Williams v. Fenix & Scisson, Inc.

• Decision Date: 24 September 1979
• Docket Number: No. 76-1452,76-1452
• Citation: 608 F.2d 1205
• Parties: J. D. WILLIAMS, Plaintiff-Appellant, v. FENIX & SCISSON, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1205

608 F.2d 1205

J. D. WILLIAMS, Plaintiff-Appellant, v. FENIX & SCISSON, INC., Defendant-Appellee.

No. 76-1452.

United States Court of Appeals Ninth Circuit.

Sept. 24, 1979.

Lester W. Miller, Anchorage, Alaska, for plaintiff-appellant.

Burr, Pease & Kurtz, D. A. Burr, Anchorage, Alaska, for defendant-appellee.

Appeal from the United States District Court for the District of Alaska.

Before WRIGHT, KENNEDY and TANG, Circuit Judges.

TANG, Circuit Judge.

This is an appeal from the judgment of the district court denying plaintiff's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Jurisdiction exists pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1291. We affirm.

The plaintiff, J. D. Williams, was injured while working on a drilling rig at Amchitka Island, Alaska. He sued Fenix & Scisson, Inc. for negligence, alleging Fenix & Scisson had undertaken a duty both voluntarily and contractually to oversee and supervise his work. At the close of trial, the trial judge ruled that Fenix & Scisson had no contractual duty toward the plaintiff; hence, the issues presented to the jury were whether Fenix & Scisson had voluntarily assumed a duty to the plaintiff to oversee his work; whether Fenix & Scisson was negligent in performance of that duty; and whether the negligence proximately caused the plaintiff's injury. The jury returned a verdict in favor of the defendant.

Plaintiff's motion for judgment n.o.v. or, in the alternative, for a new trial were denied. On appeal, the plaintiff urges that the trial court erred in two respects. First, he alleges that the trial court improperly ruled on the issue of contractual duty to supervise. Second, the court erred in refusing to qualify a particular witness as an expert. We have considered these issues and affirm.

As a preliminary matter, we note that a motion for judgment n.o.v. may be entertained only if the movant has made a motion for a directed verdict at the close of all the evidence. Rule 50(b), Fed.R.Civ.Pro.; 5A Moore's Federal Practice, P 50.08. The record discloses that plaintiff never moved for a directed verdict. Therefore, his motion for judgment n.o.v. has no legal effect, and we will treat his motion solely as one made for a new trial. Sears v. Pauly, 261 F.2d 304 (1st Cir. 1958), Rule 59(a), Fed.R.Civ.Pro.

The Contractual Issue :

The following facts are necessary to determine whether Fenix & Scisson had any contractual duty to the plaintiff. Williams, the plaintiff, was employed by Parco, Inc. and was not employed by Fenix & Scisson. Both Parco and Fenix & Scisson were each prime contractors that had individually contracted with the Atomic Energy Commission (AEC) for work at Amchitka Island. The AEC contracted with Parco to drill certain test holes at Amchitka in conjunction with hydrological testing. The AEC contracted with Fenix & Scisson to furnish engineering services in connection with the drilling and mining operations at the island. At the time Williams was injured, there were seven Parco employees on the job, including Williams, and one Fenix & Scisson employee on the job. The injury occurred while Parco employees were using an air hoist line and chain to lift a thirty foot section of pipe from a storage hole on the drilling rig. The pipe slipped as it was being lifted and hit Williams, causing severe injuries. Williams alleged the pipe was handled in a negligent manner. Whether Fenix & Scisson had a contractual obligation to Williams to see that the pipe was handled in a safe manner is the question before the Court.

The plaintiff contends that two provisions of the contract between the AEC and Fenix & Scisson established a contractual duty towards the plaintiff. The first provision, paragraph 12 of the contract, required that Fenix & Scisson inspect drilling operations at Amchitka and recommend any improvements to the AEC. ¹ The second provision, paragraph A-27, required Fenix & Scisson to take reasonable safety precautions in the performance of its work. This second provision was essentially a "boilerplate" paragraph which was also found in the contract between Parco, Inc. and the AEC. ² The plaintiff argues further that the contract was supplemented with a letter from the AEC to Fenix & Scisson whereby Fenix & Scisson had the responsibility for "overall industrial safety" and, furthermore, to report directly to the AEC. ³

This contract was one entered into solely between the AEC and Fenix & Scisson, an independent contractor. The plaintiff presumes that if these contractual provisions were breached by Fenix & Scisson, then liability flows to him as a matter of course. However, neither Williams, nor his employer, Parco, Inc. was a party to this contract. Since Williams was not a party to the contract, the primary question is whether Williams was an intended third party beneficiary of the contract between the AEC and Fenix & Scisson. It is a general rule of law that before recovery can be had under a contract by a third party, he must show that the contract was made for his direct benefit. German Alliance Ins. Co. v. Home Water Supply Co., 226 U.S. 220, 230, 33 S.Ct. 32, 57 L.Ed. 195 (1912); King v. National Industries, Inc., 512 F.2d 29 (6th Cir. 1975); Martinez v. Phillips Petroleum Co., 283 F.Supp. 514 (D.Idaho 1968), Aff'd. 424 F.2d 547 (9th Cir. 1970). There are three types of third party beneficiaries: donee beneficiaries, creditor beneficiaries, and incidental beneficiaries. Isbrandtsen Co. v. Local 1291, Etc., 204 F.2d 495 (3rd Cir. 1953). Only creditor and donee beneficiaries have potential rights under a contract:

"A third party . . . has an enforceable right by reason of a contract made by two others (1) if he is a creditor of the promisee or of some other person and the contract calls for a performance by the promisor in satisfaction of the obligation; or (2) if the promised performance will be of pecuniary benefit to him and the contract is so expressed as to give the promisor reason to know that such benefit is contemplated by the promisee as one of the motivating causes of his making the contract. A third party may be included within both of these provisions at once, but need not be. One who is included within neither of them has no right, even though performance will incidentally benefit him." 4 Corbin, Contracts § 776 at 18, 19 (1951) (footnotes omitted).

Accord, King v. National Industries, Inc., supra; Isbrandtsen Co. v. Local 1291, Etc., supra.

It is clear that the plaintiff was not a creditor of the promisee (the AEC). Furthermore, plaintiff was not a donee beneficiary since there was no indication in the contract to give the promisor, Fenix & Scisson, "reason to know" that such benefit was contemplated by the AEC as a motivating cause for making the contract.

The contractual provisions required Fenix & Scisson to perform certain inspection and safety duties and then report back to the AEC but there was no duty under any provision of the contract to supervise the work of Parco, Inc. It is clear, moreover, that Parco was an independent contractor who was to supervise completely its own employees and drilling operations. In neither the Fenix & Scisson contract nor the Parco contract was there any contractual provision suggesting that either Fenix & Scisson or Parco would provide the other with supervision, personnel, materials, tools or anything else. Any benefit derived from the Fenix & Scisson contract was to the AEC, not Parco or Williams.

The right to inspect to see that provisions of the contract are carried out and the right to require safety regulations to be followed is not such control as to impose liability to the employee of an independent contractor. See West v. Morrison-Knudsen Co., 451 F.2d 493 (9th Cir. 1971); Moushey v. United States Steel Corp., 374 F.2d 561 (3rd Cir. 1967); DeVille v. Shell Oil Co., 366 F.2d 123 (9th Cir. 1966).

We agree with the district court determination that at best Williams was merely an incidental beneficiary of the Fenix & Scisson and AEC contract. As an incidental beneficiary, Williams has no rights under the contract against Fenix & Scisson. The district court properly withdrew this issue from the jury.

Plaintiff seeks to rely on various extrinsic evidence to support his contention that Fenix & Scisson had a contractual duty to him. Such evidence is important only if the contract is ambiguous. United States v. Haas & Haynie Corp., 577 F.2d 568 (9th Cir. 1978). The contract is unambiguous since there is no suggestion whatsoever that Williams was an intended beneficiary of the contract. Contracting parties are presumed to act only for themselves unless there is a clear expression of an intent to benefit a third party. German Alliance Ins. Co. v. Home Water Supply Co., Supra.

The Expert Witness Issue:

Williams further alleges that the trial court erred in refusing to qualify one of his witnesses, Kenneth Willits, as an expert in the proper method of handling the pipe which caused Williams' injury. The trial court was of the view this was not a proper subject for expert testimony. However, the court did allow Kenneth Willits to testify as to his own experience in the handling of the particular pipe involved. He also was allowed to testify as to his personal opinion that the pipe was being handled in an unsafe manner at the time of the accident. Specifically, Willits testified that it would have been safer to use a choker cable to move the pipe rather than to use the chain that was actually used at the time of injury.

A trial judge has broad discretion in the matter of the admission or exclusion of expert evidence, and his action must be sustained unless manifestly erroneous. Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962).

Willits was allowed to testify as to his personal opinion on how to handle the pipe. We find it doubtful that testimony "as an expert" was needed to aid the jury...