Robinson v. Republic Steel Corp. , 50 Ohio Law. Abs. 257 ( 1948 )

OPINION

By MORGAN, J.

The defendant, The Republic Steel Corporation, as an agent of the Defense Plant Corporation, entered into a contract with The Western Foundation Company by which the latter agreed to drive piles as footings for a blast furnace to be constructed on Campbell Road, Cleveland, Ohio. The Western Foundation Company brought to the job a “Marion 21 Pile Driving Rig” which had originally been designed as a steam shovel.

The plaintiff was employed to operate the “Marion 21” and on July 25, 1942, while it was being operated it overturned, causing the plaintiff to be pitched out of the cab of the crane and down twenty feet sustaining severe injuries.

The plaintiff brought this action against The Republic Steel Corporation and the Defense Plant Corporation, alleging that plaintiff’s injuries were caused by the negligence of these two companies. At the conclusion of the evidence, on motion, the Defense Plant Corporation was dismissed from the case by the court and the jury gave a verdict for the plaintiff and against the defendant, The Republic Steel Corporation, for $21,000.00 from which judgment the defendant appeals.

The principal claim of defendant is that the plaintiff was employed by an independent contractor, The Western Foundation Company, and that under the principles of law applying to independent contractors, the defendant is not liable.

The plaintiff rests his right to recover against The Republic Steel Corporation in this case on three propositions: (1) The Republic Steel Corporation directly issued the orders for and personally participated in performing the negligent act which caused the crane to tip and is therefore liable by reason of meddling interference and direct participation; (2) The Republic Steel Corporation under its contract with the Western Foundation Company had the right to specify the mode and manner of equipment to be used in the work. The “Marion 21” was a defective crane and notice of its defects had been brought to the attention of the defendant which is liable by reason of its failure to order the removal of the unsafe and defective equipment; (3) When it became apparent to The Republic Steel Corporation that its sub-contractor, The Western Foundation Company, was using dangerous and unsafe equipment it became its duty to act to prevent such use.

A boom 40 feet long was attached to the boom arm of the pile driver and there were fixed hammer leads 65 feet long, the tops of the hammer leads extending 25 feet above the top of the boom. These leads were metal tracks in which a five ton hammer travelled. To make suitable footings the piles were being driven at a thirty degree angle. The length of the piles was from 38 to 46 feet.

It is plaintiff’s claim that one Huffman, an engineer and employe of the defendant, designated by marking with yellow chalk the pile, to be next driven. The pile so directed by defendant’s employe to be raised at this time into the hammer leads was 52 feet in length. In order to accommodate this 52 foot pile it was necessary that the hammer be raised higher in the hammer leads than it had ever been' elevated before. This was the first 52 foot section of pile which had been driven on that job by that machine and it was the first time that the hammer had been raised to the top of the 65 foot leads elevated at an angle of thirty degrees from vertical. When the pile had been centered in the hammer leads the loft man, an employe of The Western Foundation Company, called “hammer down”. Huffman then gave a hand signal to plaintiff to let the hammer descend. The plaintiff then eased the hammer down by releasing the foot brake slowly so that the hammer could slide down the leads or hammer tracks by gravity.

' Later Huffman gave the plaintiff a hand signal to stop the descent of the hammer and plaintiff applied the hammer brake. As the brake was applied there was a slight jar and the pile driving rig tipped over and the boom and hammer leads crashed to the ground.

Thomas Forsythe was an assistant superintendent in charge of pile driving for the Hunkin-Conkey Construction Company on the same job. He testified that he had many years of experience in building, designing and remodelling pile driving cranes and that he had observed the operation of the ‘M 21’ rig about five or six times a day for a month before the accident. In his opinion the ‘M 21’ was overloaded, top heavy and unsafe for the work for which it was being used. He testified that it was dangerous and improper to drive a foot pile in that overloaded rig at a thirty degree batter because the hammer was forced to travel so far up and out that the rig would be overturned by the slightest jar.

Edward Wick, a Hunkin-Conkey Construction Company employee with 26 years experience in pile driving, also testified that the rig was overloaded by taking the hammer to the top of the 65 foot hammer leads which were set at a 30 degree angle.

The field engineer of the Republic Steel Corporation named Metcalf, was accustomed to call safety meetings and representatives of all sub-contractors were summoned to the meetings. Metcalf presided as chairman. Forsythe testified that in the latter part of June, 1942, about a month before the accident, he was present at such a safety meeting and in the meeting spoke as follows about the ‘M 21’ rig:

“I said, ‘Well, what do you think about that Marion there? Do you think that is a safe place to. work?’

He said, ‘what do you mean it isn’t safe?’

I says, ‘well, it is overloaded, it is topheavy, the least little tip, you don’t know, it will just quiver, when you get that hammer clean to the top it is liable to roll the thing over.’ I said, T don’t call that very safe.’

Q. To whom did you address your statements?

A. To Mr. Metcalf.

Q. Of Republic Steel?

A. Of Republic Steel,

Q. Now,' what if anything did Mr. Metcalf say?

A. Well, he said, ‘they are doing it, it ain’t rolled yet.’ I said, ‘well it ain’t never rolled yet but watch out; there will some fellow take that just a foot or two too high up, right to the head block, and just right there is the tipping point.’ ”

Wick also testified that he considered the ‘Marion 21,’ machine unfit for batter or angle pile driving.

“Q. Now, Mr. Wick, at the time Western was putting those long leads on that and had rigged this Marion 21 crane up for driving batter pile, did you make any report to Mr. Metcalf of Republic Steel about that condition and if so what did you report?

A. Yes, I spoke to him about it, but this had been done after I had condemned the crane.

Q. Yes? Well, what did you say about it?

A. I told him that I thought it was a dilapidated conteaption that it couldn’t do the work.

Q. Mr. Wick, putting the question this way: Did you report to Mr. Metcalf of The Republic Steel that you disapproved this particular rig as it was rigged up with those 65 foot leads for use as a batter pile driver?

A. I did.”

Most of the evidence of Forsythe and Wick as given above was denied by defendant’s witnesses. However, the1 truth or falseness of their evidence was for the jury to determine.

Shearman & Redfield’s Law on Negligence, (Rev. Ed) Vol. 1, See. 179 at page 419, reads:

“Another exception to the rule of the employer’s exemption from liability for the negligence of an independent contractor will be found in cases where the ‘employer personally interferes with the work and the acts performed by him occasion the injury.’ The foregoing statement would seem to constitute a circuitous trip around the simple proposition that any person may be-held responsible for his own wrongdoing.”

21 O. Jur., Sec. 22, p. 646, 647:

“* * Or, assuming that the contractor is independent, and that he has full control over the work, the employer’s liability may be based on his meddling and he will be held liable for the results of such intereference * *

McGrath v. Penh. Sugar Co. (1925) 292 Pa. 265, 127 Atl. Par. 6 of syllabus:

“6. An original contractor is liable for injuries to employee of independent contractor where caused by failure of former to keep premises in good condition or by neglect of" orders given for protection of employee or by interference of original contractor or his agents, amounting to assumption of control and direction of work-of employees.”

Three of plaintiff’s witnesses testified that Huffman, the Republic .Steel Corporation field engineer, marked and ordered the 52 foot pile into, the leads and afterwards gave the order for the hammer to be lowered and then stopped, at which time the crane overturned. Huffman denied, giving the orders and testified that he was eating his lunch forty feet away at the time of the occurrence. This again presented a jury question.

Plaintiff also maintains that under the contract between defendant and The Western Foundation Co., the former had the right to exercise control over, the equipment used by the latter company.

Article 1 of the contract provides:

“The contractor shall furnish materials, labor and equipment and perform the work for the driving of piles on a site to be provided by Owner at or in the vicinty of Cleveland, Ohio, all in accordance with the drawings and specifications to be furnished .by the Agent * *

Article 7 provides:

“* *,* Contractor shall at all times during the progress of the work, keep at the site thereof a qualified representative satisfactory to Owner, who shall receive and execute on the part of Contractor such * * * directions and instructions as Owner or Agent may give. * *

Metcalf who was in charge of the work for defendant testified concerning the right of defendant to control the equipment, as follows:

“Q. Well, in addition you were the head of all safety on the job because you called the safety meeting?

A. That is right. I called the safety meetings and got. the opinions of the men that work on the various pieces of equipment and around the job, to see that the job was in a safe condition.

Q. Now, if somebody had called your attention to a dangerous defect in a piece of equipment at such a safety meeting, you knew that you had the right and power to give directions and instructions to the contractor to correct the danger, didn’t you? - . ■

A.’ I would give instructions to him. That is right.

Q. Yes sir, and you had that right didn’t you?

A. That is right.

. Q. And if you went out yourself on that job and you saw a dangerous piece of equipment you had the right to tell him to' pull that off of there and not endanger the lives of men didn’t you?

A. That is right.”

It would seem from the evidence given above that the question of the participation in the operation and control over the equipment by defendant would present a jury question. Defendant attempts to avoid this result by reasoning that is more ingenuous than sound.

Defendant’s 16th assignment of error is as follows:

“The facts shown by the record and the law of this state clearly show that defendant appellant is entitled to final judgment in its favor by reason of the Workmen’s Compensation. Taw of the State of Ohio.”

The 4 and 5 assignments or error are as follows:

“4. The judgment of the-court of common pleas should have been for the Republic Steel Corporation for the reason that the evidence in this case establishes that Western Foundation Co., was an independent contractor and had exclusive control over the manner and method of performing the work of driving piles, including the furnishing of labor, material, the pile driver and other equipment necessary to perform the work..

5. The court erred in failing and refusing to determine’ as a matter of law that Western Foundation Co., was an independent contractor.”

The 16th assignment of error contending that defendant is entitled to final judgment “by reason of the Workmen’s Compensation Law of the State of Ohio” is quite inconsistent with its 4th and 5th assignments of error.

Defendant states in its brief that “if Western Foundation Co., was not an independent contractor The Republic Steel Corporation is entitled to final judgment in its favor as a matter of law” by reason of the Workmen’s Compensation Law.

Defendant in taking this position overlooks the fact that The Western Foundation Co., could be an independent contractor and at the same time defendant might participate in its operations and reserve certain rights over the equipment used by the independent contractor.

Defendant’s claim that plaintiff was its employe is wholly without foundation. No such defense is set up in defendant’s answer and the case was tried throughout in the trial court on the basis that plaintiff was an employe of an independent contractor, Western Foundation Co.

No charge was given by the court to the jury regarding plaintiff’s status as an employee of defendant and no such request to charge was made by defendant. It is evident that the claim is now advanced by reason of the fact that the jury has returned a verdict for plaintiff.

The -evidence is uncontradicted that plaintiff was hired and paid by The Western Foundation Company.

Under §1465-60 GC and 1465-61 GC the Western Foundation Company was the employer and the plaintiff was its employe.

The reservation by defendant of the control of the mode and manner of equipment used in the performance of the work by The Western Foundation Company and the participation by defendant in the operation of the equipment could not make the defendant plaintiff’s employer, as the reservation of such right could not create or constitute a contract of hire between plaintiff and defendant within the meaning of the Workmen’s Compensation Law. The defense that it was the employer and had complied with the Workmen’s Compensation Law was available only to The Western Foundation Company and not to defendant.

The other principal assignments of error have to do with the granting and refusal of charges before argument and the general charge.

In charging the jury, the trial judge stated:

“Now, in effect, then the Republic Steel Corporation denies, any hiring of this man and denies that he worked-for it, but says, on the contrary, that he worked for The Western Foundation Co., a separate corporation; that the Western Foundation Co. furnished all of the material and the appliances to be used by the plaintiff in the operation of driving piles into the ground. They, therefore, say that they had nothing whatsoever to do with it and were consequently not responsible for his injuries. That brings up the question of whether or not-Western Foundation Co. was an independent contractor. You are instructed on that subject as a matter of law that when work is contracted to. be done by a contractor and the owner or employer retains or exercises no control over the mode or manner or the appliances to be used in doing the work, and the work in and of itself is not dangerous but only becomes so by or through the negligence of the contractor, then the owner or agent of the owner, as in this case The Republic Steel Corporation, would not be liable for injuries resulting from the negligence of the contractor. In other words, if the independent contractor, The Western Foundation Company was not subject to the control and direction of the Republic Steel Corporation, the agent of the Defense Plant Corporation, as to the manner of doing the work and the appliances used in doing the work, and the acts charged as the cause of injuries were the acts of the independent contractor, then the Republic Steel Corporation the agent would not be liable under those circumstances.”

The trial judge also stated to the jury:

“I charge you it. is the law of this case that if you should find from a preponderance of the evidence that the Republic Steel Corporation, in the contract with the Western Foundation, did not retain control over the mode and the manner in which the work of pile driving was to be performed by Western Foundation and that the Republic Steel Corporation did not interefere with or assume control over the particular operation which occasioned the injuries to plaintiff complained of, then ■the Republic Steel Corporation would not be liable to the plaintiff and your verdict in that case would be for the defendant.”

We find also that in granting and refusing the requests to •charge before argument made by both plaintiff and defendant, the court was guided by the above principles set forth in his general charge.

In our opinion the issues in this case were fairly presented to the jury by the trial court and there is evidence to support the verdict.' This was a hotly contested case. Many objections to evidence were made in the course of the trial. In reading the record we are impressed with the fairness and the good sense and judgment of the trial court in passing upon these •objections as well as in his general charge to the jury.

There is one other assignment of error which should be mentioned.

“11. The. verdict of the jury is excessive and appears to have been rendered under the influence of passion and prejudice.”

The verdict in this case was not excessive in view of the fact that the plaintiff sustained serious injuries, and-the verdict of the jury is not greatly in excess of the wages lost by plaintiff between the date of the accident and the time of trial.

The majority of this court are of the opinion that the .judgment should be affirmed.

HURD, PJ, concurs. SKEEL, J, dissents. (See dissenting opinion)