DocketNumber： No. 20676
Citation Numbers： 51 Ohio Law. Abs. 353, 81 N.E.2d 242, 1948 Ohio App. LEXIS 915
Judges： Hurd, Morgan, Skeel
Filed Date： 4/12/1948
Status： Precedential
Modified Date： 11/12/2024
DISSENTING OPINION
(dissenting).
The Defense Plant Corporation, some time prior to November 10, 1942, entered into a contract with The Republic
“All work in connection with excavation and backfill for underground pipe will be furnished by others * *
The plaintiff was a laborer employed by The Hunkin-Conkey Construction Company. On Feb 21, 1944, he was sent by his foreman, together with another laborer, with two plumbers, employees of Schweizer-Dipple Company, to dig a ditch in which the plumbers were to install a pipe line. About three o’clock of that day word was sent to these workmen to go to another part of the plant where an underground steam pipe had broken. The plumbers took the plaintiff and his fellow laborer to the location of the broken steam pipe for the purpose of having them do whatever excavating found to be necessary to enable the plumbers to repair the break. When they arrived at the place of the break, the plumbers directed the laborers to dig where steam was coming out of the ground and the ground was covered with water.
The uncontradicated evidence as to who the plaintiff’s employer was and who directed him to do the work which he. was doing at the time of the sustained injury is as follows: (A Mr. Tagliaferri was Superintendent and Anthony DeShance was plaintiff’s foreman) DeShance testified as follows (in part):
“Q. Did you have Tony Giovanale over here as one of your men?
A. Yes, I did. .
Q, What instructions did you have from your foreman as to placing these laborers on that particular job if any?
# # # « * #
Q. From your superintendent I mean?
*362 A. The superintendent gave the orders. * * *
Q. Your superintendent was Tagliaferri, wasn’t he?
A. Yes.
* # # # #
Q. Was Schweizer-Dipple one of the sub-contractors on that particular job?
A. Yes.
Q. And what instructions did you have relative to supplying them with any laborers?
* # * # *
A. The only instructions I had was thaft any time men was needed after the superintendent gave me orders I’d give out the men otherwise I wouldn’t give out any men unless the superintendent O. K’d it first.
# * * * *
Q. On Feb. 21, 1944 did you have any conversation with any Schweizer-Dipple men?
A. Well, I don’t know what you mean by that now, conversation.
Q. The plumbers, did they talk to you on that particular date?
A. Well, I don’t know what you mean by that question, talking. There’s always talking going around on the work.
Q. I am talking about the Schweizer-Dipple men, did they talk to you about furnishing them with any men or anything else?
A. Yes.
Q. What was said and done?
A. He come up to me and asked me for two laborers.
Q. What time of the day was it when he asked you for two laborers?
A. If I recall it right, I think it was the first thing in the morning — around 8:00 o’clock.
■* # * * *
Q. Who were these two men, do you know?
A. One is that man sitting there at the desk.
Q. Who is that, where, what desk?
A. Right here (indicating).
Q. You mean Giovanale here?
A. Yes.
Q. He isn’t a Schweizer-Dipple man, is he?
A. No, he was my man.
Q. Who were the Schweizer-Dipple men?
A. Well, I don’t see them in the room here. I only know them by the name of Joe.
Q. Who did they ask you? What did they say?
*363 A. He wanted two laborers.
Q. ‘And what happened then, what did you do?
A. I told him I’d have to find out first whether I was permitted to give him the two laborers.
Q. What did you do then?
A. After I found out it was O. K. I give it to them.
Q. What did the Schweizer-Dipple men do with the laborers?
A. After it was O. K. he took them away. Where he took them I don’t know.”
The superintendent, testifying for plaintiff as follows:
Q. “Mr. Tagliaferri, what part of the work did the Hun-kin-Conkey Co have out there?
A. We had the general contract, that is, we were the prime contractor, that .is what we were, and we had several sub-contractors like Dingle-Clark on the plumbing-and heating and the electrical work was done by another contractor and so forth.
Q. What work did the Schweizer-Dipple Co do out there?
A. The Schweizer-Dipple Co they done all the plumbing and the steam job and gas work.
Q. Were they doing that work in February of 1944?
A. Well, yes, they were still on the job.
Q. And what if anything, did they do in regard to any excavating or digging that had to be done out there?
Mr. Van Lili: I object.
The Court: The objection is overruled.
Q. Well — that—it was that we done all the excavating, all the digging was done by us. In other words the Schweizer-Dipple Co. didn’t have only mechanical, whereby we had practically all the rest of the trades, bricklayers, carpenters and iron workers, and so forth.
# * * # #
Q. In regard to doing the work out there by the Schweizer-Dipple Co did they do any of the excavating or digging in. order to lay any pipes or repair any pipes?
A. No, sir.
Q. Who did that?
A. We done that.
Q. In regard to Anthony DeShance in particular, what instructions had you given, him, if any, relative to supplying any labor for the Schweizer-Dipple Co?
A. Well that was a standing order.
Q. Well, what was it?
*364 A. That is, if any of the plumbing contractors required any men which as I stated before, we done all the digging, it was up to us to furnish the men to do the work.
■» * ■# * #
Q. You were the labor superintendent of all the men there employed by the Hunkin-Conkey Construction Company?
A. Correct.
Q. And the Hunkin-Conkey Construction Company had complete control and supervision of the men who were doing the work?
A. That’s right.
Q. Then, as I understand it, you had labor foremen, such as DeShance who worked under you as labor superintendent?
A. That’s right.
* # # * #
A. He was supposed to watch his own men.
Q. That’s right. And his men, his laborers, took orders from him, is that right?
A. They were supposed to, yes.
Q. That was the general scheme?
A. That’s right.
Q. He had no authority to conduct your business in any other way, did he?
A.- Not from me, no.”
* * * * *
The plaintiff’s fellow workman testified in part:
Q. “On the morning of Feb. 21, 1944, will you tell the court and the jury where you were working and where Tony Giovinale was working?
A. Well, that morning we come in to work 7:00 o’clock and soon we come'in Tony DeShance, our boss, foreman, told me and Tony'together to go to the plumber on the other plant where call it coke plant I think it was.
Q. Did you and Tony Giovanale go with the plumber?
A. Yes, sir.
Q. Who took you over there?
A. The plumber.
Q. How did they take you over there?
A. On a little truck, about half-ton truck.
Q. To what place did you go there in the morning?
A. I think they had some pipe line, if I don’t am mistake, 12 inch pipe line to cut.
Q. And so you went with the plumbers over there, is that right? ,
A. Yes.
*365 Q. When you got there what did you do?
A. Well, we digging that pipe line there: it’s-supposed to be cut and connected with some other line. ,
Q. Who told you to dig?
A. The plumber.
Q. How many plumbers were there at that time? ■
A. I think there was two, two or three, was two sure.
Q. Then you dug at that place how long?
A. • We stay there I think around three o’clock.
Q.. And at 3:00 o’clock what happened?
A. What happened, I suppose—
Q. Talk a little slower, because she has got to write down what you say. You say about 3 o’clock?
A. Yes.
Q. You went to. another place?
A. Yes.
Q. Who took you over to this other place?
A. The plumber.
Q. How did they take you there?
A. On a little truck again.
Q.- Where did they take you do you know?
A. We take it right there and we had leak, big leak there, they claim was. busted pipe.
Q. When you got over there to this place where there was a leak in the pipe, you say, who was there?
A. Plumber.
Q. How many plumbers?
' A. I think it was two.
Q. Two plumbers. Who else was there?
A. I didn’t remember anybody else but plumber.
Q. Well, were you there?
A. Yes, I was there.
Q. Was Tony Giovinale there?
A. Yes.
Q. And this place where they took you about 3 o’clock, whereabouts was that?
A. Well, they call that new blast furnace.
Mr. Or gill: If the court please, we can’t hear the witness. I think if counsel would stand back, we might get what he is saying.
Q. Where was this place they took you at 3 o’clock?
A. This was old place, new plant was building, blast furnace, where we been working.
Q. When,you got there with the plumbers what did the plumbers do and what did. you do and what did Tony Giovinale do?
*366 A. The plumber didn’t done anything, just sit around, told me and Tony we should digging and find that leak.
Q. Did the plumbers tell you where to dig?
A. Yes.
Q. Where did they tell you to dig?
A. They tell me and Tony we should dig and find the leak; was hot water come out and steam. We can’t even see each other. I dig on one side and Tony dig on,other side, only about four feet space, something like that.
Q. What was on the ground at that time?
A. What’s that?
Q. What was on the ground where you were digging?
A. See the steam and water come out from under the ground.
Q. Was there any water on the ground?
A. Plenty water, just fishing dirt and water.
Q. When you started there, where was Tony working with reference to where you were working?
A. Working with me, just shoulder by shoulder.
Q. Shoulder by shoulder?
A. That’s right.
Q. What happened as you started to work?
A. We start to dig in and the water just come out so fast we can’t even see each other; the water just boiling.
Mr. VanLill: May I sit here? I don’t undestand him.
Mr. Orgill: And may the witness be instructed to speak louder?
The Court: He speaks loud enough but he slurs some words. The stenographer cannot get him if he doesn’t talk clearly. I can’t understand some of the words.
Q. Tony, when you got over to this place tell the court and jury what happened over there.
A. Well, just what happened, both the plumbers tell us we should go dig and we start to digging. That’s really, the water come up too fast up and steam and I told Tony, T don’t know what we going to, do in this, digging or not.’ The plumber say we got to try to, dig. I say ‘why don’t they shut off the water line or steam line?’ They said they can’t shut off because something is wrong with the valve. I said, ‘It’s hard to digging here. It’s so hot we can’t even see each other.’ Anyway we fish around and digging that water and dirt and steam come up all the time. Tony was just near that concrete pole and I was near. The water come up I think a tunnel. All at once I hear Tony hollering; he had one foot — the water, just come up so fast and there’s a little tunnel under there. I don’t know, he don’t know and he fall with one foot in. He*367 holler. We work shoulder by shoulder. I turned around and pulled him out and he fall on the ground and take his shoe off and stocking'off and we take him to the hospital.
# * * * *
Q. When you first got to the point at which you were digging, there was already steam and water coming through wasn’t there?
A. That’s right.
Q. At the point at which you dug afterwards?
A. Yes.
Q. And then when you dug, more steam came up?
A. More steam come up.
Q. You spoke about cutting off the steam and the water, because you knew it would be dangerous to continue didn’t you?
A. That’s right.
Q. Did Tony say the same thing or not?
A. Same thing.
Q. He knew it would be dangerous?
Mr. Mancino: I object.
A. Tony don’t say very much? He don’t understand much English, or hear very much. I told Tony, T don’t know what we can do.’ He asked me what to do. I said, ‘we were told to dig.’' We can’t dig very much. I said T told them to shut off the steam and they said they can’t shut off because something is wrong with the valve.’ We don’t go so far about 12 inches, 18 inches and then the tunnel was just near the concrete pier there. I suppose that steam just go under the ground tunnel and Tony just fishing that dirt and hot water, come up and he fall just one foot just near the concrete.
Q. Go ahead, finish.
A. We working shoulder by shoulder. .When I hear Tony-hollering I turned around and grab Tony. One foot in the hole about 12 inch 18 inches deep.
The Court: Just a minute'.
Mr. Van Lili: I didn’t like to stop him.
The Court: What was the question.
(Question read)
Q. Did you? You knew it would be dangerous to work there with that steam and water?
A. Certainly.
Q. That is what you and Tony were talking about isn’t it?
A. Yes, that’s right.
Q. Did Tony tell you it would be dangerous or did you tell, him?
A. Yes.
*368 Q. Which?
A. I tell him mostly because he don’t understand exactly what we should do.
Q. You told him, anyhow?
A. I told him, yes.
Q. In Italian.
A. Yes.”
The plaintiff testified in brief that he was sent by his foreman with the plumbers, that the plumbers took him to the place where he was to work, in a truck and then showed him where to dig; that some time thereafter he was taken by the plumbers to the place where he was injured and when he got there they again told him where to dig.
“Q. When you got there at the place where they told you to dig was there anything on top of the ground or anything?
A. There was an inch or two of water some place and some place not.
Q. Did you start digging there?
A. I dig about a foot or -foot and a half.
Q. And what happened then?
A. I went to push the shovel down in the hole and my foot went down and the steam started coming up.”
Upon the conclusion of all plaintiff’s evidence, upon motion the court entered judgment for both defendants and against the plaintiff. The plaintiff’s assignments of error are as follows:
1. That the judgment of the court in directing a verdict for the defendants and entering judgment for the defendants was contrary to law and the evidence.
2. The court erred' in directing a verdict for the defendants at the close of the plaintiff’s testimony. *
3. The court erred in not submitting the issues herein to the jury for their determination.
This court is unanimous in its conclusion that the court was correct in entering judgment for the defendant, The Republic Steel Corporation for the reason that there was no evidence which tended to establish any breach of duty owed to the plaintiff by such defendant which in any way was a proximate cause of plaintiff’s injuries.
We come, therefore, to the question as to whether or not there were any issues of fact; taking the plaintiff’s evidence
It is contended by plaintiff that this defendant owed the plaintiff the duty to furnish him a reasonably safe place ,in which to work.
There are two answers to this contention. (I) This defendant was a sub-contractor of plaintiff’s employer who was, in fact, the general contractor of the agent of the owner of the premises. There is not a word in this record which shows or tends to show that the defendant, Sehweizer-Dipple Company, had any right of control over the physical conditions surrounding the place where the repair to'the steam line had to be made. (2) The break of the steam line was, of necessity, an emergency and the dangers surrounding its repair were as evident to. the plaintiff and his employer as they were to the defendant, The Sehweizer-Dipple Company, or its employees and such dangers were not such as could have been provided against.
The only basis for any liability of the ' defendant, The Sehweizer-Dipple Company, to the plaintiff under the admitted circumstances of this case, must be founded upon the theory of respondeat superior. But the facts negative any such relationship. The work the plaintiff was doing was that of his employer, The Hunkin-Conkey Construction Co. The only possible part that The Sehweizer-Dipple Company had to do with regard to the pilaintiff and his work was to show him where to dig. This was because such work was a necessary prerequisite of the work to be done by the subcontractor as provided by the contract. There can be no legal responsibility against a sub-contractor where the only ground relied on is that the employees of such sub-contractor directed the workman of a general contractor where the work of such general contractor was to be done to make possible the doing of the sub-contractor’s work. Such acts do not establish any assumption of control of such general contractor’s employees. If the general contractor failed in providing adequate supervision for the safety of its employees such failure cannot be charged to a subcontractor who is acting under the direction and control, and under the terms and scope of its contract with the general contractor. Under the admitted facts of this case The Sehweizer-Dipple Company had no right or duty to supervise or direct the manner or means by which employees of the general contractor, The Hunkin-Conkey Construction Company carried on their work and any attempt on the part of an employee of The Sehweizer-Dipple Company to do so would be outside the scope of his employment and could not impose a liability upon his employer.
“* * * Where the master lends or leáses his servant to X and during the course of his work for X he injures the plaintiff, the master’s liability depends on the nature of the arrangement between him and X as to who had control of the servant while he is performing X’s work; if he is to obey X’s directions as to the manner of performing the work, then the liability is on X; but if X’s power to direct the servant is confined to showing him the work to be done, then the master is responsible.”
In the case of Snyder Admrx. of the estate of H. S. Snyder, dec’d v The, American Cigar Company, 22 O. C. C. Rep. (N. S.) 45, the plaintiff was seeking recovery for wrongful death. The decedent was a carpenter employed by a carpenter-contractor who had contracted with defendant to do certain work about its building. The plaintiff admitted that deceased was employed by Bloor (the carpenter contractor) but charges that at the time he started to work on the job, Bloor was only present a few hours, leaving the deceased thereafter in charge and with the defendant cigar company, supervising and controlling the conduct of the deceased and the mode and manner of doing the work, and that plaintiff’s decedent followed the suggestions, directions and control thus made and exercised by the defendant.”
On page 47 of the opinion the court said.
“It thus appears to have been the purpose of the pleader in drafting the plaintiff’s petition and reply to set up the existence of the relation of master and servant between plaintiff’s intestate and the defendant, and to count upon the rights and duties growing out of that relation; and it is indeed possible, under the decisions in this state, for one who is in the general employ of one person to become by a sort of adoption the employee also of another; the right of control being one at least of the tests applied to establish the existence of the relation of master and servant under these special circumstances. McCafferty v Dock Company, 11 C. C. 457.”
“Where the plaintiff seeks to recover upon the theory that the relationship of master and servant existed, but fails ts introduce any evidence which, would make the defendant liable as an employer, it is of no moment that the defendant in his answer has made no reference to the relationship of master and servant.”
In the case of Steinman v Penna. R. R. Co. et al, 54 Fed. (2d) 1052 the plaintiff was employed to build concrete piers for a railroad bridge, the contractor to furnish all labor, material and equipment. The railroad employed inspectors to see that the work was carried out as provided by the contract. During the progress of the work a railroad company inspector told an employee of the contractor to provide a scaffold'at a certain place. The employee-of the contractor said there was not sufficient lumber of the proper kind out of which to construct such a scaffold. He did, however, follow the inspector’s instructions to build the scaffold with what lumber there was available. Another employee was injured when the scaffold broke. Paragraphs 3, 4, and 5 of the head-notes provide:
“3. That independent contractor’s servant was sent by' contractee’s inspector to do certain work, did not make him contractee’s servant pro hac vice.
4. Whether there is such assumption and change of masters as to create corresponding change of liability depends on whose work is being performed, usually answered by ascertaining who controls servants.'
In this connection there must be a careful distinguishing between authoritative direction and control and mere suggestion as to details or necessary co-operation where work furnished is part of a larger undertaking.
5. Power of control remains in original master so long as he retains right to direct manner of work and result.”
One other question must be given consideration and that is that even if it be considered that the circumstances were such that the plaintiff was, for the purposes of making the repair in the steam pipe, acting under the direction and control of the defendant, The Schweizer-Dipple Company as an employee, there could be no common law liability against the defendant employer, The Schweizer-Dipple Company because of §1465-70 GC of the Workmen’s Compensation Act.
When plaintiff and his fellow-worker arrived at the scene the the break in the steam line which he was sent to assist in repairing, the ground was covered with water and a great deal of steam was coming out of the ground. The evidence clearly shows that the plaintiff discussed this situation as he found it with his fellow-worker and his fellow-worker testified that he knew there were certain dangers connected with digging the dirt away from the broken steam line.
It is unquestioned therefore that the circumstances as thus disclosed being uncontradicted, left no question to be determined by the jury, requiring only the application of rules of law to determine the question whether or not plaintiff was guilty of contributory negligence assuming of course that there was (1) a duty established upon defendant The Schweizer-Dipple Company, to protect the plaintiff and (2) that there was a violation of such duty. The court, therefore, was correct in its conclusion that plaintiff’s own evidence established his negligence which in all events would preclude recovery.
For the foregoing reasons the judgment should be affirmed.