Tice v. E. I. Du Pont De Nemours & Co.

106 S.E.2d 107, 144 W. Va. 24

• Court: West Virginia Supreme Court
• Decided: December 2, 1958
• Docket: 10957
• Status: Published

Opinions

Given, Judge:

Plaintiff, Arthur Wayne Tice, Jr., instituted an action of trespass on the case, in the Circuit Court of Wood County, against defendant, E. I. du Pont de Nemours & Co., for damages for personal injuries alleged to have resulted from the failure of defendant to furnish “a good, proper, suitable and reasonably safe place” to perform work. Defendant demurred to plaintiff’s first amended declaration, contending that plaintiff’s alleged cause of action was barred, for the reason that it occurred more than one year prior to the institution of the action, and filed a special plea, based on the same contention. The trial court overruled defendant’s demurrer to the amended declaration, and sustained a demurrer of plaintiff to the plea of the statute of limitations. On trial of the general issue, the jury returned a verdict for plaintiff in the amount of ten thousand dollars, and judgment for that amount was entered against defendant.

Defendant, engaged in the construction of a chemical ■plant, at Cireleville, Ohio, entered into a contract with ■Armstrong Cork Company, whereby Armstrong, an independent contractor, agreed to insulate various pipes constituting part of the plant. Plaintiff, an employee of the independent contractor, not of defendant, was engaged in the insulation of the pipes at the time of the injury, May 7, 1954, in a room described as the caustic soda room. That room was about twenty feet square, with a ceiling approximately thirty feet high. In a corner of that room an interior toilet, in size about seven feet, four inches by three feet, four inches by nine feet high, had been constructed. The walls of the toilet were of brick and the ceiling of transite, an asbestos-cement sheet of material about one-fourth inch in thickness.

To enable the workmen to reach the several pipes to •be insulated, the pipes being about five to ten feet below the ceiling of the room and extending through the room, a scaffold about six feet in width was constructed and placed in position in the room. Attached to, as a part of the scaffold, near one end thereof, was a ladder. Defendant, in accordance with the agreement with the independent contractor, constructed the scaffold, but had no control over the placement thereof, or over the workmen engaged by the independent contractor, though there is some evidence to the effect that engineers of defendant advised the independent contractor as to the manner of the placement of the scaffold. At the time of the accident, the scaffold was so placed that the end thereof to which the ladder was attached, was practically against the side wall of the toilet. The scaffold, however, did not project over the top of the toilet. On the morning of the accident, plaintiff and another employee were directed by the independent contractor to insulate the pipes in the caustic soda room. They commenced work on that day at about 8:00 A.M., and. continued to work in that room until the time of the injury, about 3:15 P.M. Immediately before the accident, plaintiff climbed from the top of the scaffold onto one of the pipes to be insulated and, astride the pipe, crawled thereon to a position over the toilet, (a practice sometimes referred to as “cooning”). While there engaged in the insulation of a pipe, he dropped his trowel, which fell to the top of the toilet. Plaintiff then descended from the pipe to the top of the scaffold, down the ladder to the top of the toilet, stepping from the ladder onto the top of the toilet for the purpose of reaching his trowel, when he broke through the covering over the top of the toilet, falling to the floor, causing the injuries complained of.

At the time of the accident, construction of the caustic soda room had not been completed and, apparently, some work was necessary to the completion of the toilet. There appears to be no question that at safety meetings plaintiff and other employees had been warned against the practice of “cooning” pipes, though plaintiff testified that on the day of the accident he requested information as to how to insulate the pipes over the toilet beyond the end of the scaffold, and was instructed by his immediate superior, a foreman of the independent contractor, to “Get it the best way you can”. Plaintiff was experienced in the type of work in which he was engaged at the time of his injuries.

We first consider the question relating to the applicable statute of limitations. To be significantly kept in mind are the facts that the action is one for personal injuries, not involving death of the injured or of the wrongdoer; that the cause of action arose in Ohio; and that the law of that State governs the substantive rights of the parties; but that the adjective law of this State, where the action was tried, controls the procedure. Saena v. Zenith Optical Co., 135 W. Va. 795, 65 S. E. 2d 205; 4 M.J., Conflict of Laws, Section 34. A statute of limitations is considered part of the remedy, one of adjective law, so that the applicable statute of the state where trial is had is applied and governs. 4 M.J., Conflict of Laws, Section 39.

Code, 55-2-12, as amended, reads: “Every personal action for which no limitation is otherwise prescribed shall be brought (a) within two years next after the right to bring the same shall have accrued, if it be for a matter of such nature that, in case a party die, it can be brought by or against his representative; and (b) if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued, and not after; and (c) every right of action mentioned above in clause (a) heretofore accrued shall be brought within two years hereafter or within five years from the time such action accrued, whichever shall be less.” An amendment, Chapter 2 of the Acts of. the 1949 Legislature, reduced from five years to two years the period provided in Clause “(a)”, quoted above.

From the language of the statute quoted, and from the decisions hereinafter mentioned, it is clear that had the cause of action here sued on accrued in this State, the period of limitation would be one year. But plaintiff contends that since, under the statute quoted above, the period of limitation is two years if the matter be “of such nature that, in case a party die, it can be brought by or against his -representative”, and since such action in Ohio is “of such nature”, the period of limitation as to the instant case is two years, the matter of the survival of the cause of action being one of substantive law, governed by the law of the place where the wrong was committed.

The applicable Ohio statute, Section 2305.21 (11235), Baldwin’s Ohio Revised Code, reads: “In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.” This statute makes it certain that such a cause of action as that here involved, in Ohio, is “of such nature that, in case a party die, it can be brought by or against his representative”. In 1 C.J.S., Abatement and Revival, Section 135, it is pointed out that: “The law of the state wherein a cause of action arose governs its survivability * * *”. See Goldstein v. Gilbert, 125 W. Va. 250, 23 S. E. 2d 606; Grim v. Moore, 121 W. Va. 299, 3 S. E. 2d 448; Keesee, Admr. v. Atlantic Greyhound Corp., 120 W. Va. 201, 197 S. E. 522.

In West Virginia it is held: “1. The common law rule that an action for personal injuries, not resulting in death, does not survive the death of the wrongdoer, prevails in this state, and is not changed by Code, 55-7-5 (Lord Campbell’s Act) as amended by Chap. 20, Acts of Legislature 1931. Said amendment relates only to actions for wrongful death.” Byrd, Sheriff, etc. v. Lon F. Byrd, Administrator, etc., et al., 122 W. Va. 115, 7 S. E. 2d 507. See Hereford v. Meek, 132 W. Va. 373, 52 S. E. 2d 740. “* * * American statutes authorizing recovery for wrongful death are merely adoptions, or adaptations, of the English ‘Lord Campbell’s Act’, enacted by the British Parliament in 1846. Our statute, like its prototype, clearly created a new right of action and operated for the benefit, not of the decedent’s estate, but of his distributees * * Burgess, Admr., etc. v. Gilchrist, 123 W. Va. 727, 729, 17 S. E. 2d 804, 806. See Woodford v. McDaniels, 73 W. Va. 736, 81 S. E. 544, 52 L.R.A., N.S. 1215; Hoover’s Adm’x. v. Chesapeake and Ohio Ry. Co., 46 W. Va. 268, 271, 33 S. E. 224.

It is contended further, however, that since Code, 55-2-12, as amended, applies only to personal actions, for which no limitation is “otherwise prescribed”, the limitation applicable in the instant case, by virtue of such exception, is governed by the one year limitation provided by Code, 55-7-8, as amended. That section reads: “Where an action is brought by a person injured for damages caused by the wrongful act, neglect or default of any person or corporation, and the person injured dies pending the action, the action shall not abate by reason of his death but, his death being suggested, it may be revived in the name of his personal representative, and the declaration and other pleadings shall be amended so as to conform to an action under sections five and six of this article, and the case proceeded with as if the action had been brought under said sections. But in such case there shall be but one recovery for the same injury. And any right of action which may hereafter accrue by reason of any injury done to the person of another, and not resulting in death, by the wrongful act, neglect or default of any person, shall survive the death of the wrongdoer and may be enforced against his executor or administrator, either by reviving against such personal representative a suit which may have been brought against the wrongdoer himself in his lifetime, or by bringing an original suit against his personal representative after his death, whether or not the death of the wrongdoer occurred before the death of the injured party; but any such action shall be instituted within one year from the time such cause of action accrued. Nothing contained in this section shall be construed to extend the time within which an action for any other tort shall be brought, nor to give the right to assign a claim for a tort not otherwise assignable.”

The first, second and fourth sentences of Section 8, just quoted, first became part of the Code of this State with the adoption of the 1931 Official Code. As such, by clear terms it related only to an action where “the injured person dies pending the action”. By an amendment, Chapter 2, 1945 Acts, the third sentence down to the semi-colon therein became a part of the section. This amendment, by its clear terms, related only to such an action as “shall survive the death of the wrongdoer”. By a later amendment, Chapter 4, 1949 Acts, the semicolon mentioned was substituted for a period, and this clause inserted: “but any such action shall be instituted within one year from the time such cause of action accrues”. Prior to the 1949 amendment, the section contained no limitation governing the time in which any action might be instituted. It is significant, we think, that the last mentioned amendment does not apply where death of neither party has occurred.

Reliance is had on the holdings in Hereford v. Meek, 132 W. Va. 373, 52 S. E. 2d 740, and City of Wheeling ex rel. Carter v. American Casualty Co., 131 W. Va. 584, 48 S. E. 2d 404. In the Meek case the Court was careful to point out that the decision “* * * applies only to an action based upon a right of action which accrues by reason of an injury done to the person of another, when the injury does not cause the death of the injured person and when, after the injury is inflicted, the wrongdoer dies, and which right of action, by virtue of the statute, survives the death of the wrongdoer and may be enforced against his personal representative; and that the holding in these cases is limited to a situation expressly covered by Section 8, as amended, and to an action based upon the right of action dealt with by its provisions. It should not be considered as applicable to or controlling of actions for personal injuries generally when the death of the wrongdoer does not occur or to any other type of personal action which does not clearly come within the express provisions of the statute, as amended by Chapter 2, Acts of the Legislature, 1945 * * *”.

In Jones v. Jones, 133 W. Va. 306, 58 S. E. 2d 857, decided subsequent to the effective date of Chapter 2 of the 1945 Acts, the Court held: “Where death of a party in interest is not involved a right of action to recover for personal injury is barred under Code, 55-2-12, after the lapse of one year from its accrual.” In the opinion the Court stated: “In our opinion, therefore, the use of the word ‘survive’ in the syllabus in the Meek case does not affect the nature of the cause of action under Code, 55-2-12, and consequently does not apply the five year limitation generally to actions for personal injury. That case, correctly viewed, restricts the application of Chapter 2 of the Acts of 1945 to cases where the death of the wrongdoer follows the injury complained of.” In the concurring opinion of Judges Fox and Haymond, written by Judge Haymond, it is said: “* * * As expressly stated in the last paragraph but one in the opinion in the Hereford cases, no question was there presented with respect to the statute of limitations in an action for personal injury when none of the parties dies within one year after the injury occurred.

“In my opinion the Legislature, in amending Code, 1931, 55-7-8, by the enactment of Chapter 2, Acts of the Legislature, 1945, Regular Session, and in providing for the survival of a right of action against a wrongdoer who subsequently dies, did not intend to change or affect the period of limitations for actions for personal injuries in general or to cause the then existing five year statute of limitations to apply to such cases * * *”.

We are of the view, therefore, that the cause of action sued on in the instant case is “of such nature that, in case a party die, it can be brought by or against his representative”, within the meaning of Clause “(a)” of Code, 55-2-12, as amended, for the reason, and only for the reason, that the substantive question of survival is governed by the law of the State where the action arose. The conclusion reached is in accord with an excellent opinion dealing with the same problem, by Judge Watkins, in McIntosh v. General Chemical Defense Corporation, 67 Fed. Supp. 63, (D.C. S.D. W. Va.).

Does the evidence establish negligence on the part of defendant in failing to furnish plaintiff a safe place to work? Pertinent provisions of the Ohio Revised Code, Sections 4101.11 and 4101.12, read: “Every employer shall furnish employment which is safe for the employees engaged therein, shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof, shall furnish and use safety devices and safeguards, shall adopt and use methods and processes, follow and obey orders, and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters.”

“No employer shall require, permit, or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide, and use safety devices and safeguards, or fail to obey and follow orders or to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe. No employer shall fail to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees or frequenters. No such employer or other person shall construct, occupy, or maintain any place of employment that is not safe.”

The statutory provision has been interpreted as exacting a duty substantially the same as that imposed by Ohio law on an employer toward an invitee. Schwarz v. General Electric Realty Corp., 99 Ohio App. 191, 132 N. E. 2d 133, affirmed 163 Ohio St. 354, 126 N. E. 2d 906; Pare v. Gemco Engineering and Mfg. Co., 95 Ohio App. 141, 118 N. E. 2d 206; Bosjnak v. Superior Sheet Steel Co., 145 Ohio St. 538, 62 N. E. 2d 305; Davis v. Charles Shutrump & Sons Co., 140 Ohio St. 89, 42 N. E. 2d 663; Hozian v. Crucible Steel Casting Co., 132 Ohio St. 453, 9 N. E. 2d 143; Kelly v. Ford Motor Co., 104 Ohio App. 185, 139 N. E. 249; Ford Motor Co. v Tomlinson, 229 F. , certiorari denied 352 U. S. 826, 77 S. Ct. 38, 1 L. ed. 2d 49.

In Davis v. Charles Shutrump & Sons Co., supra, the first point of the syllabus reads: “Where the premises on which construction work is to be performed by contractor remain under the control of the principal employer while work is in the course of performance, a servant of the contractor is an 'invitee’ and as such is entitled to recover from the principal employer for any injury he may sustain by reason of the abnormally dangerous condition of the premises, only if principal employer has and the servant has not actual or constructive knowledge of the existence of such condition.”

In Pare v. Gemco Engineering & Mfg. Co., supra, the Court quoted with approval from Popowich v. American Steel & Wire Co., 13 F. 2d 381 (6th Cir.), as follows: “Employee of independent contractor, receiving injuries while washing windows for defendant at place where no employee of defendant was required to work, held not entitled to recover, under Gen. Code Ohio, §§ 871-15, 871-16, requiring safe place of employment for employees and frequenters, since ‘place of employment,’ as used therein, means place where some employee is required to work, either temporarily or permanently.”

In Wellman v. East Ohio Gas Co., 160 Ohio St. 103, 113 N. E. 2d 629, the Court held, Points 1 and 2, syllabus : “1. Where an independent contractor undertakes to do work for another in the very doing of which there are elements of real or potential danger and one of such contractor’s employees is injured as an incident to the performance of the work, no liability for such injury ordinarily attaches to the one who engaged the services of the independent contractor. 2. One who engages an independent contractor to do work for him ordinarily owes no duty of protection to the employees of such contractor, in connection with the execution of the work, who proceeds therewith knowing and appreciating that there is a condition of danger surrounding its performance.”

In Ford Motor Company v. Tomlinson, supra, the plaintiff, a painter and employee of an independent contractor, was injured through the negligence of an employee of a different independent contractor, both independent contractors having been engaged by Ford. Plaintiff contended that Ford, having reserved control and direction over the two independent contractors, and by ordering them to work in the same general area at the same time, the painting contractor above the contractor engaged in installing the floor of a particular room, was negligent in not providing a safe place for plaintiff to perform the work assigned to him. The Circuit Court of Appeals, Sixth Circuit, remanded the case with directions to enter judgment for defendant. It held, in effect, that as to the injuries sustained by the employee of the independent painting contractor, when platform on which he was working was knocked down by an employee of another independent contractor, engaged in laying the floor being constructed for the defendant, who exercised no control over the work of the independent contractors, liability could not be imposed on the defendant under the Ohio safe place statute, since defendant was not an insurer and was under no duty to foresee that the employees of the floor laying contractor would be negligent. See Pare v. Gemco Engineering & Mfg. Co., supra; Bosjnak v. Superior Sheet Metal Co., supra; Wellman v. East Ohio Gas Co., supra; Hetrick v. Marion-Reserve Power Co., 141 Ohio St. 347, 48 N. E. 2d 103.

In the case last cited, the Court held: “3. Such company is not liable to one injured as the result of some unusual occurrence that cannot fairly be anticipated or foreseen and is not within the range of reasonable probability.”

In reaching the question whether defendant was negligent in failing to furnish the plaintiff a safe place to work, we may assume, but do not decide, that plaintiff was free from negligence. The cases cited, we think, make it clear that a defendant, in such a case, is not liable in damages for an injury resulting to an employee of an independent contractor at a place where the employee was not required or supposed to perform work assigned to him. It appears to be clearly established, in the instant case, that plaintiff, at the time of his injury, left the scaffold provided for his convenience and safety and ventured onto the covering over the toilet, a place where he had no work to perform, and was not, at the time, actually performing work assigned to him. Had he remained on the scaffold and not “cooned” the pipe being insulated, as the owner-defendant had the right to expect him to do, the injury would not have occurred. True, his immediate foreman may have instructed him, in effect, to leave the scaffold and insulate pipes by “cooning” them, but we find no authority justifying recovery in such a case against the owner merely because an independent contractor instructed its own employee, over whom the owner had no authority, to place himself in a position of danger, at a place where he was not supposed to be, a place where he could not have performed any duty, or in a place not necessary or intended to be used in connection with his work.

In considering liability of the owner-defendant, it must not be overlooked that no contention is made that there existed any defect in the construction of the scaffold or the cover over the toilet, all evidence as to such matters being to the effect that they were constructed, and of such materials, as usual in such circumstances. While considerable argument is made relating to whether the transite ceiling was attached to the underside of the ceiling joists, it definitely appears from the evidence of those who installed the ceiling, and those who repaired it after plaintiff fell, that it was attached to the underside of the joists; that that was the usual and approved manner of such construction; and that the covering over the toilet was never intended to be walked on. Plaintiff testified that he “found out later it had transite on the bottom * * True, he testified further that a sheet of transite was also on top of the joists, but there is no evidence as to who placed it there. Those who installed the ceiling for defendant deny having done so. To hold a defendant liable, in the circumstances of such a case, would, in clear effect, make him an insurer against injuries of an employee merely because the injury occurred on premises owned or controlled by defendant. The injury, we think, was clearly an “unusual occurrence” that could not have been fairly “anticipated or foreseen and is not within the range of reasonable probability”, within the meaning of the holding in Hetrick v. Marion-Reserve Power Co., 141 Ohio St. 347, 48 N. E. 2d 103. It cannot reasonably be contended that the defendant should have anticipated that an employee would “coon” the pipe to be insulated, drop his trowel, and, to recover it attempt to walk over the covering of the toilet. We are, therefore, of the opinion that defendant violated no duty owed plaintiff in failing to furnish him a safe place to perform work.

The judgment of the Circuit Court of Wood County complained of is reversed, the verdict of the jury is set aside and a new trial awarded.

Reversed; verdict set aside; new trial awarded.