Titan Steel Corporation v. Walton, 8156

• Decision Date: 07 October 1966
• Docket Number: No. 8156,8157.,8156
• Citation: 365 F.2d 542
• Parties: TITAN STEEL CORPORATION, a corporation, Appellant, v. Jeanette WALTON, Administratrix of the Estate of Robert Walton, deceased, Rust Engineering Company, a Delaware Corporation, and Kennecott Copper Corporation, a New York Corporation, Appellees. RUST ENGINEERING COMPANY, a Delaware Corporation, Appellant, v. Jeanette WALTON, Administratrix of the Estate of Robert Walton, deceased, and Kennecott Copper Corporation, a New York Corporation, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

365 F.2d 542 (1966)

TITAN STEEL CORPORATION, a corporation, Appellant, v. Jeanette WALTON, Administratrix of the Estate of Robert Walton, deceased, Rust Engineering Company, a Delaware Corporation, and Kennecott Copper Corporation, a New York Corporation, Appellees.

RUST ENGINEERING COMPANY, a Delaware Corporation, Appellant, v. Jeanette WALTON, Administratrix of the Estate of Robert Walton, deceased, and Kennecott Copper Corporation, a New York Corporation, Appellees.

Nos. 8156, 8157.

United States Court of Appeals Tenth Circuit.

August 31, 1966.

Rehearing Denied October 7, 1966.

F. Robert Bayle, Salt Lake City, Utah (Wallace R. Lauchnor, Salt Lake City, Utah, on brief), for Titan Steel Corporation.

Ray R. Christensen, Salt Lake City, Utah, for Rust Engineering Co.

Jack L. Crellin, Salt Lake City, Utah (Donn E. Cassity, Leon A. Halgren, F. Robert Bayle, Wallace R. Lauchnor, Salt Lake City, Utah, on brief), for Jeanette Walton, Administratrix of Estate of Robert Walton, Deceased.

George W. Latimer, Salt Lake City, Utah (Calvin A. Behle, Salt Lake City, Utah, on brief), for Kennecott Copper Corporation.

Before MURRAH, Chief Judge, and PHILLIPS and PICKETT, Circuit Judges.

MURRAH, Chief Judge.

Rust Engineering Company appeals from a judgment on a jury verdict in a wrongful death action by the Administratrix of a Titan Steel Corporation employee against Rust and Kennecott Copper Corporation, Kennecott having been exonerated by the jury verdict. Titan Steel Corporation appeals from a judgment against it on Rust's third party complaint for the amount of the wrongful death judgment, attorneys' fees and costs under the indemnity provisions of a construction subcontract between Titan and Rust. Titan also complains of a joint and several judgment against it and Rust in favor of Kennecott on Kennecott's cross and third party complaints against them respectively for indemnity for attorneys' fees and costs incurred in the successful defense of the wrongful death action. And, Titan further complains of a judgment against it to indemnify Rust's liability to Kennecott on said joint and several judgment.

The complicated litigation arose out of a prime contract between Kennecott and Rust for the construction by Rust of a "material handling system" on the roof of a building owned by Kennecott and located in Garfield, Utah. Rust subcontracted with Titan to repair consequent roof damage and to enclose the system with galbestos sheeting. In the performance of the subcontract the decedent, Robert Walton, and three other Titan employees worked together replacing corrugated sheets of transite composing the roof of the building. These sheets overlapped and were bolted to 2 by 4 inch steel girts also called purlins laid horizontally at approximately 5 ft. intervals. The men were cautioned by prominent signs on the building to walk only on the girts or planks supported by the girts because the transite sheeting would not support the weight of a man.

During the course of the work, the men were confronted with the task of replacing a transite sheet, an edge of which lay under another transite sheet upon which rested a bundle of galbestos sheeting. The bundle was 3 ft. long, 2 ft. 8 inches wide, 1 ft. 6 inches deep, weighed 850 to 1,000 pounds, and rested directly on a 4 by 4 inch block of wood which lay under the center of the bundle and directly over a girt. Another 4 by 4 inch block lay under the down slope¹ end of the bundle on the ungirted portion of a sheet of the roof. In this position the bundle was balanced over the girt and tilted along the downslope of the roof. After some discussion between the men as to whether to move the sheets one at a time or as a bundle, Walton and two co-workers stood on a wood plank spanning two girts and attempted to roll or slide the galbestos bundle 6 inches to 1 ft. apparently along the girt in order to free the sheet to be replaced. In some way not entirely clear from the record, the bundle broke through the sheeting and, taking Walton and a co-worker with it, fell some 80 feet to the floor below causing Walton's death.

In this suit Walton's Administratrix claims that his death was proximately caused by Kennecott and Rust's failure to provide a safe place to work in that they negligently placed the galbestos bundle on the roof of the building and failed to require proper planking, safety belts and lines. Kennecott denied these allegations and affirmatively alleged that Rust and Titan had supervision and control over the work and the decedent employee with the duty to take all reasonable measures for his safety; that if the decedent's death was negligently caused, such negligence was solely chargeable to Rust and Titan. Alternatively, Kennecott pleaded assumption of risk, contributory negligence and the Workman's Compensation law of Utah as the Administratrix's exclusive remedy. Consistently with its affirmative defense, Kennecott filed a cross-claim against Rust and a third party claim against Titan outlining their respective duties to the decedent and invoking the indemnity provisions of Rust's contract and Titan's subcontract for any liability incurred in the suit.

Rust answered denying the Administratrix's charges and affirmatively alleged that Titan as an independent contractor completely controlled the work and alone owed the duty to provide the decedent with a safe place to work and necessary safety equipment, and that Titan's negligence proximately caused the decedent's death. Rust alternatively pleaded contributory negligence, assumption of risk and that the Administratrix's exclusive remedy was Workman's Compensation. It also filed a third party complaint against Titan alleging in substance its responsibilities and that under the indemnity provisions of the subcontract Titan was liable for any judgment against Rust and costs incurred in this suit. Titan specifically denied that it was liable to Kennecott and Rust under the provisions of the indemnity in the contract or subcontract for any negligence on its part or for their negligence and pleaded the Workman's Compensation Act as the Administratrix's sole remedy.

After evidence to a jury on the issues thus drawn, all parties defendant moved for a directed verdict. Carefully analyzing the facts, the court indicated that "the question of placing of loads", i.e. bundles of sheeting on the roof was the real issue; that "if it weren't for this one factor, I wouldn't hesitate at all in granting a motion for a non-suit." While the instructions were not perpetuated in the record, it seems to be agreed that the plaintiff's case was submitted to the jury on the question of the existence of a trap along with the defenses herein outlined.

In the answer to agreed interrogatories, the jury specifically found that Kennecott was guilty of negligence, but that such negligence was not the proximate cause of Walton's death; that Rust and Titan were each guilty of negligence proximately causing Walton's death; that Walton was also guilty of negligence, but that his negligence was not the proximate cause of his death, i.e. he was not guilty of contributory negligence. The jury found that the reasonable compensation for the damage suffered by the surviving widow as the result of the wrongful death of her husband was $75,000. Having concluded that the special verdict resolved all questions of fact concerning the liability of all the defendants to the plaintiff, the court entered a judgment in favor of the Administratrix and against the defendant Rust for $75,000 and costs. It retained jurisdiction to make findings and enter appropriate orders on the indemnity agreements as well as subrogation rights under the Compensation Act.

The appellants then moved to set aside the jury's findings and the judgment based thereon and for a judgment of "no cause of action" in accordance with their motion for a directed verdict. The grounds for the motion were that there was no evidence that the defendants owed or breached any duty proximately causing Walton's death; that the only party owing Walton any duty to furnish him a safe place to work was his employer Titan; that therefore his only available remedy was Workman's Compensation. They further urged their pleaded defense of contributory negligence and assumption of risk as a matter of law. They pointed to the jury finding of Walton's negligence and insisted that contrary to that finding such negligence was as a matter of law the proximate cause of his death. It is, of course, axiomatic that if Walton's found negligence was as a matter of law the proximate cause of his own death, he was guilty of contributory negligence barring recovery, and the law suit ends there.

Rejecting their contentions and sustaining the jury's findings, the trial court in a carefully considered memorandum distinguished this case from Milligan v. Capitol Furniture Company, 8 Utah 2d 383, 335 P.2d 619, in which the jury found that the plaintiff was negligent in walking across an icy sidewalk where he fell yet failed to find such negligence was the proximate cause of his fall. The Utah Supreme Court held that "His injury was the natural and probable consequence of his own negligence, and only one inference or deduction is permissible, hence the question of proximate cause is one of law." In our case the trial court referred to the several asserted acts of contributory negligence, i.e. failure to complain to the union steward, to use a gas mask, to request a safety belt, to utilize additional planking, and rationalized that it could not be logically said that all of the claimed acts were the natural and probable cause of death and that the general verdict of negligence could have been based on any or all of them.

We agree with the trial court that the findings of the jury that Walton's negligence was not the proximate cause of death is a permissible inference from the facts and theory of this law suit.

This brings us to the...