Trent v. Atlantic City Electric Co.

• Decision Date: 23 July 1964
• Docket Number: 14526.,14482,No. 14481,14481
• Citation: 334 F.2d 847
• Parties: James R. TRENT (Plaintiff) v. ATLANTIC CITY ELECTRIC CO., Gibbs and Hill, Inc. and Deepwater Operating Co. (Defendants) and Atlantic City Electric Co. (Defendant and Third-Party Plaintiff), v. GARDEN STATE CONSTRUCTION CO., Atlantic City Electric Co. and Deepwater Operating Co., Appellants. James R. TRENT (Plaintiff) v. ATLANTIC CITY ELECTRIC CO., Gibbs and Hill, Inc. and Deepwater Operating Co. (Defendants) and Atlantic City Electric Co. (Defendant and Third-Party Plaintiff), v. GARDEN STATE CONSTRUCTION CO., Atlantic City Electric Co., Appellant. James R. TRENT (Plaintiff) v. ATLANTIC CITY ELECTRIC CO., Gibbs and Hill, Inc., and Deepwater Operating Co. (Defendants) and Atlantic City Electric Co. (Defendant and Third-Party Plaintiff), v. GARDEN STATE CONSTRUCTION CO., Gibbs and Hill, Inc., Appellant.
• Court: U.S. Court of Appeals — Third Circuit

334 F.2d 847 (1964)

James R. TRENT (Plaintiff) v. ATLANTIC CITY ELECTRIC CO., Gibbs and Hill, Inc. and Deepwater Operating Co. (Defendants) and Atlantic City Electric Co. (Defendant and Third-Party Plaintiff), v. GARDEN STATE CONSTRUCTION CO., Atlantic City Electric Co. and Deepwater Operating Co., Appellants.

James R. TRENT (Plaintiff) v. ATLANTIC CITY ELECTRIC CO., Gibbs and Hill, Inc. and Deepwater Operating Co. (Defendants) and Atlantic City Electric Co. (Defendant and Third-Party Plaintiff), v. GARDEN STATE CONSTRUCTION CO., Atlantic City Electric Co., Appellant.

James R. TRENT (Plaintiff) v. ATLANTIC CITY ELECTRIC CO., Gibbs and Hill, Inc., and Deepwater Operating Co. (Defendants) and Atlantic City Electric Co. (Defendant and Third-Party Plaintiff), v. GARDEN STATE CONSTRUCTION CO., Gibbs and Hill, Inc., Appellant.

Nos. 14481, 14482, 14526.

United States Court of Appeals Third Circuit.

Argued January 20, 1964.

Decided July 23, 1964.

Rehearing Denied August 25, 1964.

COPYRIGHT MATERIAL OMITTED

Milton M. Borowsky, Philadelphia, Pa. (Abraham E. Freedman, Freedman, Landy & Lorry, Philadelphia, Pa., Sidney A. Brass, Newark, N. J., on the brief), for James R. Trent.

Herbert Horn, Atlantic City, N. J., (Lloyd, Horn, Megargee & Steedle, Atlantic City, N. J., McCord, Farrell & Eynon, by Sidney P. McCord, Jr., Haddonfield, N. J., on the brief), for Atlantic City Electric Co., Gibbs and Hill, Inc., and Deepwater Operating Co.

Samuel P. Orlando, Camden, N. J., for Garden State Const. Co.

Before BIGGS, Chief Judge, and FORMAN and GANEY, Circuit Judges.

BIGGS, Chief Judge.

This is an appeal by the defendants, Atlantic City Electric Company ("Electric Company"), Deepwater Operating Company ("Deepwater"), and Gibbs and Hill, Inc. ("Gibbs and Hill") from a judgment of $350,000. in favor of the plaintiff, James R. Trent, for injuries sustained as the result of an accident which occurred on November 15, 1956. The Electric Company as third party plaintiff has also appealed a judgment of no cause of action respecting its claim against the third party defendant, Garden State Construction Company ("Garden State").

Jurisdiction in the case at bar is based on diversity of citizenship and the law of New Jersey governs. The background facts are somewhat complex and need not be set out in full. The basic facts will be detailed in the paragraphs immediately following. Additional facts will be set out as required in the discussion of the particular issues.

I Facts

(A) The Electric Company was the owner of the buildings and equipment of a power plant located at Deepwater, New Jersey. This plant furnished electricity to customers in the area. It was operated by Deepwater which was a wholly owned subsidiary of the Electric Company.

In January 1956 the Electric Company decided to have the capacity of the Deepwater plant expanded. On January 6, 1956 the Electric Company entered into a contract with Gibbs and Hill under which the latter agreed to perform the engineering and construction services on the Deepwater project. Gibbs and Hill was an engineering company engaged in construction.

On March 21, 1956 Garden State contracted with the Electric Company to perform the electrical work on the Deepwater job. Garden State was an electrical contractor. The plaintiff, Trent, was an electrician of the highest classification, i. e., that of "journeyman," who was to be employed by Garden State on the Deepwater project.

The contract between the Electric Company and Gibbs and Hill in pertinent part provided: "We Gibbs and Hill propose to act as your Electric Company's engineers and constructors in connection with the design and installation of additional steam electric generating capacity at your Deepwater, New Jersey plant. * * * These services will be performed in cooperation with and at all times subject to the direction of you or your authorized representatives."

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"Acting as your engineers and constructors, we will work at all times in close cooperation with members of your organization, assuming as much responsibility as you may delegate to us, being guided in all respects by such instructions as you may from time to time give us. You will have full control of the work in all its phases, the selection and purchase of materials, machinery and equipment, letting of contracts, progress and sequence of the work, and all other questions. You may order additional work, cancel work previously authorized, or make other changes in either the scope or character of the work."

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"We will prepare and provide you, at regular intervals mutually agreed upon, with detailed progress reviews covering studies, design work, procurement of major and critical equipment, construction plans and progress, with the intent that you and we will mutually understand the status of progress.

"We propose to conduct our field construction work and to supervise the work of our field sub-contractors to the end that job progress is orderly, neat, and in accordance with good safety practices. We propose further to plan and conduct our work to maintain accomplishments in accordance with schedule and to actively pursue all opportunities to reduce costs either in the office, field, or in connection with material and equipment selection, purchase and/or handling."

The contract between the Electric Company and Garden State was prepared for the company by Gibbs and Hill. In relevant part it provided: "GIBBS & HILL, INC. are the Engineers pertaining to the work to be performed and the materials to be supplied under this agreement and are accepted as such by the parties hereto Electric Company and Garden State. All work provided for herein shall be done under the supervision and direction of the said Engineers or their representatives, and their decision as to the true construction and meaning of the drawings and Specifications shall be final and binding on the parties. In the performance of its work the Contractor Garden State agrees to cooperate with the Engineers and with all other contractors and subcontractors engaged by the Owner Electric Company in the construction of the said generating unit who may be on the premises while the work hereunder is being performed."

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"Contractor shall erect and maintain such danger signs, signals, red lights, guards, protective enclosures, platforms and notices as may be necessary to adequately protect the work and to protect all individuals against injury to their persons or damage to their property. The Contractor shall promptly replace any of the foregoing that must be removed temporarily during the progress of the work. If replacement is not properly made the Owner reserves the right to effect replacement at the expense of the Contractor.

"The Contractor shall provide and maintain for the protection of its employees such safety equipment, guarding and personal protective apparel as is prescribed for safe practices or as required by any law, ordinance rules or regulations or the exercise of ordinary prudence for the type of work being performed.

"The Contractor shall provide first aid equipment, supplies and competent administering of first aid as may be reasonably prescribed by good practice or as may be required by any laws for the care of injured personnel. Exceptions may be granted when the Owner has an established first aid station, dispensary or job hospital on or reasonably near the job site, in which case the Contractor may use such facilities on a cost per case basis as agreed to between the Contractor and Owner.

"The Contractor shall require its representatives to participate in the safety programs established by the Owner, including attendance at safety committee meetings as directed by the Owner. The Contractor shall, moreover, require its personnel to abide by the directives concerning job safety rules, regulations and safe practices thus established."

* * * * *

"The Contractor shall at all times have in charge of the work to be performed hereunder a competent superintendent, who is thoroughly familiar with the classes of work covered by the electrical drawings and Specifications. The said Superintendent shall represent the Contractor, and all instructions given to him shall be as binding as if given to the Contractor. He shall have full authority to execute such instructions.

"At the Engineers' request, the Contractor shall submit in writing to the Engineers a record of the past experience of the Contractor's Superintendent, giving the dates and locations of his work, and the nature of the Superintendent's position. If the Owner finds that the said Superintendent lacks sufficient experience, or decides during the progress of the job that the Superintendent lacks the qualifications necessary to direct the work in the manner required by the electrical drawings and Specifications, or finds that the progress of the job indicates that the date of completion of the work cannot be met due to the incompetence or inexperience of the Superintendent, then the Engineers shall have the right by written notice to the Contractor to request the removal of the Superintendent and his replacement with another Superintendent satisfactory to the Owner and the Engineers.

"The Owner or the Engineers may, directly or through their representatives, in writing request the dismissal by the Contractor or by any of its subcontractors of any foreman, workman, watchman or other employee whom the Owner or the Engineers deem incompetent, careless or otherwise a hindrance to the proper execution of the work; and the Contractor shall comply with such notice as promptly as practicable without detriment to the work."

Additionally the Electric Company-Garden State contract provided that a certain work-specifications document to be prepared by Gibbs and Hill was to form an integral part of the agreement. This document in pertinent part provided: "The Contractor shall execute, construct and finish the work in a...