Rose v. Miller & Co., Inc.

• Decision Date: 27 May 1983
• Parties: Rubye ROSE, et al. v. MILLER & COMPANY, INC. 81-1033.
• Court: Alabama Supreme Court

Page 1237

432 So.2d 1237

Rubye ROSE, et al. v. MILLER & COMPANY, INC.

81-1033.

Supreme Court of Alabama.

May 27, 1983.

Henry Sanders of Chestnut, Sanders, Sanders & Turner, Selma, for appellants.

J. Garrison Thompson of Pitts, Pitts and Thompson, Selma, for appellee.

EMBRY, Justice.

This is an appeal by the administratrix of the estate of Gus Rose, deceased, from a directed verdict entered in favor of Miller & Company (Miller), a corporation. We affirm.

Plaintiff's intestate, Gus Rose, died as a result of an accident on 10 January 1978 in Dallas County. At that time, Rose was employed by Dallas Welding Machine and Metal Company (Dallas Welding) as a welder and had been employed in such capacity for approximately seventeen years. Some three to six weeks prior to the accident, an employee of Miller delivered a piston to Dallas Welding and requested that the shaft of the piston be replaced. No other instructions were given. The piston was eight to ten inches in diameter with a two to two and one-half inch diameter shaft. It weighed between 150 and 200 pounds. On 10 January 1978, John Strickland, President of Dallas Welding, and Rose began work on the piston. An inspection revealed that it was covered with a great deal of rust and sawdust. Because Strickland's company had performed similar work for Miller over the years, the presence of rust and sawdust on parts and equipment to be repaired did not appear unusual to them. Strickland had no standard procedure for cleaning off items brought into his business before working on them and on this occasion failed to clean the piston. After several hours of unsuccessfully attempting to press the shaft out of the piston by various methods, Rose suggested heating it with an oxyacetylene torch to expand and dislodge the frozen part or parts. Strickland agreed that heating was the correct procedure. After Rose had heated the piston for about three minutes, there was an explosion and Rose was fatally injured.

About two days after the accident, Strickland assembled the pieces of the piston he could find and while examining them noticed three plugs in the bottom. Neither Strickland or Rose had noticed these plugs before the explosion, although they had cursorily examined that particular area of the piston. The plugs indicated that the piston was manufactured with a cavity in it.

On 8 January 1979, the administratrix of the estate of Gus Rose filed a complaint in Dallas County Circuit Court seeking damages for the wrongful death of Rose. The complaint, as it relates to Miller, alleged that Miller negligently and wantonly maintained and caused the piston which exploded to be delivered to Rose's place of employment; that it was unreasonably dangerous and defective and that it was not reasonably safe for the intended use as impliedly warranted by Miller. The complaint was later amended to allege that Miller gave no warning or instructions to Rose when the piston was brought in for repairs. Miller denied all the material allegations of the complaint and further set out the defenses of lack of control by Miller over the piston, negligence by Rose's employer and the manufacturer, and new, independent and intervening cause. Further amended answers by Miller alleged contributory negligence on the part of Rose, the fact that the piston was not being used for its intended use, statute of limitations, assumption of risk, lack of knowledge and duty on the part of Miller, and that Dallas Welding was an independent contractor.

The case was tried before a jury on 10 December 1981. At the conclusion of plaintiff's case, Miller filed a motion for directed verdict, which was granted by the trial court. The plaintiff's motion for new trial was denied on 25 March 1982.

On appeal, Rose's administratrix maintains that the trial court erred in granting a directed verdict for Miller because there is a fact issue of actionable negligence on the part of Miller. In this respect, the law is well-settled:

"In every case involving actionable negligence, there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) A failure by the defendant to perform that duty; and (3) An injury to the plaintiff from such failure of the defendant. When these three elements are brought together, they unitedly constitute actionable negligence. The absence of any one of these renders a complaint bad or the evidence insufficient."

Calvert Fire Insurance Co. v. Green, 278 Ala. 673, 677, 180 So.2d 269 (1965). The existence of a legal duty under a given statement of facts and circumstances is essentially a question of law for the court. See, Spurlin v. General Motors Corp., 528 F.2d 612 (5th Cir.1976). It is elementary that where there is no duty, there can be no negligence. Bryant v. Morley, 406 So.2d 394 (Ala.1981).

In considering the propriety of a directed verdict, our function is to view the evidence in a light most favorable to the non-moving party. If, by any interpretation, it can support a conclusion in favor of the non-moving party, we must reverse. Herston v. Whitesell, 374 So.2d 267 (Ala.1979). A directed verdict is proper only where there is a complete absence of proof on an issue material to the cause of action or where there are no controverted issues of material fact upon which reasonable persons could differ. Caterpillar Tractor Co. v. Ford, 406 So.2d 854 (Ala.1981).

Applying the above principles to the case before us, the essential inquiry is whether there is sufficient evidence to establish that on the occasion in question, Miller, a bailor-contractee owed a legal duty to Rose, an employee of Dallas Welding, the bailee-independent contractor. In this connection, the undisputed evidence shows that Miller requested Dallas Welding to repair the piston which exploded and caused Rose's death; that Dallas Welding had performed work for Miller numerous times over the years; that Miller gave no instructions to Strickland or Rose as to how the piston should be repaired; and that no representative of Miller was present when Strickland and Rose attempted such repairs.

The evidence further shows that the cause of the explosion which killed Rose was the application of heat to the piston with an oxyacetylene torch; that the piston contained a cavity in...