January 3, 1956
Appeals, Nos. 179 and 180, March T., 1955, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1951, No. 2946, in case of Elizabeth Townsend v. City of Pittsburgh et al. Judgment affirmed.
Louis Dadowski, with him J. Frank McKenna, Jr., for appellant.
Wallace E. Edgecombe, for appellee.
A. H. Rosenberg, with him Rosenberg & Rosenberg, for appellee.
Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.
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OPINION BY MR. JUSTICE ARNOLD
In this action of trespass for personal injuries suffered by plaintiff in a fall on a city street, the jury returned a verdict for plaintiff against the city and for the city against the additional defendant, John A. Johnson & Sons, Inc. (herein called "Johnsons"). The court below refused the city's motions for judgment n.o.v. and new trial, but entered judgment n.o.v. for Johnsons.*fn1 The city appeals.
By contract with the United States Government, Johnsons, as general contractor, proceeded in 1950 to construct the Veterans Hospital in the city of Pittsburgh. The contract provided, inter alia: "c. Transportation Facilities. The Contractor shall make an investigation of available roads and streets, ... and ... conditions affecting the transportation of materials ... to the site ... [It] will be required to limit the loads
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hauled over Brackenridge Street and other streets in the immediate vicinity of the project to the degree necessary to maintain the surface of these streets, and to maintain and restore the streets in a manner satisfactory to the City... [and] will secure ... all necessary permits for the use of City streets ..." (Italics supplied).
Johnsons then contracted with Turpin & Stewart, for a consideration of $488,000, to excavate, fill and back fill for the building, and to remove rubbish from the site. This contract provided that Turpin & Stewart would perform their work "under the direction of [Johnsons] ... and to the satisfaction of the architect, the owner of the premises, and [Johnsons]." (Italics supplied).
From October, 1950, and continuing through and beyond April, 1951, trucks under the supervision of Turpin & Stewart hauled dirt and rubbish over a number of streets including Enfield Street. At the point of its intersection with Morewood Avenue, as at other places on the streets, the heavy hauling created holes and ruts. Turpin & Stewart placed over the holes at this point a plank which was used by pedestrians to go from Enfield Street to Morewood Avenue. On August 10, 1951, some 3 months after the hauling ceased, as the plaintiff walked over the plank, it tilted and caused her to fall, as a result of which she suffered serious injuries. The proof established that the plank was insecure and unfirm because of the uneven surface of the street.
It was established that Johnsons did none of the hauling, nor did they control or direct the manner of doing the work.
The city contends, (1) that by virtue of the quoted provisions of Johnsons' contract with the United States it became a donee beneficiary entitling it to indemnity
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by Johnsons; (2) that Turpin & Stewart were agents or servants of Johnsons, who thus became liable for the negligent acts of Turpin & Stewart, - this on the strength of the provision that Turpin & Stewart were required to perform their work under "the direction ... and to the satisfaction of" Johnsons; and (3) that the verdict was excessive.
To support its claim as a donee beneficiary the city relies upon Restatement, Contracts, Section 133, which provides: "(1) Where performance of a promise in a contract will benefit a person other than the promisee, that person is ... (a) a donee beneficiary if it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed or asserted to be due from the promisee to the beneficiary."
But the question is not only whether the city is a donee beneficiary under the provision quoted, but also, if it is such, of what could it be declared donee beneficiary. It does not "appear from the terms of the promise" that Johnsons were to be indemnitors of the city against or for any recovery by third parties for injuries resulting from improper maintenance of the streets. The provision dealt with "transportation facilities" and required only that Johnsons "restore the streets in a manner satisfactory to the City." We cannot conceive from these words a contract of indemnity for damages payable for personal injuries resulting from negligent conduct. In addition, Restatement, Contracts, § 145, provides: A promisor bound to the United States ... by contract to do an act or render a service to some or all of the members of the public, is subject to no duty under the contract to such members
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to give compensation for the injurious consequences of performing ... it, unless, (a) an intention is manifested in the contract ... [that such compensation be made], ..." (Italics supplied). Nowhere in the contract are there any words evincing an intention to make Johnsons liable under the circumstances of this case. At most, - and this we do not decide, - it might be argued that the provision makes the city a donee beneficiary of the promise physically to repair or restore the streets to their former condition.
Nor can we subscribe to the claim that Turpin & Stewart were employes or servants of Johnsons. The provision that the work to be performed by the subcontractor shall be "under the direction of" and "to the satisfaction of" the contractor is common in such contracts and is necessary to orderly and proper completion of the work required by the general contract. Without more, it does not make the subcontractor an employe, but on the contrary, an independent contractor. Here, the performance and the manner of doing so were in the subcontractor only; and Johnsons gave no directions in that regard. As stated in Pennsylvania Railroad Company v. Allegheny County, 324 Pa. 216, 219, 188 A. 178, these provisions are "'for the purpose of guaranteeing ultimate performance in accordance with the agreement, not to fix control over the means and manner of execution.' ... 'There necessarily must be a certain control by the contractee of all undertakings otherwise he could not safeguard himself as to the satisfactory accomplishment of the work.'" Nothing in the contract provided that Johnsons were to control the employes of Turpin & Stewart, or the manner of performance, nor did they do so; and they cannot be held liable: DiGregorio, Admr. v. Berg, 359 Pa. 376, 59 A.2d 80. Not being master or employer, Johnsons cannot be held liable for the negligence of
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Turpin & Stewart: Sarne v. Baltimore & Ohio Railroad Company, 370 Pa. 82, 87 A.2d 264; Silveus v. Grossman, 307 Pa. 272, 161 A. 362.
The verdict was not excessive. There was proof that plaintiff, approximately 37 years of age, suffered permanent disability of 50%, and that she is still unable to work, whereas she had been gainfully employed with average weekly earnings of $35.68. Liquidated damages were $5,026.00. Estimated future medical expense was $1,000.00. These exclude pain and suffering and loss of future earnings. We cannot say that a verdict of $15,000 under the circumstances of this case "is so grossly excessive as to shock our sense of justice and to indicate a clear abuse of discretion on the part of the court below": Hutchison v. Pennsylvania Railroad Company, 378 Pa. 24, 31, 105 A.2d 356.