Stancil v. United States, 7821.

• Decision Date: 26 May 1959
• Docket Number: No. 7821.,7821.
• Parties: Rosa L. STANCIL, Administratrix of the Estate of George Ben Stancil, deceased, Appellant, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

267 F.2d 268 (1959)

Rosa L. STANCIL, Administratrix of the Estate of George Ben Stancil, deceased, Appellant, v. UNITED STATES of America, Defendant and Third-Party Plaintiff, Appellee.

No. 7821.

United States Court of Appeals Fourth Circuit.

Argued March 20, 1959.

Decided May 26, 1959.

Jerrold G. Weinberg, Norfolk, Va. (Fine, Fine, Legum, Weinberg & Schwan, Norfolk, Va., on brief), for appellant.

W. F. Powers, Jr., Asst. U. S. Atty., Norfolk, Va. (John M. Hollis, U. S. Atty., Norfolk, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, and BOREMAN and STANLEY, District Judges.

SOBELOFF, Chief Judge.

An action against the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) et seq., was instituted in the District Court to recover damages for the death of George Ben Stancil who was electrocuted on contact with a high tension wire on the Government's Pier No. 1 at the Hampton Roads Army Terminal in Norfolk, Virginia. Stancil's widow, as administratrix of his estate, charged that the death was due to negligent failure to insulate the wires and failure to warn Stancil of the latent danger, allegedly in breach of a non-delegable duty owed him by the Government as owner of the pier. The United States impleaded J. R. Houska Company, the general contractor who had been engaged to rehabilitate Piers 1 and 2 of the Terminal, and the painting subcontractor, Stancil's employer, Shaw Paint and Wallpaper Company. After a trial, the District Court entered judgment for the United States, and this appeal was taken.

The work contracted for was extensive; the time for performance, originally set at one year, was later enlarged to seventeen months. The floor area of the two piers is approximately 7½ acres. It was planned to continue normal operations in certain portions of the piers while in others repairs were in progress under the contract.

Painters did not work on the piers continuously during the life of the contract. Apparently they would be brought in whenever a portion of a pier was made ready for them by Houska or one of the subcontractors. A day or two before the fatal accident, the Government's inspector, Lassiter, had asked Houska's superintendent, Moyer, to send a man to paint in the area of Bay 58 which is on the northwest end of Pier No. 1. More than sixty men were then working on the pier; practically all of them at the northwest end. Precautions had been taken to protect the workmen in that area; the gantry cranes had been shifted to another part of the pier, and the electric wires supplying the cranes had been removed.

Instead of being sent to the northwest end of the pier, as the Government inspector had requested, Stancil was sent to the east end, 1100 feet away. It was while there engaged in painting, 30 or 35 feet above the pier level, that Stancil touched the live wire and met his death. Shaw's superintendent, Henniker, who directed Stancil to the east end of the pier testified that Houska's superintendent, Moyer, had requested the east end to be painted. In his testimony Moyer admitted this, and also that he failed to take measures to have the electrician cut off the power in that area. Lassiter testified that he did not know that anyone was working there at the time.

The District Court correctly stated that the essential question in the case was whether the Government's invitation to work extended at the time to the place where Stancil was working. Obviously the duty which a property owner owes to an invitee does not apply in places...