Rush v. Hunziker

• Decision Date: 29 January 1940
• Docket Number: 27321.
• Citation: 24 N.E.2d 931,216 Ind. 529
• Parties: RUSH v. HUNZIKER.
• Court: Indiana Supreme Court

24 N.E.2d 931

216 Ind. 529

RUSH v. HUNZIKER.

No. 27321.

Supreme Court of Indiana

January 29, 1940

Appeal from Superior Court, Lake County; Homer E. Sackett judge.

Tinkham & Tinkham, of Hammond, for appellant.

Gavit Hall, Smith & Gavit, of Whiting, for appellee.

ROLL Judge.

This action was brought by appellee to recover damages for personal injuries resulting from alleged negligence of appellant as hereinafter set out.

The complaint was in one paragraph, and was answered by a general denial. The cause was tried by the court without the intervention of a jury. The court found in favor of appellee and against the appellant.

Appellant filed a motion for a new trial and also a motion to modify and correct the judgment; both of which were overruled by the court.

The motion for a new trial questions the sufficiency of the evidence to sustain the decision of the court, and contends that the decision of the court is contrary to law.

The motion to modify and correct the judgment attempts to present the same question as the motion for a new trial. For that reason, what we say on the question presented by appellant's motion for a new trial will likewise apply to the motion to correct and modify the judgment.

The record presents the following facts which we think sufficient to understand the questions involved.

Appellant by a written contract with the Gary Boat Club, Inc., agreed to construct a club house. The same was to be completed, or, at least, ready for occupancy by July 4, 1937. By the terms of said contract, the Boat Club was to furnish all materials, and appellant was to do the work.

Some time before July 4th, it became apparent that the club house would not be completed by the time agreed upon. So the president asked appellant if he could make the club house ready for use by July 4th, to which appellant replied that he could by erecting a temporary railing around the porch, and remarked that they would have to observe that fact. The porch was on the north side of the building, and the floor thereof was twelve to fifteen feet above the ground. There was a stairway from the ground to the porch.

Appellant constructed a temporary railing around this porch by nailing 'two by fours', about thirty-two or thirty-four inches from the porch floor, to upright posts that supported the porch roof. In constructing this temporary railing, appellant placed a 'two by four', about forty-four inches long, extending from the upright that formed the west post of the stairway to the upright next to and immediately west of said post. This 'two by four' was 'toe-nailed' to the stairway post with five casing nails, two 'sixteen penny' nails, and three 'eight penny' nails. 'Sixteen penny' nails are a little less than four inches long, and 'eight penny' nails are two and three-quarters inches long. Casing nails have tapering heads, somewhat smaller than a common nail, and a little larger than what is known as a finishing nail, but made much on the same order as a finishing nail. Three nails were used on the top and one on each side of the 'two by four', and driven in to the stairway post. This was the condition of said porch and railing on July 4, 1937. On July 4, a large crowd, consisting of members of the club and their invited guests, assembled at the club house. Members and their guests continued to use the club house during the following week with an increased crowd on Saturday afternoon and Sunday. On July 11, 1937, appellee and her husband, at the invitation of the president of said club, visited said club house. The record discloses that on that afternoon there were some where between seventy-five and one hundred persons on and around said club house.

Appellee and one Mrs. Ballard were standing near the railing immediately west of the stairway. While conversing they leaned against the 'two by four' which formed the temporary railing at this point, and, as they described it, they half sat and half leaned against the railing. Appellee was between Mrs. Ballard and the stairway post, and, after they had been so leaning for some five minutes, the railing pulled loose from the stairway post, and appellee fell backwards to the ground, some twelve or fifteen feet below, causing the injuries complained of and described in her complaint. The evidence shows that the nails by which said railing was fastened to the stairway post had pulled through the wood of the 'two by four', and remained in the post.

Appellee alleges that said guard rail was insufficiently and insecurely nailed and fastened to the upright post to which it was attached, and that appellant negligently installed said cross railing, in that the nails used were of insufficient size and were insufficient in number, and that said defect and negligence could not, by the exercise of reasonable care, be discovered by appellee, and that said defect and dangerous condition was not open to observation.

Appellant, under point one in his brief, points out that this is a tort action, and before plaintiff in such an action is entitled to recover, she must prove: (1) that defendant, appellant, was under a legal duty to protect appellee from injury; (2) that appellant failed to discharge that duty; and (3) that injury to appellee resulted from such failure. It is conceded by appellant that if appellee established the first two of the above propositions, the third was sufficiently proven.

Taking it for granted that appellant's propositions are properly stated, we will discuss the first proposition, namely, did appellant owe any duty to protect appellee.

In the first place, appellant, as the contractor for the Gary Boat Club, Inc., knew that the club house was going to be used by the club members and their guests. That was disclosed by the conversation between the president of the club and appellant when the president asked appellant if he could have the club house ready for use by July 4th, and appellant said he could, but that it would be necessary to erect a temporary railing, and appellant proceeded to prepare the club house for use by erecting the temporary railing around the porch.

Appellee was an invited guest, and was on the premises by invitation from one who had authority to invite her. She was therefore rightfully upon the porch when she received her injuries.

It was stated in the case of Hall v. Barber Door Co., 1933 218 Cal. 412, 23 P.2d 279, 281: 'It cannot be doubted that an independent contractor is responsible to an occupant of a building rightfully on the premises at the request or consent of the owner for any wrongful acts that may be committed by himself or his employees while the stipulated work is in progress and resulting in injuries to such occupant. The ground upon which this liability is based is the implied...