 to 20 feet long and contained several knots. Plaintiff and another workman mounted this scaffold arrangement and proceeded to nail on the strips of tin. The plank broke near the center without any warning whatever causing the plaintiff to fall twelve feet to the ground.

Evidence was introduced at the trial to the effect that Hillman had discussed the scaffolding needs of the construction project with both of the defendants. Hillman had suggested that commercially manufactured scaffolding be rented, while the defendant, Donald Todd, Jr., had suggested using a tractor mounted hydraulic lift. However, it was clear from all of the testimony, that this discussion was directed at the future needs of the construction project when the work had progressed to heights above the level from which the plaintiff fell. There was no evidence that the defendants were in any way dissatisfied with the use of ladder jacks as they were being used when the plaintiff fell.

Both the plaintiff and defendants proceeded at the trial on the theory that the plaintiff was injured in the course of his employment with the defendants' farming and stockraising business, and was therefore exempt from the operation of the Workmen's Compensation Act. Plaintiff did not claim under the Workmen's Compensation Act and the defendants asserted their right to interpose the common-law defenses of contributory negligence, assumption of the risk, and negligence of a fellow servant.

Defendants contend that the trial court erred by giving an instruction on the doctrine of res ipsa loquitur for two reasons: (1) that the facts and circumstances of the case are inappropriate to the application of the doctrine, and; (2) the use of the words 'utmost care and diligence' was prejudicial. The first part of this contention will be considered first and the second will follow later in this opinion.

The appropriateness of the instruction is attacked on the grounds that the plaintiff is not without fault and that the defendants were not in exclusive control of the instrumentality which caused the injury. To the first it is sufficient to say that a defendant cannot prevent the plaintiff from having an instruction on the doctrine of res ipsa loquitur merely by interposing the defense of contributory negligence. If evidence is introduced inferring negligence on the part of the plaintiff, the plaintiff has the burden of introducing further evidence which negates that inference. At this point the issue is one of general proofs for the jury to decide under proper instructions. See Prosser on Torts, 2d ed., pp. 208-9 (1955); 2 Harper and James on Torts, p. 1093, § 19.8 (1956). The record shows that the only act of the plaintiff with respect to the faulty scaffold was to place one end of the plank on one of the 'ladder jacks' under the supervision of Hillman. We find no inference of negligence from this fact.

Defendants' contention that res ipsa loquitur was inappropriate to this case because the defendants were not in exclusive control of the instrumentality which caused the injury is also unconvincing While defendants' brief correctly cites this court as requiring the element of exclusive control in Whitney v. Northwest Greyhound, 125 Mont. 528, 533, 242 P.2d 257, 259, it fails to take into account that 'exclusive control' does not mean actual physical control at the time of the accident. Krohmer v. Dahl, 145 Mont. 491, 498, 402 P.2d 979, 983; Baumgartner v. National Cash Register Co., 146 Mont. 346, 353, 406 P.2d 686, 690. The jury could have found that defendants had expressly approved the use of 'ladder jacks' and plank which injured the plaintiff and this would have been sufficient 'control' to invoke the doctrine of res ipsa loquitur. However, it is not necessary to reach the question of degree of control since we hold that the defendants had actual physical control through their supervisor Hillman.

This court has consistently held that the master has a duty to use reasonable care to provide a reasonably safe place for his servants to work and to provide reasonably safe tools and appliances with which to perform the tasks assigned. Allen v. Smeding, 138 Mont. 367, 377, 357 P.2d 13, 18, 19. This is a duty the master may not delegate to another. Gregory v. Chicago, Milwaukee & St. Paul R. R., 42 Mont. 551, 556, 113 P. 1123, 1125; Morelli v. Twohy Bros. Co., 54 Mont. 366, 375, 170 P. 757, 758; Grant v. Nihill, 64 Mont. 420, 440, 441, 210 P. 914, 920. Therefore, Hillman, acting as supervisor for the defendants, became their vice-principal or alter ego when he selected the defective plank and supervised the construction of the scaffold.

The defendants' objection to the application of the doctrine to this case is not novel. A large number of cases have been litigated over the precise issue of whether a servant should be allowed to rely on the doctrine of res ipsa loquitur when suing his master for injuries sustained by falling from a scaffold in the course of his employment. A substantial majority of these cases have approved the application of the doctrine to this factual situation. See annotation in 22 A.L.R.2d 1176 for a discussion of these cases.

The instruction on res ipsa loquitur which was objected to by the defendants was given as instruction 7 and reads as follows:

'From the happening of the accident involved in this case as established by the evidence, an inference arises that the proximate cause of the occurrence was some negligent conduct on the part of the defendants in failing to furnish the plaintiff with...