Petty v. Cranston Print Works Company

90 S.E.2d 717 (1956)

243 N.C. 292

Horace B. PETTY v. CRANSTON PRINT WORKS COMPANY, a corporation.

No. 245.

Supreme Court of North Carolina.

January 13, 1956.

*721 G. T. Carswell and Robinson & Jones, Charlotte, for plaintiff, appellant.

Carpenter & Webb, Charlotte, for defendant, appellee.

BOBBITT, Justice.

The facts disclosed by the evidence impel the conclusion that judgment of involuntary nonsuit was proper.

To recover damages for actionable negligence, plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach. Ramsbottom v. Atlantic Coast Line R. R. Co., 138 N.C. 38, 41, 50 S.E. 448. Plaintiff's action is in tort. Even so, the duty owed by defendant to plaintiff arises from *722 and is determined by the relationship subsisting between them. Pinnix v. Toomey, 242 N.C. 358, 87 S.E.2d 893.

Plaintiff was not an employee of Cranston. He was an employee of Piping Company; and as such was awarded compensation by the North Carolina Industrial Commission because this accident arose out of and in the course of such employment. Piping Company's compensation carrier paid the award and to that extent is interested in recovery by plaintiff herein.

Whether J. E. Sirrine & Company, in arranging for the Piping Company to make the necessary repairs, was agent for Cranston, as contended by plaintiff, or acting for itself in discharge of a duty it owed Cranston, is immaterial. Piping Company was an independent contractor. In effect, plaintiff so alleged; and, by uncontradicted evidence, it is established. While the final result was subject to inspection both by J. E. Sirrine & Company and by Cranston, neither had any supervision of the Piping Company's work during its progress. Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137.

There is neither allegation nor evidence that Cranston was obligated by contract or otherwise to furnish a scaffold for use by Piping Company or its employees. Further, there is neither allegation nor evidence that Piping Company or its employees had used Cranston's scaffold or had worked for Cranston or in its plant on any prior occasion.

Plaintiff's allegation is that Gaffney, Cranston's mill engineer, and Hill, alleged to have had charge of Cranston's equipment, particularly the scaffold, "had authority to permit the use of said scaffold by plaintiff's employer."

Plaintiff alleged that it was necessary for Piping Company's employees "to have a scaffold or other elevated appliance to stand on in doing their work." For this purpose, they brought "A" ladders; and by means thereof they inspected the heaters. There is no evidence that Piping Company or its employees had prior knowledge that Cranston had a scaffold. They discovered it after arrival at Cranston's plant. Whether a sufficient platform could have been provided by extending planks between the "A" ladders does not appear. There is evidence that a scaffold was necessary to the performance of Piping Company's work. It is plain that a scaffold, especially a movable scaffold, was more convenient and better adapted to the work. It does not appear whether the casters could be removed so that the scaffold would rest on stationary footings rather than on wheels. It is common knowledge that this may be done with scaffolds of this general type. In any event, the use of the casters facilitated the removal of the scaffold from place to place, as Piping Company's work required; and at each caster there was a device for locking the wheel when this was deemed necessary.

The evidence is sufficient to establish that Gaffney and Hill permitted Piping Company's employees to use Cranston's scaffold when it was not otherwise in use by Cranston. Absent both allegation and evidence that Cranston was obligated to provide a scaffold for use by Piping Company and its employees, the conclusion reached is that Cranston did nothing more than permit Piping Company and its employees to use the Cranston scaffold if they saw fit to do so.

So far as the evidence discloses, this particular scaffold was standard equipment, which defendant had purchased and had used for two years. The evidence discloses no defect therein except such as related to the casters or screws by which the wheels were locked. There is no evidence that any locking device failed to function properly at any time until after Piping Company's employees had put the scaffold in use for their purposes. Was Cranston's relationship towards plaintiff such that the law imposed upon him the legal duty to exercise reasonable care to inspect the said locking devices on the scaffold during the period the scaffold was in use by Piping Company's employees so as to cast liability upon defendant in the event such an inspection would have disclosed defects therein?

*723 The annotation in 44 A.L.R. 932-1134, under the caption, "Liability of the contractee for injuries sustained by the contractor's servants in the course of the stipulated work," and decisions cited in the supplements, deal exhaustively with decisions in other jurisdictions, including the English cases, relating to a wide variety of factual situations. Cases are cited, including Coughtry v. Globe Woolen Co., 56 N.Y. 124, 15 Am.Rep. 387, in support of the proposition that "a contractee who agreed to provide a contractor with a particular instrumentality for the purposes of the stipulated work is ordinarily liable for any injury which a servant of the contractor may sustain, during the progress of the work, by reason of a defect which was known to the principal employer, or which he might have discovered by the exercise of reasonable care, at the time when the instrumentality was turned over to the contractor." 44 A.L.R. 1048 et seq. Plaintiff cites Coughtry v. Globe Woolen Co., supra, as an authority upon which he now relies. On the other hand, cases are cited in support of the proposition that "An action brought by a contractor's servant to recover for injuries caused by a defect in an instrumentality gratuitously furnished by the contractee for the purposes of the stipulated work is maintainable, or not maintainable, according as the contractee had or had not actual knowledge of the existence of the defect at the time when the transfer of the instrumentality occurred." 44 A.L.R. 1079 et seq. The latter statement is in accord with the text in 35 Am.Jur., Master and Servant, sec. 162, and in 57 C.J.S., Master and Servant, § 604.

In Paderick v. Goldsboro Lumber Co., 190 N.C. 308, 130 S.E. 29, the death of plaintiff's intestate, an employee of an independent contractor, was caused by a defective "skidder" or "loader," by means of which logs were placed on railroad cars. It was held that since defendant had agreed to furnish the loader for use by the independent contractor, the liability of defendant to plaintiff's intestate, in respect of defects in the loader, rested upon principles applicable to the relationship of master and servant. While there was no recovery in Moore v. Rawls, 196 N.C. 125, 144 S.E. 552, the basis of decision in the Paderick case was noted and the rule was restated.

In Cathey v. Southeastern Construction Co., 218 N.C. 525, 11 S.E.2d 571, heard on demurrer to the complaint, there was a general contract for the construction of a residence. The general contractor constructed a scaffold. After its use by the general contractor's employees, a roofing subcontractor and its employees used the scaffold. The scaffold fell, injuring an employee of the subcontractor; and it was alleged (1) that the materials out of which the scaffold was built were of insufficient strength and defective, and (2) that an employee of the general contractor negligently and without warning removed a support from the scaffold. It was further alleged that prior to the letting of the subcontract for the roof, there had been a long course of dealing between the general contractor and the subcontractor involving similar contracts and that "it was understood between said parties, pursuant to the course of dealing between them, that the necessary scaffolds to be used in the installation of the roof on said dwelling would be furnished" by the general contractor.

In holding that the demurrer should have been overruled, this Court referred to the Paderick case as authority, taking occasion to point out that the relationship between defendant and plaintiff was not that of master and servant; but that where the general contractor was obligated to provide the equipment necessary for plaintiff's use the law imposed upon him a like duty with plaintiff's employer in respect of providing equipment suitable and safe for the purposes for which it was to be used.

In the excerpt from Coughtry v. Globe Woolen Company, supra, and in the excerpt from 27 Am.Jur., Independent Contractors, sec. 30, quoted in the opinion in Cathey v. Southeastern Construction Co., supra, as in the Cathey case, liability is predicated on two bases: either (1) an express obligation to provide the equipment, or (2) an implied agreement to provide *724 such equipment as a valuable consideration and inducement to facilitate and minimize the cost of performance of the work. In both the Coughtry and Cathey cases, the defective equipment was a scaffold, allegedly built of insufficient or defective materials or workmanship, built by the defendant for use, in part at least, for the very purpose for which it was being used when plaintiff was injured.

The facts here are readily distinguishable from the cases cited. Here Cranston had a piece of equipment which Piping Company chose to use rather than provide its own equipment of similar type. Cranston interposed no objection. Cranston had neither constructed the equipment nor was it obligated to provide it. Under such circumstance, we hold that Cranston had no duty to inspect the equipment before and during the period it permitted the use thereof by Piping Company's employees. Cranston's duty, a breach of which would render it liable, was to disclose to Piping Company and its employees such defects in the equipment, if any, of which it had actual knowledge or notice, which might render the use thereof dangerous, which were not apparent to Piping Company and its employees.

Plaintiff directs our attention to Sections 388 and 392 of the Restatement of Torts where in broad terms it is stated that the law imposes upon one who supplies to another a chattel to be used for the supplier's business purposes the duty to exercise due care to discover its dangerous character or condition, if such exists. We do not understand the authors to mean that one who permits an independent contractor or its employees to use a tool, appliance or equipment, solely as a courtesy and accommodation, is liable for failure to exercise due care to make reasonable inspection thereof before and during the period such use is permitted, simply because the ultimate result of the work to be done by the independent contractor is for the supplier's benefit and for which he must pay the independent contractor. Indeed, in explanation of Section 392, the authors say: "One who employs another to erect a structure or to do other work and agrees for that purpose to supply the necessary tools and temporary structures, supplies them to the employees of such other for a business purpose. This is so irrespective of whether the structure or work when finished is to be used for business or residential and social purposes. On the other hand, if it is understood that the person who is to do the work is to supply his own instrumentalities, but the person for whom the work is to be done permits his own tools or appliances to be used as a favor to the person doing the work, the tools and appliances are supplied as a gratuity and not for use for the supplier's business purposes." The quoted explanation is not in conflict with the rule held applicable to this case.

Plaintiff cites Martin v. Food Machinery Corp., 100 Cal. App. 2d 244, 223 P.2d 293, a decision of the District Court of Appeal, Fourth District, of California; Hilleary v. Bromley, 146 Ohio St. 212, 64 N.E.2d 832, a decision of the Supreme Court of Ohio; and Kalash v. Los Angeles Ladder Co., 1 Cal. 2d 229, 34 P.2d 481, a decision of the Supreme Court of California. In these, and in Coughtry v. Globe Woolen Co., supra, we find expressions more favorable to plaintiff's view than in any other cases that have come to our attention. But when the facts of each case are considered, it is apparent that decision rested upon a ground not inconsistent with the view taken by this Court.

In Martin v. Food Machinery Corp., supra, the plaintiff was injured when a scaffold on which he was working broke, resulting from the use of defective materials. Defendant-owner was constructing a building. Its employees built the scaffold and used it in their construction work. Plaintiff was an employee of a subcontractor, who was doing the outside lathing and plastering on a cost-plus basis. The evidence disclosed that it was the custom for tradesmen and workmen, when following one another, to use the scaffold already constructed. Whether plaintiff was an invitee, under the facts presented, was held *725 for determination by the jury. It is noted that in the Martin case, as in the Coughtry and Cathey cases, a stationary scaffold, constructed by the defendant, was involved, not a movable piece of equipment such as the scaffold owned by Cranston.

In Hilleary v. Bromley, supra, [146 Ohio St. 212, 64 N.E.2d 833] the second paragraph of the "Syllabus by the Court", states the basis of decision as follows: "2. Where a person agrees to place siding on a house and enters into a subcontract with another whereby the latter is to apply the siding and the former to supply ladders to be used in such work, such supplying is a bailment for the mutual benefit of the parties and the bailor is bound to exercise ordinary care in making the ladders safe for their intended purpose or to disclose to the bailee such defects in the ladders as it was the bailor's duty, in the exercise of ordinary care, to discover."

In Kalash v. Los Angeles Ladder Co., supra, the action was against the manufacturer of a ladder which collapsed while plaintiff was at work thereon in his employer's business. The principles applicable to a manufacturer of equipment as set forth in the leading case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, Ann.Cas.1916C, 440, were applied.

Even where the relationship is that of master and servant, and the duty devolves upon the master to exercise due care to inspect at reasonable intervals, tools, appliances and equipment furnished by him to his servant for the performance of his work, Womble v. Merchants Grocery Co., 135 N.C. 474, 47 S.E. 493; West v. Brevard Tanning Co., 154 N.C. 44, 69 S.E. 687; Cotton v. North Carolina R. R. Co., 149 N. C. 227, 62 S.E. 1093, such duty does not apply to a simple tool, such as a hammer, axe, chisel, spade, etc., because "the employe by using the tool has had the opportunity to observe defects, and * * * his knowledge is equal or superior to that of the employer." Mercer v. Atlantic Coast Line R. R. Co., 154 N.C. 399, 70 S.E. 742, 744. The reason underlying the rule relating to simple tools applies equally when the servant discovers that, unknown to his master, an appliance or equipment has become defective in the course of his use thereof, unless he makes such defect known to his employer so that the defect may be repaired or a new appliance or new equipment furnished or so that the master may instruct the servant to desist from further use of the defective appliance or equipment.

The relationship between Cranston and plaintiff was not that of master and servant. But in no aspect of the case would Cranston's liability to plaintiff be greater than if such were their relationship.

If plaintiff's evidence is accepted, plaintiff, in the course of his use of the scaffold, actually discovered the alleged defective condition of one or more of the casters or screws used therewith. His actual knowledge of the repeated failure of the locking device on one or more of the wheels was based on his personal experience with and use of the scaffold. When a person has knowledge of a dangerous condition, a failure to warn him of what he already knows is without significance. Perry v. Herrin, 225 N.C. 601, 35 S.E.2d 883; Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789. Here plaintiff alleges that the very defective condition of which he was fully aware was the proximate cause of his injury.

It is apparent that plaintiff's knowledge of the alleged defective condition of the scaffold was superior to that of Cranston. Indeed, Cranston had no knowledge thereof. Evidence of notice to Philpott, the storeroom keeper, and to Hunsinger, the steam-fitter's helper, rather than to Gaffney or Hill, whom plaintiff alleges were in charge of Cranston's equipment, including the scaffold, was not notice to Cranston. Too, the fact that Piping Company, plaintiff's employer, knew of the alleged defective condition, was not chargeable to Cranston.

It is further noted that there is no evidence that the locking device failed or that the scaffold rolled at any time when the *726 equipment was used by persons other than Piping Company's employees, plaintiff and his co-workers.

In Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 38 S.E.2d 561, 565, the plaintiff's intestate was an independent contractor. Judgment of nonsuit was affirmed. What is said by Barnhill, J. (now C. J.), is appropriate here: "The owner is not responsible to an independent contractor for injuries from defects or dangers of which the contractor knew or should have known, `but if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this, he is liable for resultant injury.' (Citations omitted.)"

According to plaintiff's testimony, Piping Company's employees, including plaintiff, shortly before plaintiff's injury, removed the brace on the scaffold adjacent to the heater on which they were working. Defendant contends with much force that the removal of this brace, considered with the weight and position of the workmen and the steel plate, so weakened the scaffold and platform that it should be inferred that they became unsteady or shifted, causing plaintiff to lose his balance; and that any further movement of the scaffold was incident to the fall of plaintiff and of Cagle from the platform. Obviously, there was some movement of the scaffold or platform. Plaintiff and Ferguson testified that it rolled. However, it was physically impossible for them to see the casters or wheels from where they were standing on the scaffold, then holding and placing the steel plate against the heater.

Plaintiff's testimony is direct and positive that the bolts were tightened and the wheels locked before plaintiff and his fellow-employees went upon the scaffold on this occasion. After the accident, no inspection was made to determine whether the threads on any cap screw were worn or stripped or whether any wheel was then unlocked. On the contrary, Cagle testified that he continued to use the scaffold, without alteration, for two weeks after the accident, during which time he had no trouble with the locking device. However, since we have reached the conclusion that the judgment of involuntary nonsuit should be affirmed on the basis of the legal principles declared above, we need not decide whether the testimony of plaintiff and Ferguson, considered in relation to the physical facts and undisputed evidence, is sufficient to support the plaintiff's allegation and theory of the case, namely, that the locking device failed and the scaffold rolled.

The court excluded a telegram and certain letters. These tend to show that from September, 1951, until Piping Company's employees got on the job in late January of 1952, Sirrine & Company, prodded by Cranston, had been urging Piping Company to go ahead with the work. However, as plaintiff frankly admits in his brief, these letters were offered solely for the purpose of showing that Cranston wanted the work to proceed as rapidly as possible. Admitted evidence tends to establish this fact. For that matter, in the salubrious but chilly air of Fletcher, North Carolina, in mid-winter, Cranston's desire that the deficiencies in its heating system be remedied without delay is obvious. The exclusion of these exhibits does not affect decision as to nonsuit.

It appears that plaintiff received serious personal injuries while in the employment of Piping Company. He was entitled to compensation benefits. He has received the compensation to which he was entitled under the Workmen's Compensation Act. No doubt the amount thereof was inadequate compensation for his injuries. Even so, we find no evidence in this record sufficient to impose liability upon Cranston for the unfortunate accident. Hence, the judgment of involuntary nonsuit is affirmed.

Affirmed.