Tice v. E. I. Du Pont De Nemours & Co.

• Decision Date: 02 December 1958
• Docket Number: No. 10957,10957
• Citation: 144 W.Va. 24,106 S.E.2d 107
• Parties: Arthur Wayne TICE, Jr. v. E. I. DU PONT DE NEMOURS & CO., a Corporation.
• Court: West Virginia Supreme Court

Page 107

106 S.E.2d 107

144 W.Va. 24

Arthur Wayne TICE, Jr. v. E. I. DU PONT DE NEMOURS & CO., a Corporation.

No. 10957.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1958.

Decided Nov. 25, 1958.

Dissenting Opinion Dec. 2, 1958.

Syllabus by the Court

1. In an action prosecuted in this State for recovery of damages for a personal injury received in a foreign jurisdiction, the substantive law of the foreign jurisdiction controls the right of recovery, but the adjective law of this State is applied and controls as to the remedy.

2. The question of survivability of a cause of action is one of substantive law.

3. An action for recovery of damages for a personal injury received in a foreign jurisdiction which survives by virtue of the substantive law of that jurisdiction, is for a matter of such nature that, in case a party die, the action can be brought by or against his personal representative, within the meaning of Code, 55-2-12, as amended, and the limitation of two years provided in Clause '(a)' of that section controls as to the time in which such an action may be brought.

4. Where, in the State of Ohio, an owner has engaged an independent contractor to perform certain work, and an employee of such independent contractor is injured at a place where he is not required or supposed to perform work, the owner is not liable in damages for neglect or failure to furnish such employee a safe place to work.

5. Where, in the State of Ohio, an owner engaged an independent contractor to perform certain work, such owner is not required to respond in damages for an injury to an employee of such independent contractor which resulted from an unusual occurrence that could not fairly have been anticipated or foreseen and was not within the range of reasonable probability.

Howard R. Klostermeyer, Spilman, Thomas, Battle & Klostermeyer, Charleston, Fred L. Davis, McCluer, Davis, McDougle, Stealey & Morris, Parkersburg, Carl E. Geuther, Wilmington, Del., for plaintiff in error.

Robert T. Goldenberg, Roger F. Redmond, Parkersburg, for defendant in error.

GIVEN, Judge.

Plaintiff, Arthur Wayne Tice, Jr., instituted an action of trespass on the case, in the Circuit Court of Wood County, against defendant, E. I. du Pont de Nemours & Co., for damages for personal injuries alleged to have resulted from the failure of defendant to furnish 'a good, proper, suitable and reasonably safe place' to perform work. Defendant demurred to plaintiff's first amended declaration, contending that plaintiff's alleged cause of action was barred, for the reason that it occurred more than one year prior to the institution of the action, and filed a special plea, based on the same contention. The trial court overruled defendant's demurrer to the amended declaration, and sustained a demurrer of plaintiff to the plea of the statute of limitations. On trial of the general issue, the jury returned a verdict for plaintiff in the amount of ten thousand dollars, and judgment for that amount was entered against defendant.

Defendant, engaged in the construction of a chemical plant, at Circleville, Ohio, entered into a contract with Armstrong Cork Company, whereby Armstrong, an independent contractor, agreed to insulate various pipes constituting part of the plant. Plaintiff, an employee of the independent contractor, not of defendant, was engaged in the insulation of the pipes at the time of the injury, May 7, 1954, in a room described as the caustic soda room. That room was about twenty feet square, with a ceiling approximately thirty feet high. In a corner of that roon an interior toilet, in size about seven feet, four inches by three feet, four inches by nine feet high, had been constructed. The walls of the toilet were of brick and the ceiling of transite, an asbestos-cement sheet of material about one-fourth inch in thickness.

To enable the workmen to reach the several pipes to be insulated, the pipes being about five to ten feet below the ceiling of the room and extending through the room, a scaffold about six feet in width was constructed and placed in position in the room. Attached to, as a part of the scaffold, near one end thereof, was a ladder. Defendant, in accordance with the agreement with the independent contractor, constructed the scaffold, but had no control over the placement thereof, or over the workmen engaged by the independent contractor, though there is some evidence to the effect that engineers of defendant advised the independent contractor as to the manner of the placement of the scaffold. At the time of the accident, the scaffold was so placed that the end thereof to which the ladder was attached, was practically against the side wall of the toilet. The scaffold, however, did not project over the top of the toilet. On the morning of the accident, plaintiff and another employee were directed by the independent contractor to insulate the pipes in the caustic soda room. They commenced work on that day at about 8:00 A.M., and continued to work in that room until the time of the injury, about 3:15 P.M. Immediately before the accident, plaintiff climbed from the top of the scaffold onto one of the pipes to be insulated and, astride the pipe, crawled thereon to a position over the toilet (a practice sometimes referred to as 'cooning'). While there engaged in the insulation of a pipe, he dropped his trowel, which fell to the top of the toilet. Plaintiff then descended from the pipe to the top of the scaffold, down the ladder to the top of the toilet, stepping from the ladder onto the top of the toilet for the purpose of reaching his trowel, when he broke through the covering over the top of the toilet, falling to the floor, causing the injuries complained of.

At the time of the accident, construction of the caustic soda room had not been completed and, apparently, some work was necessary to the completion of the toilet. There appears to be no question that at safety meetings plaintiff and other employees had been warned against the practice of 'cooning' pipes, though plaintiff testified that on the day of the accident he requested information as to how to insulate the pipes over the toilet beyond the end of the scaffold, and was instructed by his immediate superior, a foreman of the independent contractor, to 'Get it the best way you can'. Plaintiff was experienced in the type of work in which he was engaged at the time of his injuries.

We first consider the question relating to the applicable statute of limitations. To be significantly kept in mind are the facts that the action is one for personal injuries, not involving death of the injured or of the wrongdoer; that the cause of action arose in Ohio; and that the law of that State governs the substantive rights of the parties; but that the adjective law of this State, where the action was tried, controls the procedure. Saena v. Zenith Optical Co., 135 W.Va. 795, 65 S.E.2d 205; 4 M.J., Conflict of Laws, Section 34. A statute of limitations is considered part of the remedy, one of adjective law, so that the applicable statute of the state where trial is had is applied and governs. 4 M.J., Conflict of Laws, Section 39.

Code, 55-2-12, as amended, reads: 'Every personal action for which no limitation is otherwise prescribed shall be brought (a) within two years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative; and (b) if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued, and not after; and (c) every right of action mentioned above in clause (a) heretofore accrued shall be brought within two years hereafter or within five years from the time such action accrued, whichever shall be less.' An amendment, Chapter 2 of the Acts of the 1949 Legislature, reduced from five years to two years the period provided in Clause '(a)', quoted above.

From the language of the statute quoted, and from the decisions hereinafter mentioned, it is clear that had the cause of action here sued on accrued in this State, the period of limitation would be one year. But plaintiff contends that since, under the statute quoted above, the period of limitation is two years if the matter be 'of such nature that, in case a party die, it can be brought by or against his representatives', and since such action in Ohio is 'of such nature', the period of limitation as to the instant case is two years, the matter of the survival of the cause of action being one of substantive law, governed by the law of the place where the wrong was committed.

The applicable Ohio statute, Section 2305.21 (11235), Baldwin's Ohio Revised Code, reads: 'In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.' This statute makes it certain that such a cause of action as that here involved, in Ohio, is 'of such nature that, in case a party die, it can be brought by or against his representative'. In 1 C.J.S. Abatement and Revival § 135, it is pointed out that: 'The law of the state wherein a cause of action arose governs its survivability * * *'. See Goldstein v. Gilbert, 125 W.Va. 250, 23 S.E.2d 606; Grim v. Moore, 121 W.Va. 299, 3 S.E.2d 448; Keesee v. Atlantic Greyhound Corp., 120 W.Va. 201, 197 S.E. 522.

In West Virginia it is held: '1. The common law rule that an action for personal injuries, not resulting in death, does not survive the death of the wrongdoer, prevails in this state, and is not changed by Code, 55-7-5 (Lord Campbell's Act) as amended by Chap. 20, Acts of Legislature 1931. Said amendment relates only to actions for wrongful death.' Byrd v. Byrd, 122 W.Va. 115, 7 S.E.2d...