Smith v. Inter-County Tel. Co.

• Decision Date: 19 December 1977
• Docket Number: INTER-COUNTY,No. 59880,59880
• Citation: 559 S.W.2d 518
• Parties: Thomas Wayne SMITH, Respondent, v. TheTELEPHONE COMPANY and Telecom Engineers, Inc., Appellants.
• Court: Missouri Supreme Court

Page 518

559 S.W.2d 518

Thomas Wayne SMITH, Respondent, v. The INTER-COUNTY TELEPHONE COMPANY and Telecom Engineers, Inc., Appellants.

No. 59880.

Supreme Court of Missouri, En Banc.

Dec. 19, 1977.

Joseph K. Houts, St. Joseph, for appellants.

Jerold L. Drake, Grant City, for respondent.

FINCH, Judge.

Plaintiff, an employee of M. Summers Company, a general contractor which had a contract to perform a job which included laying underground telephone cables for The Inter-County Telephone Company, was injured when the walls of a trench in which he was working caved in on him. Plaintiff sued Inter-County and Telecom Engineers, Inc., an engineering firm which designed the project and which had a contract with Inter-County to inspect the job and make sure that it was built in accordance with the plans and specifications.

Plaintiff's petition alleged, among other things, that although Inter-County had contracted with Summers to do the work, including digging trenches and laying telephone cables, it retained the right to control the excavation and work; that it knew that the work which Summers was to do involved a high risk of injury to employees of Summers unless special precautions were taken; that Inter-County owed to the employees of Summers a non-delegable duty to take a special precaution to see that such injury did not occur; that steps such as shoring or bracing or sloping the sides of the trenches to avoid dangers of cave-in were not taken; and that as a result of such negligence plaintiff was injured.

In response Inter-County answered that it was not liable to plaintiff because it had contracted with Summers, an independent contractor, to do the work; that it did not retain control; that the work was not inherently dangerous; that Summers and plaintiff had accepted and were operating under the Workmen's Compensation Act; that plaintiff was a statutory employee under the act; and that his only remedy was under that act. The answer also pleaded contributory negligence.

The case was submitted to the jury on the basis of verdict directing instructions (set forth in full infra ) which called for recovery if defendants had the right to control the trenching and excavating and negligently failed to shore up or brace the trench adequately, resulting in injury to plaintiff. Contributory negligence instructions also were given. Plaintiff obtained a verdict and judgment for $15,000 against both defendants. They appealed to the Missouri Court of Appeals, Kansas City District, which reversed. On application of plaintiff, the case was transferred here and we now decide it as though here on direct appeal. We reverse and remand as to Inter-County and reverse as to Telecom.

Inter-County contracted with Telecom to design and plan a project for rehabilitating and improving 190 miles of existing telephone lines and facilities and adding some new lines. Permission to lay underground cables along and under public roads of the county was obtained from Worth County. Inter-County then contracted with Summers to construct the system. Telecom, under its contract with Inter-County, was to perform the job of inspecting materials and workmanship on the job.

The main telephone cable which was installed along the road right-of-way was buried automatically at a depth of 30 inches by use of a vibrating plow. Customer connections which ran from the main cable were buried at a depth of 24 inches in trenches dug by hand or with a backhoe. When it was necessary for the line to cross an existing highway, a two inch pipe was driven under the highway. To accomplish this a trench perpendicular to the highway was excavated on one side of the highway and a trench parallel to the highway was dug on the other side. After the trenches were dug to the required depth, the backhoe was used to push the pipe under the highway from the perpendicular ditch to the parallel ditch and the cable then was threaded through the pipe.

Plaintiff was employed by Summers in April 1971 and was assigned to digging the lateral ditches for customer connections. On May 14, 1971, plaintiff reported for work at contractor's building. It had rained and, except for some employees who wanted to work, most of the employees had been laid off. A crew was dispatched to push a pipe for the main cable under a highway and plaintiff was assigned to it.

When the crew arrived at the site where the highway crossing was to be installed, the backhoe operator first dug perpendicular and parallel ditches adjacent to the highway. The perpendicular ditch, which was on the east side of the highway, was approximately 20 feet in length. The depth of the ditch ranged from about 4 feet at the highway to about 12 feet at its east end because the land sloped upward from the highway. It was somewhat wider than the width of the backhoe bucket with which it was dug. The walls were vertical and were not braced or shored in any manner.

When the ditch had been completed, plaintiff and Ernie Gardner, another employee, entered the ditch and aligned the pipe to be driven under the highway. It was then pushed under the highway with an applicator for pushing pipe which was attached to the backhoe. When the first section had been pushed under the highway the two men then knelt in the ditch to screw a second section onto the first. It then was pushed under the highway after which the men knelt to attach a third section of pipe. Gardner was at the shallow end of the ditch. Plaintiff was toward the deeper end, testimony placing the depth at that point at somewhere between 6 and 12 feet.

While they were attaching the third section of pipe, plaintiff heard someone "holler." He stood up and looked around and saw the north wall of the trench collapsing. He put his hands up against it and remembered dirt going over his head. Others in the crew said that he just disappeared from view but that when the dirt had settled around him, he was buried to his chest and shoulders. His fellow employees then jumped in and dug him out.

Other portions of the evidence will be recited in connection with our discussion of the various issues raised.

Inter-County's first assignment on appeal is that the trial court erred in failing to direct a verdict in its favor. Its motion for a directed verdict alleged that the construction of this project was being performed by Summers, an independent contractor; that plaintiff was Summers' employee; that the work being performed was not in and of itself dangerous but became dangerous only by reason of negligence of the independent contractor and its employees in doing the work; that Inter-County owed no duty to plaintiff; and that it had not been negligent.

Plaintiff offered no evidence that either Inter-County or Telecom exercised physical control over Summers' employees. The testimony of defendants' witnesses was to the effect that they did not exercise such control and did not direct how the job was to be performed, their work being limited to activity designed to make certain that construction was according to the plans and specifications. Plaintiff did offer in evidence the contracts between Summers and Inter-County and between Inter-County and Telecom. Because the project was being financed by REA, these contracts were on standard REA forms. Provisions therein gave Inter-County, on its own or through Telecom, the right to inspect and to take steps necessary to secure proper performance, including quality of materials and workmanship, but such provisions did not destroy the intended relationship of owner and independent contractor. Williamson v. Southwestern Bell Tel. Co., 265 S.W.2d 354 (Mo.1954); Boulch v. John B. Gutmann Const. Co., 366 S.W.2d 21 (Mo.App.1963).

It is true, as Inter-County contends, that as a general rule one contracting with an independent contractor to do work is not normally liable for bodily harm caused to another by a tortious act or omission of the independent contractor or his servants. However, there is a well established exception to that rule where the work subcontracted involves a special or inherent danger to others. This exception was described in Stubblefield v. Federal Reserve Board of St. Louis, 356 Mo. 1018, 204 S.W.2d 718, 722 (1947), as follows:

"One of the well recognized exceptions to the rule contended for by these two defendant-appellants is that, 'One who employs an independent contractor to do work, which the employer should recognize as necessarily requiring the creation during its progress of a condition involving a peculiar risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions.' 2 Restatement, Torts, Secs. 413, 416. If the circumstances fall within this rule a primary, non-delegable duty is imposed upon the employer or here upon the owner and general contractor and they may not escape that duty or responsibility upon the plea of independent contractor. Annotations 23 A.L.R. 984; 115 A.L.R., l.c. 977."

Stubblefield involved injury to one walking by a bank building under construction who was hit by a wooden wedge which fell from near the top of the building. The building owner and the general contractor contended that they were not liable because of negligence of a subcontractor, an independent contractor, or his employees. They also contended that the work was not inherently dangerous and that consequently they had no obligation to erect barricades or warn pedestrians. This court held the subcontractor relationship does not insulate the owner or contractor from liability when the injury results from danger inherent in the work subcontracted. Consequently, it affirmed the action of the trial court in setting aside a verdict for defendants and granting plaintiff a new trial against the building owner and the general contractor. Other cases which also recognize this exception...