Whirlpool Corporation v. Morse

• Decision Date: 13 June 1963
• Docket Number: No. 3-62-Civ. 287.,3-62-Civ. 287.
• Citation: 222 F. Supp. 645
• Parties: WHIRLPOOL CORPORATION, a Delaware corporation, Plaintiff, v. Leland S. MORSE and Arthur Kraniger, Jr., co-partners doing business as Morse Tuckpointing Company and Morse Tuckpointing Co., Inc., a Minnesota corporation, Defendants.
• Court: U.S. District Court — District of Minnesota

222 F. Supp. 645

WHIRLPOOL CORPORATION, a Delaware corporation, Plaintiff, v. Leland S. MORSE and Arthur Kraniger, Jr., co-partners doing business as Morse Tuckpointing Company and Morse Tuckpointing Co., Inc., a Minnesota corporation, Defendants.

No. 3-62-Civ. 287.

United States District Court D. Minnesota. Third Division.

June 13, 1963.

James P. Miley and Israel E. Krawetz, St. Paul, Minn., for plaintiff.

James Geraghty, St. Paul, Minn., for defendant Morse Tuckpointing Co.

LARSON, District Judge.

This matter came on for trial before the Court without a jury and was tried April 26 and April 29, 1963. Firestone, Fink, Krawetz, Miley and O'Neill, by Messrs. James P. Miley and Israel E. Krawetz, appeared on behalf of the plaintiff Whirlpool Corporation; Altman, Geraghty & Mullaly, by Mr. James Geraghty, appeared on behalf of the defendant Morse Tuckpointing Co. The Court having heard the evidence and having considered the oral and written arguments of counsel, and being fully advised in the premises, now makes the following Findings of Fact, Conclusions of Law and Order for Judgment.

FINDINGS OF FACT

I.

Plaintiff is a Delaware corporation, having its principal place of business in Chicago, Illinois, and is engaged in the manufacturing business. The plaintiff operates a manufacturing plant in St. Paul, Minnesota. The defendant is a Minnesota corporation, having its principal place of business in St. Paul, Minnesota, and is engaged in building restoration and repair work.

II.

This Court has jurisdiction under 28 U.S.C. § 1332 by reason of the diversity of citizenship between the parties and the fact that the amount in controversy exceeds the sum of $10,000 exclusive of costs and interest.

III.

On or about August 24, 1956, the plaintiff decided to have certain sandblasting done on exterior masonry elevations on one of its buildings in St. Paul, Building Number 17, and upon completion of the sandblasting, to have the masonry repaired and waterproofing applied to all the outside masonry surfaces which were to be sandblasted.

IV.

The matter was discussed with the defendant Morse Tuckpointing Company and thereafter the Morse Tuckpointing Company did submit an offer in writing to perform the work. In the written offer, the price was quoted and the work to be done described. The offer contained also the following: "The above quoted prices include all operations; complete insurance coverage, wages, material, taxes, equipment, power tools, and any other expense necessary to complete a first class job. Water and electricity to be furnished by the building owner. The cleaning of windows is not included in this proposal. * * * Work to be executed in a neat and workmanlike manner. All work to be done by men fully insured, thoroughly experienced and specializing in this particular type of work. * * * This is highly specialized work and if desired, we will provide a safe and easy way for you or anyone representing you to inspect this work as it progresses." The offer had a space typed in for signature and acceptance by the plaintiff.

V.

The defendant's proposal to the plaintiff was not signed and accepted by the plaintiff in the space provided on the proposal. Instead, the plaintiff submitted a purchase order to the defendant, which the defendant accepted. This document constitutes the written contract between the parties with regard to the cost of the work. The purchase order did not contain any of the above mentioned terms and conditions as to the work being done in a neat and workmanlike manner by experienced workmen, but the parties probably still felt and the Court finds that the defendant was bound by these warranties in its proposal. The purchase order did provide, inter alia, as follows:

"14. COMPLIANCE WITH LAWS — The seller agrees to comply with all applicable state, federal and local laws and executive orders and regulations issued pursuant thereto."

VI.

The defendant's insurance policies did not contemplate defense of third parties against suits such as brought by defendant's employee Kruezkemper against the plaintiff here. With that exception, the defendant's policies in force on April 10, 1957, provided complete insurance coverage. Prior to submitting the purchase order to the defendant, the plaintiff requested that the defendant submit all of its insurance policies to the plaintiff for examination. The plaintiff was fully aware at the letting of the contract that the defendant's insurance policies did not include provision for defense of suits such as was brought by Mr. Kruezkemper.

VII.

The work was to be done on Building No. 17, attached to the side of which is a conveyor housing. The roof of this conveyor housing is about 60 feet above the ground. Below this conveyor housing is another conveyor roof. The upper conveyor roof was pitched. For the apparent purpose of facilitating walking along the pitched roof, there were 2 × 4's running the entire length of the roof near its center. These 2 × 4's were attached to the roof by metal cleats held in position by ¼ inch steel bolts. The roof was made of corrugated steel.

VIII.

The contract was dated October 9, 1956, and some work was done by the defendant in the fall by some of the same employees who returned in the spring of 1957 to complete the work. On April 10, 1957, a crew of three of the defendant's employees came to Building No. 17 to engage in the work, one of whom was Eugene L. Kruezkemper. Mr. Kruezkemper had been at the building the previous fall and had walked along the roof in question then and, in fact, had walked along the roof in question the day before. Mr. Kruezkemper was experienced in working in high places, having been engaged in this general type of work for eight years.

IX.

In doing the waterproofing work the men worked from a stage swing which was suspended from the roof of the building. They would start working at the top of the building and gradually work down. From their position on the swing the men were able to waterproof a width of about twenty feet of the wall and then the swing would have to be moved over. The men had begun waterproofing on the east side of the south wall of the building and by about 11:30 A.M. on April 10, 1957, had moved the swing from right to left (east to west) about four times. To accomplish each move Mr. Kruezkemper had gotten off the swing, walked along the 2 × 4's to the west to a window, gained access to the building interior, and proceeded to the roof where he performed the necessary adjustments to the boom equipment which held the swing in place. About 11:30 A.M. Mr. Kruezkemper planned to leave the swing and proceed down the conveyor housing roof to the window, either because the snow which had begun to fall was forcing the termination of the work or because it was again time to move the swing. Mr. Kruezkemper was wearing shoes with Neolite soles. He stepped off of the stage and took one step on the 2 × 4's, when one of them broke and caused him to lose his footing and fall to the ground about sixty feet below. Mr. Kruezkemper suffered severe injuries and was in the hospital for three and one-half months.

X.

Mr. Kruezkemper received the benefits of Workmen's Compensation and some four years later filed a suit in tort against the Whirlpool Corporation, the plaintiff here, pursuant to the third-party provisions of the Minnesota Workmen's Compensation statutes. The present plaintiff notified the present defendant of the commencement of the action and tendered the defense of the action to the defendant, stating that the plaintiff would look to the defendant for indemnity of attorneys' fees if defendant declined the defense of the suit. The defendant refused to defend the action. Both Mr. Kruezkemper and the Whirlpool Corporation were represented by competent and able counsel. The counsel for Whirlpool found it necessary to spend some four hundred hours in preparation of the defense as "the trail was cold." Counsel's diligence uncovered some rather damaging evidence as to liability on Whirlpool's part (which evidence Mr. Kruezkemper's counsel never became aware of) but also came up with some good evidence with which to combat Mr. Kruezkemper's claim for $225,000. Though Mr. Kruezkemper's counsel had demanded $150,000 to settle the case, Whirlpool's local counsel was able to effectuate a settlement for $40,000. The Whirlpool Corporation then brought this action against the Morse Tuckpointing Co., alleging that the latter should indemnify the former for the $40,000 and the counsel fees and other expense which it had expended as a result of Mr. Kruezkemper's suit.

XI.

The 2 × 4's which were attached to the plaintiff's corrugated tin roof were approximately ten years old and were quite rotten on the inside, which was the reason that one of them broke on April 10, 1957, when Mr. Kruezkemper stepped on it. The age and condition of the 2 × 4's was not apparent to cursory examination as they had been painted over twice, the second time having been in 1956. The man who was in charge of the defendant's employees on that day testified that he had inspected the roof and the 2 × 4's for danger on numerous occasions in 1956 and the spring of 1957. He weighed 215 pounds ("heavier than the other boys") and he tested the boards by walking on them — while holding onto a fall line — as well as looking at them. He did not examine them "closely." Mr. Kruezkemper felt confident in walking on the 2 × 4's at the time of the accident for he had traversed the ill-fated 2 × 4 on three or four previous occasions that same day without any trouble.

XII.

The State Industrial Commission had issued at the time of this accident a Construction Safety Code which did not have the force and effect of law. This Code provides that for Painters' or Tuck-pointers' Scaffolds safety lines shall be provided "between each pair of hangers or falls." Section 56. Falls are the ropes on each end of the swing or scaffold...