Wells v. Morgan & Lindsey, Inc.
| Decision Date | 04 October 1949 |
| Docket Number | No. 3130,3130 |
| Citation | 42 So.2d 282 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | WELLS v. MORGAN & LINDSEY, Inc., et al. |
William J. Daly, New Orleans, H. Minor Pipes, Houma, for appellant.
Jones, Flanders, Waechter & Walker, New Orleans, Ellender & Wright, Houma, Elton A. Darsey, Houma, for appellees.
The plaintiff, Horace B. Wells, Jr., a carpenter, was employed by the firm of Morgan & Lindsey, Inc. to make certain repairs or alterations on its store building located at 524 E. Main St. in Houma, Louisiana, and while performing his work the ceiling of the second story of said building collapsed and plaintiff was crushed by the second story floor and goods stored therein resulting in severe personal injuries for which he sues herein. It is alleged and shown that the building belonged to Miss Alice Blahut and was under lease to Morgan & Lindsey, Inc. The building is a two-story building approximately 40 feet wide and 90 feet deep. The store occupied the whole of the lower floor and the rear 30 feet of the second floor. The rear 30 feet of the second floor was used by Morgan & Lindsey as a storeroom for storing excess stock.
It appears that in July of 1946 it was discovered that the floor of this storeroom vibrated, and for that reason the store manager, Mr. G. H. Bedgood, was instructed by an official of the company to have the supporting columns of this stockroom replaced and, finally, plaintiff, Wells, was employed to do this job. On August 6, 1946 while performing his duties in replacing the two columns, which were felt to be insufficient to hold up the ceiling of the stockroom, the ceiling collapsed and, together with the merchandise stored in the stockroom, fell upon the plaintiff.
He alleges that the accident was caused by vices or defects in the building and that, in effect, by being employed to replace two posts in said building, a large part of it, including the part he was to work in, had been burned from a fire previous to the repair work, had caused the vices or defects alleged, he walked into a trap. Plaintiff further alleges that the defendant Morgan & Lindsey, against his protest, continued to load goods and merchandise in the storeroom during the time that he was performing his work as carpenter.
On these alleged facts, he contends that the accident was caused solely by the gross negligence of Miss Alice Blahut, owner of the building, because of the vices and defects in the building, well known to her and not plaintiff, and also by the gross negligence of the defendant Morgan & Lindsey, Inc., in storing goods and merchandise, in spite of his protest, in the storeroom and thereby adding additional weight on the weak columns which he was attempting to replace. He therefore claims damages in tort against Miss Blahut, Morgan & Lindsey, Inc. and against Liberty Mutual Insurance Company of Boston as insurer of Morgan & Lindsey.
In the alternative, plaintiff alleges that he was an employee of Morgan & Lindsey; that carpentry is a hazardous occupation; and that in so far as the operations of plaintiff are concerned, Morgan & Lindsey were engaged in an occupation properly classified as hazardous under the compensation act. Act No. 20 of 1914, as amended.
The defendants admit the allegation that the building was owned by Miss Alice Blahut and leased by Morgan & Lindsey, Inc. They further admit that on August 6, 1946, plaintiff did sustain the accident alleged, resulting in serious personal injuries. Defendant Blahut denies that there were any vices or defects in the construction of the building and denies any liability to the plaintiff. The defendant, Morgan & Lindsey, Inc., denies the material allegations of plaintiff's petition and avers that plaintiff was an independent contractor employed to perform the job of replacing two wooden supporting columns with two steel posts; that he was employed as an expert carpenter for that purpose after he had full opportunity to inspect the premises and to ascertain what the job was; that he had complete control and supervision of the work to be done at a stated compensation and that consequently he was an independent contractor. The defendant, Morgan & Lindsey, Inc., and its insurer, further aver that they were guilty of no negligence whatsoever contributing to his accident, and in the event that any vice or defect existed in the building they deny responsibility therefor, since the building was merely leased and they had no knowledge or information of any defect or vice. In the alternative, in answer to the tort claim, these defendants allege that even if negligence should be found on their part, which is denied, then, in that event, it must be found that the plaintiff was guilty of contributory negligence. Their contention of contributory negligence is based on the allegation that plaintiff, who is supposed to be an expert carpenter, through negligence or lack of skill, failed to support the beam or joist on the ceiling while removing one of the old wooden columns, with a house jack or by other means, in a proper manner, and that this negligence was the real cause of the collapse. The defense to the claim for workmen's compensation is to the effect that the plaintiff was not an employee in that he was an independent contractor and to the further effect that Morgan & Lindsey, Inc. were engaged in the retail merchandise business which is non-hazardous under the workmen's compensation act.
After trial of the case, the district court rendered judgment in favor of the defendants dismissing plaintiff's suit at his costs. Plaintiff has appealed.
The trial judge has not favored us with written reasons for his judgment but it appears apparent that he must have concluded from the evidence, (a) in so far as the compensation claim is concerned, that the plaintiff was not an employee under the terms of the compensation act but on the contrary was an independent contractor and/or that Morgan & Lindsey, Inc. were not engaged in a hazardous occupation under the terms of the workmen's compensation act; (b) that the accident was not caused by any vice or defect in the building or by any negligence on the part of the defendants and/or that the plaintiff was guilty of negligence which caused or contributed to the accident.
The record in this case is voluminous and consists of much repetitious testimony and testimony that is not very pertinent to the issues involved. It does not seem necessary to review this large record in detail because the important facts are pretty well established by the evidence even though there is some slight contradiction in the testimony.
It seems clearly shown that the building in question had been burned or charred some time previously to the decision to make the alteration involved herein. It is shown by the testimony of Mr. Corbin, who is referred to by plaintiff as the defendants' contractor and by defendant Morgan & Lindsey as an eminent contractor, that this building was repaired by him subsequent to the fire and that at that time some of the charred timbers were allowed to remain but new timbers with some reinforced iron, were placed where found necessary. Plaintiff's counsel strenuously contends that this is sufficient to show a vice or defect in the building but neither Mr. Corbin nor anyone else has testified that these charred timbers or lumber in any way affected the structure. It appears from that testimony that this charred timber or lumber was merely surplusage which did not strengthen but in no way weakened it. Mr. Corbin further testified that upon request of Mr. Bedgood, the manager of the store, he inspected the storeroom and the proposed work to be done in order to strengthen the second floor support and at that time he concluded that the job was not urgent. He, at the time, was busy with other work but stated at a later date that he could do the job. It appears that the plaintiff, who lived in New Orleans, learned about the proposed job through a relative of his who was employed by Morgan & Lindsey and he thereupon applied for the job and was given the job by Mr. Bedgood, the manager. Bedgood testified that an agreement was reached with plaintiff Wells that he would receive the sum of $365 in full payment for the work of replacing the two wooden posts with steel columns and that he, plaintiff, would furnish all labor and tools necessary for this work. Plaintiff denies that he made a fixed fee bid for the work and testified that he agreed to do the work on the basis of time, material and expenses. In any event, plaintiff arrived at Houma on August 6, 1946 accompanied by Mr. Worrell, another carpenter, whom he had employed to assist him. After plaintiff and Worrell had worked but a short time, plaintiff decided that he needed additional labor and he thereupon employed two Negroes, Morrison and Thomas, to assist in the work. At about 11:00 A.M. on August 6, 1946, while the plaintiff and Worrell and the two laborers were engaged in removing the first of the two posts to be replaced and were using a house jack in order to support the weight as a substitute for the posts being removed, the structure...
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