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McComish v. Desoi

Decided: March 18, 1963.

LAVINA MAE MCCOMISH, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF ROBERT G. MCCOMISH, DECEASED, PLAINTIFF-RESPONDENT,
v.
HARRY L. DESOI, ET AL., DEFENDANTS, AND BRENNAN COMPANY, INC., ETC., DEFENDANT-APPELLANT, AND BELOIT IRON WORKS, ETC., DEFENDANT-APPELLANT. ROBERT R. TOMAN, PLAINTIFF-RESPONDENT, V. HARRY L. DESOI, ET AL., DEFENDANTS, AND BRENNAN COMPANY, INC., ETC., DEFENDANT-APPELLANT, AND BELOIT IRON WORKS, ETC., DEFENDANT-APPELLANT



Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.

Freund

Defendants, Beloit Iron Works (Beloit) and Brennan Company, Inc. (Brennan), appeal from final judgments entered on jury verdicts in Superior Court, Law Division, awarding $160,000 to Lavina Mae McComish, administratrix ad prosequendum for the estate of Robert G. McComish, deceased, and $16,500 to Robert R. Toman. They further appeal from the denial of their respective motions to dismiss, for judgment notwithstanding the verdicts and for a new trial.

McComish and Toman were employed by the Whippany Paper Board Company (Whippany) of Whippany, N.J. McComish was killed and Toman injured on June 22, 1958 by the fall of the wire carriage of a paper-making machine. This carriage was being lowered by the use of a wire cable "A-sling," which was attached to an overhead crane. Plaintiffs claim that the cables and rigging of the A-sling were negligently constructed, installed, inspected and supervised, causing the injuries sustained as the natural consequence of this negligence. The pivotal question concerning liability is the duty owed by defendants, jointly or individually, to the plaintiffs. Each defendant denies this duty and claims that the trial judge erred in not granting its respective motions to dismiss, for judgment notwithstanding the verdict and for a new trial. Consequently, the relationship between the parties must be explored to determine the nature of this duty.

Beloit built, in its plant in Wisconsin, the basic paper-making machine, described as the No. 4 machine. Approximately 700 feet long and two stories high, the machine was

matchmarked, disassembled and shipped to the Whippany plant, where it was reassembled. Beloit provided engineers at Whippany throughout the entire installation period. Robert Mayo was a Beloit erecting engineer and had worked at Whippany for a year prior to the accident. Although he testified that he was merely a coordinator between Whippany and Beloit, his co-workers described him as actively supervising and directing the operations. In his statement taken the day after the accident, Mayo commented that he was a field engineer for Beloit and "I am supervising the installation of the No. 4 machine at Whippany Paper Board * * *. I made the plan for the strongback, and the mill men followed my plans." The strongback, a steel beam, formed the base of the A-sling.

During the construction of the No. 4 machine, the original Beloit plans for the movement of the wire carriage had to be altered due to a row of columns and overhead beams in Whippany's plant. The wire carriage, weighing approximately a ton, had to be repeatedly lifted and moved from one end of the machine to the other, depending upon the quantity and quality of the paper to be manufactured. While the original plans called for lifting or lowering this equipment by two vertical cables, the revised plan called for an A-sling to raise or lower the wire carriage. The A-sling was made of wire cable leading from the ends of the strongback to a single round shackle, to which the crane was attached. The wire ends were each fastened by two Crosby clips. The revised plan called for 3/4-inch diameter steel cable to be used for the arms of the sling.

Myron Cobb, Jr. was another Beloit engineer on the premises at the time of the accident. He testified that the original design provided for lifting the strongback by two crane hooks perpendicular to the line of the strongback. Cobb testified that he made the sketch suggesting the construction of the strongback.

Whippany contracted with Brennan to "[f]urnish all necessary labor, supervision, mechanics, tools, equipment and

materials required for the complete installation of the machinery" built by codefendant Beloit. Brennan's contract continues:

"* * * services of the manufacturer's supervisors shall be engaged by this Contractor where this Contractor feels it necessary for the proper installation of this Contractor's work. The cost of supervision of the manufacturer's representatives is not included in the basic contract. This Contractor will be subordinate to the manufacturer's supervisors in all matters concerning method of assembly, preparation of components, alignment, and all else pertaining to the proper installation of the machinery." (Emphasis added)

John Schultz, Brennan's superintendent, stated that Brennan's employees bolted the end plates after the A-sling was attached to the strongback. Schultz testified that Brennan only "installed" but did not "fabricate" the A-sling. Although he said that Brennan had complete charge of the assembly and rigging of the machine, Schultz ...


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