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October 19, 1962

Howard JAMISON, Administrator of the Estate of Albert Tucker, Deceased, Plaintiff,
A. M. BYERS COMPANY, a corporation. Defendant

The opinion of the court was delivered by: WILLSON

In this diversity death action tried to a jury the verdict favored the plaintiff as the Administrator of the Estate of Albert Tucker. Pennsylvania law applies as the accident and other operative facts occurred in the City of Pittsburgh in this judicial district. Suit was brought under both the Pennsylvania Wrongful Death Act, 12 P.S.Pa. § 1601 et seq. and Survival Act, 20 P.S.Pa. § 320.601 et seq. Under the Wrongful Death Act the jury awarded $ 104,805.00. Under the Survival Act the award was $ 45,000.00, making a total verdict of $ 149,805.00. During the course of the trial defendant filed timely Motions for Directed Verdicts and has filed post-trial Motions for a New Trial as well as for Judgment N.O.V.

Albert Tucker was born December 5, 1935, and was killed on February 3, 1959 at the defendant's plant while engaged in the process of installing shoring in a ditch which was being dug pursuant to a contract between defendant. A. M. Byers Co., and Allegheny Contracting Industries, Inc. The work was actually being done by Allegheny. The work had been commenced the day before the accidence, that is February 2, 1959. The trench was being dug at the north end of defendant's warehouse. The day before the accident equipment had been brought to the scene but very little work had been done other than to break up the surface of the ground. At 8:00 A.M. on the 3rd of February a backhoe started to dig the trench. The trench was to be 20 feet deep and 5 feet wide. Approximately 15 feet of the trench had been dug before the shoring was started. Decedent was a carpenter's helper. He was working with one Kenneth May who was the carpenter in charge. Both men were building the forms for the shoring on the outside of the ditch, each form being more or less 10 feet long and 5 feet high. Each form was then put into the trench by hand, lowering them by use of ropes. One form was then placed on top of the other and then the planks were placed in the side and the forms were braced with four by fours placed perpendicularly across the ditch. At approximately 2:30 P.M., while the work was going on, a cave-in occurred after some 25 feet of the ditch had already been shored by both employees. About 8 to 10 feet remained unshored when suddenly, without warning, the shored portion of the trench caved in Trapping decedent and Mr. May in the trench where they suffocated.

 The case was tried under the theory advanced by plaintiff's counsel that the applicable law was that found in Section 414 of the Restatement of Torts. That section reads:

 ' § 414. Negligence in Exercising Control Retained by Employer.

 'One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for bodily harm to others, for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.'

 Defendant's counsel, on the other hand, says that the applicable principle of law which should have been applied to the facts is Section 409 of the Restatement of Torts which reads:

 ' § 409. General Principle.

 'Except as stated in §§ 410 and 429, the employer of an independent contractor is not subject to a liability for bodily harm caused to another by a tortious act or omission of the contractor or his servants.'

 During the course of the trial I had before me Judge Engan's decision in Quinones v. Township of Upper Moreland, etc. Pa., 187 F.Supp. 260 (E.D.Pa., 1960), affirmed in part in the opinion of Judge Kalodner, Quinones v. Township of Upper Moreland, 293 F.2d 237 (C.C.A. 3, 1961); and also Spinozzi v. E. J. Lavino & Company, 243 F.2d 80, (C.C.A. 3, 1957). Defendant's counsel strenuously contends that the written contract between Byers and Allegheny relieves Byers of responsibility because Allegheny is a qualified independent contractor and worked under plans prepared by an engineer. The contract between the parties was the first exhibit offered into evidence. Plaintiff contends, and the court agrees, that the wording of the contract left a factual issue as to whether such control had been retained by the owner, that is Byers, so as to permit recovery on the theory that Byers, having retained the right to control and having failed to exercise it, it became responsible for Tucker's death if the jury found negligence. The Quinones case was used as the basis for my charge to the jury. Factually speaking, the instant case is four square with the facts developed by Judge Kalodner in the Quinones decision. The only exception might be that in Quinones I am not certain that the decedent was himself engaged in the act of shoring. He was an employee of the contractor, but his exact duties in the trench when he was killed were not shown in the opinion. In the instant case, however, the decedent Tucker was in the trench assisting Mays in the shoring operation. At this point it is to be observed that the issue of contributory negligence was left to the jury and the jury instructed that if the decedent Tucker was found to be guilty of contributory negligence, then there could be no recovery. The evidence showed that Tucker was but 23 years of age at the time of his death. He had had but little experience in the type of work in which he was engaged. His classification was that of a semi-skilled laborer. Under the evidence and the law as indicated in Section 414 and the cases cited, this Court felt at the trial that the issue of control was for the jury, and having heard the post-trial motions and studied the briefs and reviewed the decisions cited, I am still satisfied that the issue was one solely to be decided by the jury. However, I am satisfied that if the case had been tried non-jury, the wording of the contract, together with the other evidence, would have compelled a decision in the plaintiff's favor.

 At the oral argument and in briefs, defendant contends that the principle set forth in Section 414 is the exception to that in Section 409 and that the exception cannot be applied in favor of the employees of the independent contractor. Defendant contends that the phrase 'to others' spoken of in Section 414 refers to third persons such as passers by and other members of the public and is not intended to protect one such as decedent who is engaged in the very act which resulted in the harm.

  Defendant cites several Pennsylvania decisions. The first of these is Pender v. Raggs, et al., 178 Pa. 337, 35 A. 1135 (1896). Defendant says that the Circuit Court in the Spinozzi case misinterpreted the law of Pennsylvania by citing this as authority. But in that case the Court held that the question of interference or control was a question for the jury. An employee of a sub-contractor working under an independent contract was injured and recovered. In Stork v. Philadelphia, 199 Pa. 462, 49 A. 236 (1901), the City retained the right in its contract to determine when shoring and underpinning was necessary during the construction of a subway. The City refused to authorize shoring in that case and a homeowner suffered damage to his house. Again it was a question for the jury. And, in McGrath v. Pennsylvania Sugar Co., 282 Pa. 265, 127 A. 780 (1925), an employee of an independent contractor was injured when the defendant, through an assistant foreman, issued instructions as to how the employee was to perform certain work. Again the question was one for the jury as to whether control was exercised. In none of these three cases was there any discussion by the Court with regard to recovery by a third person as distinguished from an employee of an independent contractor. It is to be noticed that in two of the three cases, plaintiffs were employees and were permitted to recover. The three cited cases were decided before the adoption of the Restatement in 1934. Thus the Pennsylvania law, even before the adoption of the Restatement, was in accord with the Restatement and the case relied on by the Court in charging the jury. Defendant's counsel has simply failed to uncover any Pennsylvania decision that would indicate that the law of Pennsylvania is different than the law set forth in the Quinones or Spinozzi decisions.

 On the issue as to whether defendant retained control of the work, defendant contends that not only does the contract show that no control was retained but defendant goes further and asserts that there was no jury issue on this point because the Court should construe the contract as a matter of law in Byers' favor. It should be emphasized that the Restatement, Section 414, says one who 'retains the control of any part of the work is subject to liability * * * which is caused by his failure to exercise his control with reasonable care.' The phrases in the contract which the Court believes are for the jury in making the determination on the issue of control are, in part:

 '1.05 ENGINEER'S STATUS. The Engineer shall have authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract. He shall also have authority to reject all work and materials which do not conform to the contract.' '1.06. INSPECTION OF WORK. The Engineer and his representative shall at all times have access to the work wherever it is in preparation or progress and the Contractor shall provide proper facilities for such access and for inspection.' '2.04 ENGINEER. Wherever the term 'Engineer' is used in these Specifications or Contract Documents, such terms shall be understood to mean the A. M. Byers Company (Owner), or its duly authorized representatives.' '3.02 TRENCH EXCAVATION. Banks of trenches shall be vertical * * * The Contractor shall do all bracing, sheathing, and shoring necessary to perform and protect all excavations, as required for safety, as directed by the Engineer, or to conform to governing laws.'

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