Selby v. Sykes

• Decision Date: 13 June 1951
• Docket Number: No. 10299.,10299.
• Parties: SELBY v. SYKES.
• Court: U.S. Court of Appeals — Seventh Circuit

189 F.2d 770 (1951)

SELBY v. SYKES.

No. 10299.

United States Court of Appeals Seventh Circuit.

June 13, 1951.

John F. Sembower, Chicago, Ill., for appellant.

B. S. Quigley, William P. Nolan, Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, KERNER and FINNEGAN, Circuit Judges.

FINNEGAN, Circuit Judge.

Roger Selby, appellant, seeks to reverse an order of the District Court which directed that his amended complaint be dismissed as to defendant-appellee, A. L. Sykes, an individual doing business as Sykes Sheet Metal Products.

The complaint as amended based federal jurisdiction upon diversity of citizenship, alleging that the plaintiff was a citizen of Indiana; that the individual defendant, A. L. Sykes, was a resident of the State of Illinois; and that the corporate defendant, American Steel Foundries, Inc., was a citizen of New Jersey.

For a first cause of action it charged that during all material times the individual defendant was, by contract with American Steel Foundries, Inc., engaged in reconstructing, repairing and renewing a roof on an industrial plant of the corporate defendant, which plant was located in Hammond, Indiana. It alleged that plaintiff, during all material times, was employed as a roofer by the individual defendant; that on or about January 13, 1948, he was engaged in work on the roof of the said industrial plant of the corporate defendant in Hammond, Indiana; that on said date he was directed by the individual defendant to work upon a hazardous portion of the roof, which was then being swept by a strong wind, and which was covered with snow and was unprotected and unsupported by staging or scaffolding.

Certain specific faults alleged to then exist are pointed out, and the complaint avers that the "roof thereby constituted a serious menace to workmen walking thereon;" all of which was known to plaintiff and to the two defendants. It is charged that on January 13, 1948, while snow was falling, plaintiff was ordered by his employer, the individual defendant, to work upon said roof, in the repair and reconstruction thereof; that plaintiff protested and objected to being sent to work upon said roof; that the individual defendant, notwithstanding protests and the known dangerous conditions, ordered plaintiff to work upon said roof.

It is then charged "that on January 13, 1948, by reason of defendant's negligence in thus putting the plaintiff to work on said roof under the said hazardous conditions, and without complying with the statute as to protective scaffolding, the plaintiff, while carrying a section of roofing was deflected by the wind upon a portion of the old roof which was not supported by cross-beams, and the plaintiff fell through the roof to the floor below, a distance of approximately 35 feet, and he was severely injured."

The complaint then sets out in some detail the resultant injuries and damages sustained, and claims injuries of a permanent nature. The complaint alleges, for a second cause of action that

"On or about February 25, 1948, the defendant A. L. Sykes, presented to the Indiana Industrial Board a standard agreement dated January 28, 1948, and purporting to bear the signature of the plaintiff, and the same was approved and filed by the Board, the plaintiff having no notice of such action. The plaintiff has no recollection whatever of signing any such instrument, and on the purported date thereof, January 28, 1948, was in the hospital awaiting the setting of bones in his injured limbs, in great pain and suffering, under the influence of pain alleviating drugs, and incapable of assenting to any agreement, and if he signed the said agreement his signature was fraudulently obtained without any rational assent on his part, and the same is without legal force and effect."

"Plaintiff has for some time received payments of $20.08 weekly from the Liberty Mutual Insurance Company, purportedly on behalf of the defendant, A. L. Sykes, but has received the said payments in mitigation of his damages generally, and without any final determination of his rights or discharges of the defendant's obligations to him."

As the basis for his second cause of action, the plaintiff adopts and re-alleges all the averments made in support of his first cause and further charges that the corporate defendant knew, or should have known, of the faulty condition of the roof that was to be reconstructed or repaired, and of the dangerous character of the work to be done under the conditions described. It is also charged that the corporate defendant in fact exercised control and dominion over its roof, despite its contract with Sykes; and remained in charge of said work during all material times.

It is charged that under the Indiana Dangerous Occupation Act, Burns' Ind. Rev.Stat. 20-303, which was in full force and effect at all material times, it was the duty of the corporate defendant to provide protection to workmen engaged in the said work on its roof, to see that a scaffold or staging was constructed and maintained beneath the workmen thereon in such a manner as to prevent them from falling through to the floor below.

Both defendants interposed motions to dismiss the amended complaint. The motion of the corporate defendant — American Steel Foundries, Inc., was denied.

The motion of the individual defendant was sustained, and, as we have pointed out, this appeal seeks to reverse that order and the consequent dismissal of the alleged cause of action against A. L. Sykes.

Appellant states the contested issue in this language: "Where the State Workmen's Compensation Act expressly provides that it shall not be construed to relieve any employer or employee from penalty for failure or neglect to perform any statutory duty, and the employer wilfully and wantonly violates a statute imposing a duty to take specific safety precautions, is the matter outside the purview of the Workmen's Compensation Act, and the employee entitled to recover under the statute?"

Appellant contends:

First — That under the facts and circumstances disclosed in the case at bar, the injury and consequent damage suffered by plaintiff did not arise out of an accident within the meaning of the Workmen's Compensation Act of Indiana, Burns' Ann. St. § 40-1201 et seq.; and

Second — That under the terms of the Indiana Act, an employee in that State injured and damaged by reason of his employer's violation of a statutory duty is not restricted to the remedy afforded him by the Compensation Act, but may sue at law for damages for such violation of statutory duty.

The only case cited by appellant to support his first contention is Pearson v. Rogers Galvanizing Co., 115 Ind.App. 426, 59 N.E.2d 364. That was an action by an employee, Pearson, against his employer to recover damages charged to have been sustained because of the employer's negligence. The particular negligence charged was that the employer failed to provide a safety device for an overhead travelling chain hoist, which, because of such failure, left its track and dropped upon the plaintiff. In a second paragraph of the complaint, the employer's failure to provide a safety device was charged to have been "wilful and wanton."

It was claimed in that case, as it is here, that the injury and damage sustained by the plaintiff was not the result of...