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November 13, 1953


The opinion of the court was delivered by: John E. Miller, District Judge.


Hereinafter, the plaintiff, Virgil C. Carroll, will be referred to as Carroll; the plaintiff, Paul A. Jennings, as Jennings; the plaintiff, Saint Paul-Mercury Indemnity Company, as the Indemnity Company; the plaintiff, Lonnie Sisney, as Sisney; the plaintiff and intervenor, Harry B. Hogan, as Hogan; and the defendant, M. Lanza, as Lanza.

The plaintiffs, Carroll and Jennings, each filed separate suits against the defendant, Lanza, in the Circuit Court of Baxter County, Arkansas, and on March 20, 1953, both of the cases were removed by the defendant to this Court on the grounds of diversity of citizenship and the amount involved. On March 27, 1953, the said defendant filed answers in the above mentioned cases.

On June 13, 1953, the plaintiffs, Sisney, Hogan and the Indemnity Company filed their complaint against the defendant, Lanza.

On June 27, 1953, the Court entered orders permitting Hogan and the Indemnity Company to intervene as plaintiffs in the Carroll and Jennings cases.

The defendant, on July 18, 1953, filed his answer to the complaint of Sisney, Hogan and the Indemnity Company.

The three cases all arose out of the same occurrence, and at the pre-trial conference on August 31, 1953, counsel for all the parties agreed that the cases should be consolidated for trial and final disposition. The Court entered a pre-trial order consolidating the cases, and further reciting that plaintiffs would not insist upon the application of the doctrine of res ipsa loquitur but that the cases should be tried upon a negligence theory.

On September 1, 1953, upon consent of counsel for the parties, the Court entered an order striking the cases from the trial calendar in the Harrison Division, upon agreement of the said counsel that the cases be tried to the Court, without a jury, at Fort Smith, in the Western District of Arkansas, at a later date.

On October 16, 1953, defendant filed motions for summary judgment in each of the three cases, and on the same date the Court denied the defendant's said motions in the Sisney and Jennings cases on the authority of Anderson v. Sanderson & Porter, 8 Cir., 146 F.2d 58. The Court deferred its ruling on defendant's motion for summary judgment in the Carroll case until the day of the trial, at which time the Court denied the motion for the reason that there appeared from an examination of the affidavits and depositions on file in support of and in opposition to the motion a question of fact regarding the alleged election of Carroll to accept compensation benefits under the Missouri Workmen's Compensation Law, V.A.M.S. § 287.010 et seq., instead of the Arkansas Act, Ark.Stats. § 81-1301 et seq.

On November 5 and 6, 1953, the cases were tried to the Court, without a jury, and at the conclusion of plaintiffs' evidence, the defendant moved for judgment in its favor in each of the three cases on the merits. The defendant also moved for judgment in the Carroll case on the specific ground that he had elected to accept compensation payments under the Missouri Workmen's Compensation Law, and that such remedy was exclusive, thus precluding the institution of this suit by Carroll. The Court denied defendant's motion in all of the cases on the merits, but deferred its decision on the specific motion attacking the jurisdiction of the Court in the Carroll case until the conclusion of the trial on the merits.

Now, the Court, having considered the pleadings, ore tenus testimony of the witnesses, exhibits, stipulations, written briefs and oral arguments of the attorneys for the respective parties, makes and files herein its findings of fact and conclusions of law, separately stated.

Findings of Fact


The plaintiffs, Carroll and Hogan, are citizens and residents of Missouri. The plaintiffs, Jennings and Sisney, are citizens and residents of Arkansas. The plaintiff, Indemnity Company, is a corporation organized and existing under the laws of Delaware, and is the insurance company carrying workmen's compensation insurance on Hogan and his employees. The defendant, Lanza, is a citizen and resident of Louisiana. The amount in controversy, exclusive of interest and costs, exceeds the sum of $3,000 in each of the three cases.


Carroll was a foreman and a regular employee of Hogan and had been for several years. Both Carroll and Hogan were and are residents of Missouri and the employment contract between them was entered into in that State. The accident involved herein occurred in Arkansas.

The defendant, Lanza, had a contract with the United States Government in connection with the construction of the Bull Shoals Dam in Arkansas. On January 22, 1952, Hogan entered into a contract with Lanza whereby Hogan agreed to furnish all labor, material and necessary scaffolds and ladders to perform all the general painting required by the contract Lanza had with the Government. A supplemental contract was entered into for the painting of the "trash racks" as set forth in finding of fact Number 3.

Hogan had secured workmen's compensation insurance from the Indemnity Company covering his employees in both Arkansas and Missouri. Subsequent to the accident, Carroll received thirty-four weekly payments of $30 each in accordance with the Workmen's Compensation Law of Misssouri. These payments were made by drafts drawn on the Indemnity Company and were delivered to Carroll by Mr. Fisher of the firm of Allen, Woolsey & Fisher, attorneys representing the Indemnity Company.

After receiving the letter from Mr. Carroll, the Indemnity Company wrote to the Arkansas Workmen's Compensation Commission concerning Carroll's desire to receive compensation pursuant to the Arkansas law. In its letter to the Commission the Indemnity Company enclosed Employer's First Report of Industrial Injury, Form A-8; Report of Initial Payment of Compensation, Form A-9; Surgeon's Report, Form A-12; and a photostatic copy of Carroll's letter to the Indemnity Company. Upon the filing of the above mentioned papers, the Arkansas Workmen's Compensation Commission accepted said filing and assigned thereto its Claim No. A329223 and Carroll is now receiving weekly benefits of $25.00 under the Workmen's Compensation Laws of Arkansas.


By letter of November 7, 1952, Hogan submitted to Lanza a bid to paint eighteen "trash racks". The letter provided, inter alia, "After racks have been set in upright position and arranged so as to be accessable for painting, all areas are to be cleaned of rust by wire brushing and sandpaper and given three coats of Coal Tar Paint as specified by Army Engineers. * * * The above price does not include sand-blasting or setting racks in position for painting." On November 14, 1952, defendant, by letter, authorized Hogan to proceed with the painting "as proposed in your letter dated November 7, 1952."

It was necessary to enter into this supplemental contract because the original contract between Lanza and the Government did not cover the painting of the trash racks.

The "trash racks" referred to herein are constructed as follows:

The outside metal frames when in an upright position are approximately 13 feet long, 10 feet high, and 12 inches wide. Inside the frames there are four cross bars extending across said frames parallel to the ground and about 2 feet apart. Also inside the frames there are 25 steel "fins" which are approximately 10 feet long, 5 inches wide, and 7/8 of an inch thick. When the racks are in an upright position, the fins are perpendicular to the ground and 10 feet high, i. e., approximately the height of the rack. The sides of the fins which are 5 inches wide are parallel to the ten-foot ends of the outside frames. Approximately 3 inches of the width of each fin is within the frame and 2 inches of each fin protrudes from the frame. In other words, a side view of a trash rack in an upright position discloses the 12-inch side of the solid metal frame with the fins protruding 2 inches out of the frame for the full height of the rack, making a total width of 14 inches including the fins. The fins in a rack weigh approximately 4,000 pounds and the remainder of the rack weighs approximately 1,400 pounds, constituting a total weight of 5,400 pounds. Therefore, the side of the frame from which the fins protrude weighs a great deal more than the opposite side and the center of gravity is not in the center of the twelve inch base but to the side from which the fins protruded. On the top of each trash rack are two "lifting eyes", one toward each end of the rack. The lifting eyes are curved metal bars, both ends of which are attached to the top of the trash rack, and these lifting eyes are evidently designed to facilitate the moving and handling of the trash racks.

In the latter part of November, 1952, defendant's employees delivered the trash racks to the place where they were to be painted, which place was south of the Bull Shoals Dam and east of the river. The racks were first stacked flat on the ground in six stacks of three racks each. While the racks were in this position, Carroll, Jennings and Sisney cleaned and painted the outer flat surfaces of the racks and some of the fins. Following that, defendant's employees set the racks in an upright position to be painted by Hogan's employees. The racks were set up as follows:

Pieces of 2" by 12" lumber from 2 to 4 feet long were placed on the ground and two railroad rails were placed on the boards. The rails were placed parallel to each other, about 8 or 9 feet apart, and were running from south to north. Defendant's employees used a carpenter's level and placed the rails in such a manner as to make them absolutely level. After the rails were placed, defendant's employees used a truck with an A frame to lift the racks and place them upright on the rails so that the racks rested across said rails and perpendicular thereto. As the racks were put in place, about 3 feet apart, two "spreader braces" were cut and placed between each two adjacent racks. The spreader braces consisted of 2" by 4" pieces about 3 feet long to which two short pieces of 1" by 4" were nailed. A spreader brace was made by measuring the distance between the two adjacent racks and sawing a 2" by 4" to that length. Then the 2" by 4" was placed flat and a short piece of 1" by 4" was placed, also flat, on each end of the 2" by 4" and extending out a few inches beyond the end thereof. The two pieces of 1" by 4" were nailed to the 2" by 4", thus completing the spreader brace. When the spreader braces were completed and were placed between two racks, the short pieces of 1" by 4" rested on top of the racks supporting the 2" by 4" which rested between the racks. When in position, the spreader braces were parallel to the rails and near the lifting eyes of the adjacent racks. The braces were not attached to the racks in any manner, but merely rested on top of the racks as above described.

The preceding procedure was followed until ten racks were set upright on the two parallel rails. Then the end racks were anchored by double strands of number 9 wire attached to the lifting eyes and extending to metal pins which were set in the ground a few feet from the said end racks. Also, each two adjacent racks were fastened to each other by means of number 9 wire which was attached to the lifting eyes of the said adjacent racks. Thus, each rack was attached to the next in two places, i. e., from the two lifting eyes on one rack to the two lifting eyes on the next rack, and the two end racks were each supported by two guy wires extending to metal pins in the ground. All the wires ran parallel to the steel rails.

After the ten racks were placed, another set of two rails was placed east of the said ten racks and parallel to the first set of rails. Then, eight racks were placed on the second set of rails in the same manner as the first ten racks were placed, the only difference in the placing of the two sets of racks being that the southeast guy wire in the eight-rack row was attached to the rail rather than a metal pin. All the racks in the eight-rack row except one were placed so that the fins were toward the north. When the eight-rack row was completed, there was an aisle of approximately four feet between said row and the ten-rack row. All of the aforesaid work connected with the setting of the racks in an upright position was done by the defendant's employees as required by the contract between Hogan and Lanza.

Carroll was notified that the racks had been placed in position, and he, Jennings and Sisney proceeded with the painting of the racks. They first used power sanders and power buffers to clean the racks. Then they applied a primer coat and a second coat to the racks, and on the day of the accident, January 26, 1953, they were applying the third and final coat of paint to the eight racks. Up to the day of the accident about seven weeks had elapsed since the painting of the racks began and since they had been placed in position for painting. Their work was intermittent for two reasons. (1) they could paint only when the temperature was above 50° and (2) they could not paint when excessive moisture was on the racks. Thus, during the seven weeks they had actually worked only 160 man hours on the racks. The work, at best, was fairly slow because it was necessary to heat the paint to 100° before it could be applied. The paint was applied with a regular heavy duty four-inch brush. It was necessary to use a scaffold for the painting of the upper portions of the racks, and such a scaffold was made by placing three 2" by 4" pieces parallel to the rails, each 2" by 4" resting on the cross bars of the two adjacent racks. Then a 2" by 8" work plank was placed on the 2" by 4" pieces, thus making the scaffold.


On January 26, 1953, Jennings and Sisney arrived at the location of the racks about 8:00 a. m. and built a fire for the heating of their paint. Carroll arrived about 8:30 and assisted in the preparatory work.

On the same morning, Mr. C.C. Hargis, defendant's superintendent, along with two of defendant's employees, H.D. Crosby and David York, loaded some scrap lumber in a pick-up truck and proceeded to the location of the racks. The rails supporting the racks belonged to the United States Government, and, upon its request for the rails, the defendant's employees found it necessary to remove said rails. This was the first time since the racks were set up in November that defendant's employees did any work in or about the said racks. Upon arrival at the racks about 8:30 a. m., defendant's employees unloaded the scrap lumber south of the racks and then began experimenting in an effort to ascertain a suitable method of removing the rails. They secured a 4" by 6" fir pry pole about 12 feet long and, using a block for leverage, attempted to pry up the west end of the first rack on the south end of the ten-rack row. However, they discovered that it would take more men to handle the job, and they spent their time carrying cross ties and "cribbing" (small pieces of scrap lumber) while waiting for more help to arrive. About 9:00 a. m., Mr. Doyne Hurst, defendant's foreman in charge of the placing of the racks, and three other employees of defendant arrived at the racks to perform the work of removing the rails. Someone had removed most, if not all, of the spreader braces from their proper places. Mr. Hurst noticed this, but he did not have them replaced, apparently because he did not think they were necessary or important.

The operation of removing the rails was performed as follows:

A 7" by 9" or a 6" by 8" cross tie, about 8 feet long, would be placed under the racks, parallel to the rails and just inside the rail nearest the end of the rack to be raised. This cross tie could be placed without raising the racks. Then two men would use the pry pole and raise one end of the rack while Mr. Hurst placed enough cribbing on top of the cross tie to hold the rack, when the pry pole was removed, above the rail sufficiently to permit the removal thereof. They did not use a level to ascertain whether the racks, after the rails were removed, were still level when resting on the cross ties and cribbing. Since the aisle between the two sets of racks was only four feet wide, it was necessary for the men operating the pry pole to stand between the racks in the eight-rack row while raising the east end of the racks in the ten-rack row. The racks in the two rows were not even with each other, and thus the pry bar was not always exactly parallel to the rack being raised.

The ground on which the racks were placed was filled dirt and was wet and soft at this time.

Defendant's employees began work on the west end of the rack on the south end of the ten-rack row and proceeded to raise and block the west ends of all the racks in the ten-rack row. They next raised and blocked the east ends of said racks in the ten-rack row. After completing the work on the ten-rack row, they began work on the eight-rack row, starting with the west end of the rack on the north end of the said eight-rack row. At the time of the accident they were working on the west end of the third, fourth or fifth rack from the south.

In the meantime, Carroll, Jennings and Sisney, being unable to commence painting because of the moisture on the racks, went to get coffee at a place about one and one-half miles from the racks. They returned about 10:30 while defendant's employees were raising the ten-rack row and began painting the racks in the eight-rack row. Carroll stayed on the ground and painted the lower portion of the racks while Jennings and Sisney worked on the scaffold painting the upper portion of the racks. They began at the south end and at the time of the accident, Carroll was painting the lower part of the south side of the third rack from the south. Jennings and Sisney were on the scaffold between the fourth and fifth racks, numbering from the south. Jennings was painting the south side of the fifth rack and Sisney was painting the north side of the fourth rack.

At about 11:30 a. m. on January 26, 1953, the southwest guy wire on the eight-rack row broke and all eight racks fell toward the north, which was the side on which the fins protruded. Defendant's employees were working on the said row at the time the racks fell, but the pry bar was not being used at that exact time. When the racks fell, Carroll attempted to get free but his left forearm was caught between the second and third racks. Sisney was thrown clear of the racks, but Jennings was caught between the fourth and fifth racks.


The plaintiffs, Carroll, Jennings and Sisney, knew that defendant's employees were working on the ten-rack row, and knew generally the nature of the work they were doing. However, none of defendant's employees notified the said plaintiffs that they had begun work on the eight-rack row, apparently because, as Mr. Hurst testified, "They had a foreman there," referring to Carroll. There is no direct testimony that any of plaintiffs knew that defendant's employees had begun to raise the eight-rack row and to remove the iron rails and to substitute therefor cross ties and cribbing as a foundation for the eight racks to rest upon. There was proof of some circumstances that tended to show plaintiffs saw the defendant's employees at work on the eight-rack row but all of the plaintiffs testified that they did not know that the employees of defendant had moved over to the eight-rack row where plaintiffs were busily engaged in painting which required their full and complete attention. When all the facts and circumstances are considered, the court is convinced that the plaintiffs did not know that the defendant's employees were raising the eight-rack row and substituting cross ties and cribbing for the railroad rails foundation.


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