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December 27, 1963

Stella McSPARRAN, Administratrix of the Estate of Ignatius Peter Kane, Deceased
John HANIGAN, Individually and trading as Hanigan Construction Company, andWalter Hinkle, Individually and trading as the Hinkle Excavation Company, andRobert R. Tyler, Individually and trading as Robert F. Tyler and Co., and JOHNMcSHAIN,INC., Defendant and Third-Party Plaintiff, v. WILLIAM H. WALTERS & SONS, INC.,Third-Party Defendant. Stella McSPARRAN, Administratrix of the Estate of Ignatius Peter Kane,Deceased, v. Edward Thomas SUBERS

The opinion of the court was delivered by: FREEDMAN

Numerous post-trial motions have been filed by all the defendants and by the plaintiff after a lengthy jury trial which resulted in verdicts against all the defendants.

On June 11, 1958, plaintiff's decedent, a plumber, was killed by the cave-in of a trench which was being excavated on the grounds of Misericordia Hospital in Philadelphia as part of the work of erecting an additional wing. He was employed by William H. Walters & Sons, Inc., the plumbing subcontractor of John McShain, Inc., the general contractor. Walters' foreman on the job was Subers.

 Walters had contracted with Walter Hinkle, trading as Hinkle Excavation Company, to dig the trench, in which a sewer line was to be laid. Hinkle arranged for John Hanigan, trading as Hanigan Construction Company, to do the job. Robert R. Tyler, trading as Robert F. Tyler and Co., was a dynamiter working on the site.

 Two actions were brought by decedent's administratrix. One was against Subers under the survival act; a wrongful death claim against Subers had been barred by the statute of limitations. The other action was against Hanigan, Hinkle, Tyler and McShain, for both wrongful death and survival claims. Both actions were consolidated for trial. A variety of third-party and cross-actions also were involved, but they are not involved in the problems presented by the present motions.

 Many questions have been raised in the briefs and arguments. I have considered all of them, but shall deal here only with those that are significant enough to require discussion.



 The first question raised by the post-trial motions is the liability of the several defendants as a matter of law. Of course, in such cases whatever evidence supports the verdict must be taken to be true and whatever evidence runs the other way must be disregarded.

 1. Hanigan.

 Hanigan admittedly dug the trench with his own equipment, over which he had complete control. He dug the trench at the precise place marked out for him by Subers, Walters' foreman. Hanigan was not in the business of shoring. *fn1" The essence of his defense is that he was hired merely to dig, he dug as he was told, and his limited work was done properly and without negligence. Hence he contends that the jury's finding that he was negligent is unsupportable as a matter of law.

 The contention that Hanigan was not subject to the duty of shoring imposed by the statute and regulations *fn2" because plaintiff's decedent was not his employee may be set aside at the outset on the authority of Quinones v. Township of Upper Moreland, 293 F.2d 237 (3d Cir. 1961). *fn3" In that case, the township was held bound by the shoring requirements because of the control it retained over the excavation, although it was not the employer of the injured workman. A fortiori, Hanigan, the excavator himself, had sufficient control over the excavation *fn4" to be held bound by the regulations.

 Nevertheless, the jury was specifically instructed that neither the statute nor the regulations require that one who digs trenches must also be in the business of shoring. No liability may be imposed on him if he reasonably expects that the excavation will be shored by another after his work is completed. *fn5" On the other hand, the jury was told that one who is simply engaged in digging ditches may not dig a ditch which he knows or should know the law requires must be shored, if he knows that it will be left unshored. In that event he would be negligent because of his knowing participation in the violation of the statute. *fn6" Indeed, the contention that Hanigan should be excused because he only did what Subers required him to do is doubly weak. For here his conduct offended not only against common law standards of due care for the safety of others, but also against a statute which prescribes criminal punishment for violation of the regulations promulgated under it. *fn7"

 The jury was also permitted to find negligence, aside from the violation of the statute and regulations, if it determined that Hanigan knew that it was dangerous to dig the trench at the location to which it was moved, in view of the nature of the soil, the weight of his equipment, and all of the other circumstances surrounding his work.

 The evidence supports a finding of negligence on either or both aspects of the charge. Hanigan knew of the shoring requirement. He knew as he dug the trench section by section that it was not being shored and that none of those to whom he was to deliver his completed work would shore it. He knew also that the trench had to be dug along the very edge of a shanty which McShain's foreman, Parker, had refused to move; and that the ditch, therefore, had to be dug so narrowly that it could not be 'V-ed' or braced and still be wide enough for the plumbers to work in it. Hanigan admitted that in digging the trench he destroyed the shanty's lateral support and that the ditch caved in at a point adjacent to the shanty. His equipment was heavy, weighing about 4 1/2 tons; yet in the course of the work he had it straddle the trench and rest on each bank, thus adding to the burden on the unshored trench. As the one who did the digging he must have been familiar with the loose and sandy nature of the soil, and he surely was aware that blasting operations were being conducted in the vicinity.

 It matters not that Subers marked out where Hanigan should dig. Hanigan was experienced in this line of work and he could not transfer his negligence to Subers. If Subers acted without due care in what he did this means only that Subers is jointly and severally liable with Hanigan and not that Hanigan is excused because of Subers' concurrent negligence.

 2. Hinkle.

 Plaintiff offered no proof that Hinkle did any work on the job. None of his equipment was brought on the premises. An effort was made to prove that he had participated in a discussion on the job with Parker and Subers on whether the trench should be shored. The evidence on this, however, was so uncertain that it was not pressed. *fn8" Liability therefore must rest on Hinkle's responsibility for the negligence of Hanigan. This was left for the jury to determine, and in the circumstances it was broken down into whether (a) there was a novation by which Hanigan took Hinkle's place in the contract with Walters; (b) Hinkle employed Hanigan as his employee; and if not, (c) whether they were joint venturers. The jury was instructed that if they found from the circumstances that there was a novation then Hinkle would not be liable even though Hanigan was negligent. If, on the other hand, they found that Hinkle was Hanigan's master, or a joint venturer with him, then any negligence of Hanigan would also be chargeable to Hinkle.

 (a) Novation.

 Novation was left to the jury in nontechnical language. *fn9" There was adequate evidence to support a finding against novation. The only contract document was Walters' purchase order to Hinkle. Hinkle regularly billed Walters for the work done. The contract payments under the purchase order, amounting to $ 1,494., were made by Walters to Hinkle, and not to Hanigan. Hinkle claimed that he paid over all but $ 59. of this amount to Hanigan. This retention of money by Hinkle, however small the amount, was an element in the determination of the intention of the parties. The fact that Walters periodically made payments to Hinkle after Hanigan is claimed to have taken his place is a fundamental contradiction of the claim of novation.

 (b) Master and servant.

 The jury was left to determine whether a master and servant relationship existed. The test given to them was whether Hinkle controlled or had a right of control over the manner and means by which Hanigan performed his work.

 There was evidence from which the jury could have found a master-servant relationship. Hanigan testified that Hinkle sent him to the job, told him what equipment to bring and from whom he should take orders. (Transcript, 771-73). Hanigan reported regularly to Hinkle the time he spent on the job so that Hinkle could bill Walters for the work done. Hinkle also indicated that he acted in such a fashion as to retain the right to go back on the job whenever he wished. (Transcript, 754). Finally, the fact of the payments to Hinkle, who then paid Hanigan, is consistent with a master-servant relationship between the two.

 (c) Joint Venture.

 The jury was told the legal essentials of a joint venture: that each party must make a contribution to it, either in the way of money or skill or services or property; that profits be shared among them; that they have a joint proprietary interest and right of mutual control over the subject matter of the enterprise; and that usually a joint venture arises in a single business transaction rather than a general continuous one, which is more commonly that of a partnership, but that it may be created otherwise and may be for more than a single enterprise. The jury was instructed that the existence of these elements depended entirely on the intention of the parties manifested by a contract either expressed in specific terms or implied from their conduct. See McRoberts v. Phelps, 391 Pa. 591, 599-600, 138 A.2d 439 (1958).

 There was evidence, however sparse, from which the jury could have resolved this question of intention against Hinkle. The enterprise was the work of individuals and their machines, and was furthered by their pooling of their resources in equipment and labor. When, as in this instance, Hinkle had work but his equipment was not available he arranged for Hanigan to do the job without any new contract or purchase order from Walters. Hanigan and Hinkle were in regular communication with each other regarding the work that Hanigan was doing and the bills to be sent to Walters. Hinkle received payments from Walters for Hanigan's work and made weekly payments from these funds to Hanigan. Some part of the payments, ...

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