Robey v. Keller

• Decision Date: 07 October 1940
• Docket Number: No. 4613.,4613.
• Citation: Robey v. Keller, 114 F.2d 790 (4th Cir. 1940)
• Parties: ROBEY v. KELLER et al.
• Court: U.S. Court of Appeals — Fourth Circuit

114 F.2d 790 (1940)

ROBEY v. KELLER et al.

No. 4613.

Circuit Court of Appeals, Fourth Circuit.

October 7, 1940.

COPYRIGHT MATERIAL OMITTED

Before PARKER, SOPER, and DOBIE, Circuit Judges.

James G. Martin, of Norfolk, Va. (Albert V. Bryan, of Alexandria, Va., on the brief), for appellant.

Armistead L. Boothe and Gardner L. Boothe, both of Alexandria, Va., for appellees.

PARKER, Circuit Judge.

This is an appeal in an action to recover damages for personal injuries sustained as the result of the falling of a defective scaffold. The plaintiff below was Mrs. Gertrude James Robey, who at the time of her injury was a member of the building committee of the Board of Trustees of the Purcellville, Va., public library. The defendants were the contractors engaged in the construction of the library building under contract with the town of Purcellville. At the time of her injury, plaintiff was standing on a scaffold, erected by defendants for the construction of the rock walls of the building, and was examining or pulling at a rock to be used in the walls, when the scaffold collapsed. She alleges that the scaffold was negligently built and maintained and was overloaded with stone at the time. Defendants denied negligence and pleaded contributory negligence on the part of plaintiff. They contended, also, that plaintiff was a mere licensee to whom they owed no duty except to refrain from active negligence or wilful injury. There was verdict and judgment for defendants and plaintiff has appealed. The questions raised by the appeal relate to the charge of the court respecting the duty owed by defendants to plaintiff and to the refusal of the court to charge that there was no evidence of contributory negligence.

For determination of the duty owing by defendants to plaintiff, a correct understanding of her relationship to the library building is essential. There can be no question, upon the evidence, but that she was the moving spirit behind the construction of the building and was so recognized by the town authorities, as well as by the contractors. She it was who secured subscriptions of funds from private persons and a grant from the Federal Public Works Administration which made the building possible. She was present at the letting of the contract for construction and suggested changes which brought the lowest bid within the funds available. She was present when ground was broken for the building and stood over and watched the work as it progressed and saw that mistakes were avoided and satisfactory results obtained. It is true that title to the lot upon which the building was erected was placed in the town of Purcellville and that the contract for its construction was made in the name of the town; but the deed conveying the lot to the town as a site for the library building provided that the management and control of the library should be in a board of trustees named therein, and the evidence leaves no doubt as to the fact that this board of trustees, of which the plaintiff was the active and dominating spirit, undertook the active supervision of building operations usually exercised by the owner or his representative.

An architect was employed by the town, but no inspector; and plaintiff undertook the work of inspection. She was present when the excavation was made for the building, called attention to the fact that it encroached on the sidewalk and had the mistake corrected. She called attention to the necessity of strengthening one of the walls at a certain point and had scrap steel or iron imbedded in the cement for that purpose. She was particularly interested in the artistic effect to be secured by the use of natural stone of the proper colors in the walls, selected the stone to be used and was present when the walls were built, directing how the stone should be placed so as to secure the proper blending of colors. She was at the scene of the work practically every day for several hours a day and went upon the scaffolds where the workmen were at work for the purpose of directing and advising them in the placing of the stones. All of this was known to and acquiesced in by defendants, who not only followed her directions with respect to the placing of the stones but sought her advice and approval and directed the workmen to follow her directions with regard thereto. She suggested sundry changes in the work as it proceeded, and procured for the contractors an extension of time for the completion of their contract because of delays resulting from the changes and from weather conditions. No one questioned her authority to thus supervise and direct the work of construction, in which she was assisted by her husband, although one of the defendants did later question her husband's authority. The defendant Lemuel D. Keller testified (p. 395): "Well, ordinarily there is somebody that is designated to be the representative of the owner, and those are the people we deal with. In this case it seems as though the Robeys were just assuming that status there." She evidently felt that the duty of supervision devolved upon her as a member of the building committee of the board of trustees of the library; and the evidence leaves no doubt that she undertook the performance of the duty. The mayor of the town testifies that he told her to do so, and it is clear that the town officials took little interest in the work except to see that no liability was incurred by the town.

At the time of the falling of the scaffold, plaintiff had gone upon it, accompanied by an employee of defendants, to select a stone of a certain color. About a truck load of stone had been placed upon the scaffold, but there was nothing to indicate to plaintiff that it was overloaded, as the amount of stone on it was not in excess of what had frequently been placed upon scaffolds during the progress of the work. A pine put log, which supported the scaffold at a place where there was a recess in the wall and which was about 2½ feet longer than the ordinary supports, broke at a knot and the scaffold fell. There was evidence that the put log was smaller and of less substantial character than should have been used as a scaffold support for this sort of work.

With respect to the duty owing by defendants to plaintiff, the court charged the jury as follows:

"The Court charges the jury that at the time of the accident the plaintiff, under the facts shown in the evidence, was upon the scaffold either as a licensee or invitee as hereinafter defined of the defendants, and that the degree of care which the defendants then owed to the plaintiff depended upon which of said relationships she then occupied. A licensee is a person who goes upon the premises of another with the permission of the occupant for the interest, gratification or pleasure of the person going upon the premises. An invitee is one who goes upon the premises of another in the performance of some duty thereon, or by the express or implied invitation of the person in control. An invitation implies desire or request and must be for the mutual benefit or advantage of both the invitor and invitee. An occupant of premises only owes to the licensee the duty not to intentionally or wantonly injure him, while the duty owed to an invitee by an occupant of premises is to use ordinary care to see that the premises are in a reasonably safe condition for the use of the invitee in the manner and to the extent he is required in the performance of a duty or is invited to use them.

"The Court charges the jury that if they believe from the evidence that the plaintiff at the time of the accident was the duly authorized representative of the Town Council of Purcellville to inspect the library building then being erected by the defendants and that the defendants knew that fact, and if the jury further believes from the evidence that it was reasonably necessary in the performance of such duties...