Samuel E. Pentecost Const. Co. v. O'Donnell
| Decision Date | 06 March 1942 |
| Docket Number | 16633. |
| Citation | 39 N.E.2d 812,112 Ind.App. 47 |
| Parties | SAMUEL E. PENTECOST CONST. CO. v. O'DONNELL. |
| Court | Indiana Appellate Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Murray & Mannon and James J. Stewart, all of Indianapolis, for appellant.
John C. Ruckelshaus, John K. Ruckelshaus, and Ruckelshaus & Ruckelshaus, all of Indianapolis, for appellee.
DE VOSS, Chief Judge.
Appellee Clarence W. O'Donnell, instituted this action in the trial court to recover from appellant and the R. C. Mahon Company damages for personal injuries sustained by appellee, alleged to be due to the negligence of appellant and said R. C. Mahon Company. There was a trial by jury and a verdict returned against appellant awarding plaintiff (appellee) damages in the sum of $25,000. Upon the overruling of defendant's (appellant's) motion for a new trial, judgment was rendered upon the verdict for said sum against appellant, and from this judgment, appellant prosecutes this appeal.
The complaint was in one paragraph and alleged that prior to the month of August, 1936, appellant entered into a contract with O'Neil Construction Company whereby appellant agreed to erect certain steel work in the construction of a general motors plant to be erected in the City of Indianapolis. During the construction of the building, appellee was also employed by the O'Neil Construction Company to assist the O'Neil Construction Company in the erection thereof, but that appellee was not employed at that time by appellant. On the 29th day of August, 1936, appellee was instructed to clean off the steel girders of such building. The defendants had completed the erection of such steel and informed appellee of such completion. On or about such date, the appellee, together with certain other employees, walked along a portion of said steel girders on the second floor of such structure and one of such girders had been permitted to remain without a bolt or attachment which would hold the same firmly in place, and when appellee stepped upon such steel girder, the same tilted downward and caused appellee to be hurled below about thirty feet to the concrete floor of such building. The damages thereby inflicted on appellee were the direct and proximate result of appellant's negligence in carelessly failing to fasten such girder with a bolt or attachment sufficient to hold such steel girder in place and in permitting appellee to use such steel girder at a time when appellant knew or should have known that the girder in question was unsafe for use by appellee. By reason of said negligence, appellee suffered serious, permanent injuries in the double fracture of the pelvic bone, broken hip, bone in elbow broken and protruded through the flesh, his wrist broken and crushed and he suffered certain ruptures in internal organs causing leakage from kidneys and other organs of his body. He was required to submit to surgical operations and was confined to the hospital for many months. He is maimed and crippled permanently and is unable to work and has incurred a large indebtedness for hospitalization and medical attention.
To this complaint the appellant filed an answer in two paragraphs: the first in general denial and the second being an affirmative paragraph which alleged that at the date of the injury complained of, appellee was an employee of the W. E. O'Neil Construction Company, and that such injury arose out of and in the course of such employment and that thereafter, appellee accepted the jurisdiction of the Industrial Board of Indiana and accepted a settlement for his claim for injuries by entering into an agreement with his employer for payment of compensation, and that on the 5th day of April, 1937, said appellee and his employer, W. E. O'Neil Construction Company entered into a supplemental agreement for the final settlement of his claim. A copy of each of said agreements is attached to the second paragraph of answer. It is further alleged that the money set out in the agreements has been accepted by appellee in payment of compensation for said injuries.
By way of reply to appellant's second paragraph of answer, appellee alleges that he did receive certain payments from the Hartford Accident and Indemnity Company, insurance carrier of W. E. O'Neil Construction Company, but that such payments were made under an oral agreement as advancements but not as compensation, and that such oral agreement was reduced to writing thereafter and signed by appellee and said insurer. A copy of said agreement is attached to such reply and made a part thereof.
Upon the issues joined, the cause was submitted to the jury, resulting as hereinabove set forth. Appellant filed a motion for a new trial which was overruled by the court and this appeal followed.
The only error assigned in this court and relied upon for reversal is: "The trial court erred in overruling appellant's motion for a new trial."
The motion for a new trial contained the following specific reasons:
Appellant waives contention of error as applied to the giving of instructions by the court on its own motion as set out in cause number 6 in the motion for a new trial, except as to instruction number 10 so given by the court.
Appellant also waived contention of error as applied to the giving of instructions numbers 5 and 7, by the court at the request of appellee as set out in cause number seven in the motion for a new trial and also waives contention of error in the refusal of the court to give instructions numbered 2 requested by appellant as set out in cause number 8 of said motion for a new trial.
It is contended by appellant, first, that there is no liability against appellant for the reason there was no negligence on their part; that since the steel work was not completed at the time of the accident, any work done by another contractor was at his own risk; that the relationship of O'Donnell and appellant was that of a permissive licensee under which the only duty of appellant was not to wilfully or wantonly injure appellee. Second, if anyone was negligent it was O'Donnell's employer who directed him to go upon the steel work, and, third, appellee had made an election to accept compensation under the Workmen's Compensation Law, Burns' Ann.St. § 40-1201 et seq., and is thereby precluded from proceeding against appellant.
In ascertaining the relationship of appellee to appellant in the circumstances under consideration, it will be necessary to consider the evidence introduced relative thereto.
The record discloses that W. E. O'Neil Construction Company was the general contractor for the erection of a building for the Chevrolet Body Plant in Indianapolis. Appellant was the subcontractor from said W. E. O'Neil Construction Company for the erection of the structural steel. The buildings to be erected were long buildings and irregular in shape, and in the erection of the steel, angle irons or stiffeners were used in between the I beams as braces and, after the riveting of the I beams and purlins was completed, the angle irons or stiffeners were bolted. James Gilroy was the supervising architect on the construction and as stated by him, his job was to see that the contractors got the work done as soon as possible and in accordance with the plans and specifications, and his word was final. As a part of his duties said James Gilroy directed the O'Neil Construction Company to wash the steel and it was while washing the steel as an employee for the O'Neil Construction Company that appellee was injured.
In discussing the status of licensees, both permissive and licensees by invitation, this court, in the case of Cleveland, etc., R. Co. v. Means, 59 Ind.App. 383, 104 N.E. 785, 788, 108 N.E. 375, spoke as follows:
Quoting further from the same case: "A licensee by invitation is a person who goes upon the lands of another with the express or implied invitation of the owner or occupant,...
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