Stancil v. United States

• Decision Date: 09 January 1961
• Docket Number: Civ. A. No. 2497.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Rosa L. STANCIL, Administratrix of the Estate of George Ben Stancil, deceased, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party-Plaintiff, v. J. R. HOUSKA COMPANY, Inc., and Shaw Paint and Wallpaper Company, Inc., Third-Party-Defendants.

196 F. Supp. 478

Rosa L. STANCIL, Administratrix of the Estate of George Ben Stancil, deceased, Plaintiff, v. UNITED STATES of America, Defendant and Third-Party-Plaintiff, v. J. R. HOUSKA COMPANY, Inc., and Shaw Paint and Wallpaper Company, Inc., Third-Party-Defendants.

Civ. A. No. 2497.

United States District Court E. D. Virginia, Norfolk Division.

January 9, 1961.

Fine, Fine, Legum & Schwan, Louis B. Fine, Norfolk, Va., for plaintiff.

Joseph S. Bambacus, U. S. Atty., Richmond, Va., Breeden, Howard & MacMillan, R. R. MacMillan, Williams, Cocke, Worrell & Kelly, Jack E. Greer, Rixey & Rixey, Wm. B. Eley, Norfolk, Va., for defendant.

WALTER E. HOFFMAN, District Judge.

The facts of this case are, with certain exceptions hereinafter noted, sufficiently set forth in the prior reported opinions. Stancil v. United States, D.C.E.D.Va., 165 F.Supp. 656, judgment vacated and case remanded for new trial Stancil v. United States, 4 Cir., 267 F.2d 268. The Circuit Court of Appeals, while approving of the legal conclusions arrived at by the trial court, noted a portion of the testimony of the Government inspector, Lassiter, which carried an inference that Moyer, the general contractor's superintendent, may have been the Government's authorized agent in directing the decedent and Henniker, the superintendent for Shaw Paint and Wallpaper Company, Inc., a subcontractor, to paint the portion of the pier where Stancil, the decedent, was electrocuted. The appellate court had the benefit of the transcript of the evidence which was not available at the time the opinion was prepared by the trial court. The appellate court, while apparently recognizing that plaintiff had not sustained the burden of proving that Moyer was an authorized agent of the Government, vacated the judgment in the interest of justice, and remanded the case for the purpose of determining the limits of authority entrusted by the Government to Moyer.

The liability, if any, of the third-party defendants is not resolved by this opinion; the parties having elected to defer this issue until a later date. It should be noted, however, that the third-party defendants were represented at the hearings, and one of said parties accepted the court's invitation to participate in the trial and argument. The other third-party defendant, J. R. Houska Company, Inc., was represented by its counsel and elected to be an "observer".

It is now clear from the testimony that Moyer, the general contractor's superintendent, Henniker, Shaw's superintendent, and the deceased, were present at the job site at approximately 8 a. m. on April 30, 1957, which was the morning of the accident. Moyer, in the presence of Stancil, directed Henniker to paint the shore (or east) end of Pier No. 1, above the railroad tracks and, in addition, advised that there was another place to be painted. Moyer stated that, while Lassiter, the Government inspector, did not request that any particular place be painted, Lassiter had told Moyer that the Government wanted the east end of Pier No. 1 closed up with protective metal, and that this area had to be painted before the covering was affixed.

Thus it is apparent that the decedent, at the time of his death, was painting in an area where Moyer, the general contractor's superintendent, had directed him to paint. The uninsulated energized power lines running from the eastern side of the pier to the power pole had not been disconnected; nor had the power been cut off. In the course of performing his work, Stancil came into contact with one of these lines and was electrocuted.

We turn, therefore, to the crucial question in this case which is, as the Court of Appeals indicated, the authority, if any, entrusted by the Government to Moyer.

Moyer testified that the contractor worked all around the pier at various times, although, generally, the work was done in sections to facilitate the continuous use of the pier during the process of rehabilitation. There is no direct evidence to the contrary. The testimony of Lassiter, the Government inspector, is, at best, confusing.

There are two provisions of the contract between the Government and Houska which touch upon the issue. The section relating to Inspection is set forth in GC-19, and was sufficiently stated in the opinion of this Court, 165 F.Supp. at page 658. Under SC-17 entitled Co-ordination With Government Using Service, it is provided:

"Prior to beginning operations at the site of the work the contractor shall contact the appropriate representative of the Government Using Service to receive information concerning traffic requirements and to coordinate his operations with other operations being carried out on the Base. A minimum of one-half the pier length on one side of a pier will be made available to the contractor at one time. Insofar as is practicable the contractor shall complete all work in one area before moving to another."

From the language of the contract it is rather obvious that the concentration of work was to be in one area, but the contractor was permitted to work outside of that area on occasions.

The general procedure for cutting off the electrical current was for Lassiter to contact Moyer who, in turn, would contact Grotjan, the coordinator for the Army Terminal. Douglas, the electrician, would then be contacted and he would arrange for disconnecting the power. No one was supposed to work in any areas where electric wires were present unless...