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HARGROVE v. FROMMEYER & COMPANY (ET AL. (06/21/74)

decided: June 21, 1974.

HARGROVE
v.
FROMMEYER & COMPANY (ET AL., APPELLANT). LEE V. FROMMEYER & COMPANY (ET AL., APPELLANT)



Appeals from judgments of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1962, Nos. 524 and 3189, in cases of Floyd Hargrove v. Frommeyer & Company, United States Plywood Corp. and Robert E. Lamb, Inc., and Edward Lee v. Frommeyer & Company, United States Plywood Corp. and Robert E. Lamb, Inc.

COUNSEL

Jan E. DuBois, with him Richard M. Jordan, and White and Williams, for appellant.

Andrew F. Napoli, for appellee at No. 1351; Barbara Ann Duffy, for appellee at No. 1352.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J.

Author: Van Der Voort

[ 229 Pa. Super. Page 301]

On March 10, 1961, Plaintiffs-Appellees Hargrove and Lee were employed at the site of a warehouse under construction in the City of Philadelphia. On the above date, the Appellees were engaged in the pouring of a concrete floor in the unfinished warehouse when one of the recently constructed walls of the building suddenly came tumbling down on top of them. They were severely injured and thereafter separately brought suits to recover damages from United States Plywood Corporation (hereinafter referred to as Plywood), the party for whom the warehouse was being constructed, and Frommeyer and Company (hereinafter referred to as Frommeyer), the masonry subcontractor on the job. The general contractor on the job, Robert E. Lamb, Inc. (hereinafter referred to as Lamb), the employer of the Appellees, was joined as an additional Defendant in both cases. The two separate actions were consolidated for trial purposes. A jury trial was held, lasting several days, and the jury awarded substantial verdicts for each Appellee against both original Defendants and the Additional Defendant.

The Appellant, Plywood, alleging numerous errors, filed Motions for a New Trial and Judgment non obstante veredicto. After consideration of Appellant's arguments, the Court below, sitting en banc, denied the Motions and Judgments were entered upon the verdicts. The instant appeal followed, in which the Appellant

[ 229 Pa. Super. Page 302]

    raises nine points of alleged error in the conduct of the trial, for which it again seeks judgment notwithstanding the verdict, or in the alternative, the award of a new trial. In the consideration of such an appeal, this Court is of course required to consider the evidence in the light most favorable to the Appellees. Karam v. Pennsylvania Power and Light Co., 205 Pa. Superior Ct. 318, 208 A.2d 876 (1965).

The Appellant first argues that it was error for the trial judge to submit to the jury the issue of whether Appellant designed the warehouse wall and thereby incurred liability for defects in design, and secondly, claims error in the judge's instruction to the jury on the issue of design of the warehouse. The record shows that Plywood had a Maryland construction company initially prepare a plan for a building; thereafter, Plywood filed plans with appropriate governmental agencies to secure permits or licenses for the construction. When filed with these agencies, the name of the Maryland firm had been stricken from almost every plan and drawing and Plywood's name and the designation of its "Design Department" and its address had been substituted. In addition, part of the contract between Plywood and Lamb included a form normally used by architects; at each place on this form (except two) where the word "architect" appeared, it was stricken and the word "owner", in reference to Plywood was inserted. There was also evidence that one of Plywood's engineers visited the job site on occasion before the accident, to review the progress of the construction and to comment on needed revisions. Finally, it is noted that Plywood, in answer to interrogatories made a part of the record, specifically denied it had an independent architect who prepared plans or specifications for the job.

The Plaintiffs offered expert testimony that one of the contributing causes of the collapse of the wall was that the block used in the construction of the wall was

[ 229 Pa. Super. Page 303]

    too narrow to adequately support the wall to the height planned.*fn1 It was not rebutted that the plans filed by Plywood called for the dimension of block actually used. The Appellant's evidence in regard to the design of the building was well summarized by the lower court in its opinion: ". . . Plywood produced an employee who averred that he did not prepare the plans. In other words, despite the fact that Plywood was unquestionably in a superior position to come forward with affirmative evidence on this issue, it contented itself with simply asserting who the designer was not."

Under the circumstances, as related above, it is clear that the trial court quite properly submitted for the jury's consideration the issue of Appellant's responsibility for design of the wall as part of the ultimate question of liability. Further, Appellant seeks review of the trial court's charge to the jury on this point. Since Appellant failed to specifically except to this part of the charge, we would have to find basic and fundamental error in order to grant a new trial. Dinio v. Goshorn, 437 Pa. 224, 270 A.2d 203 (1969); James v. Ferguson, 401 Pa. 92, 162 A.2d 690 (1960). Our review finds no such error and this contention of Appellant must be denied.

Next, Appellant claims the trial court erred in refusing to rule, as a matter of law, that the negligence of Lamb and Frommeyer constituted superseding causes to relieve Plywood of any liability. A superseding cause may basically be described as an intervening act (or

[ 229 Pa. Super. Page 304]

    acts) of negligence which operates (or operate) to insulate an antecedent tortfeasor from liability for negligently creating a dangerous condition which results in injury. Roadman v. Bellone, 379 Pa. 483, 492, 108 A.2d 754 (1954). In Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970), our Supreme Court discussed the concept of superseding cause and stated that: ". . . a subsequent negligent act . . . will not relieve the original actor of liability if . . . it is 'a normal consequence of a situation created by the actor's conduct, and the manner in which it is done is not extraordinarily negligent' [citing the Restatement of Torts, Second, § 447]. While the Pennsylvania cases have sometimes conditioned an intervening actor's sole liability on his awareness of the danger to be avoided at a time when avoidance was still possible, this is but another way of saying that negligence in the face of a known danger is extraordinary. That is, it is one thing for an intervening actor to be unable to avoid a peril . . . because, through inattention, the danger was not observed in time; it is quite another to fail to exercise reasonable care and take proper action to avoid [the harm] after having become aware of the danger created by the original actor's negligence. In the first case, the intervenor's negligence may be called ordinary, and as to the first actor, a risk reasonably to have been foreseen; in the second case, negligence in the face of peril is properly denominated 'extraordinary' and as in § 447 excuses the original actor of liability for the harm brought about by the intervening negligence." Id. at 461-2, 263 A.2d at 896.

In order to avoid liability, the Defendant must show not only that the other causes contributed to the harm, but that they would have brought about the injury without his negligent act. See Boushell v. J. H. Beers, Inc., 215 Pa. Superior Ct. 439, 442-443, 258 A.2d 682, 685 (1969). In the review of the ...


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