Thеse consolidated appeals arise out of a civil action for money damages for wrongful death. At the close of plaintiff’s case, the trial court sustained the joint motion of defendants Target Stores, Inc., Larson & McLаren, Inc., A. J. Nelson and George Root for a directed verdict. The jury returned a verdict in favor of plaintiff, decedent’s widow, for $50,000.00 against Gamble Construction Company, Inc.
Defendant Gamble appeals from the judgment contending that its mоtion for directed verdict at the close of the evidence should have been sustained. Plaintiff also appeals alleging error in the trial court’s ruling sustaining the joint motion for a directed verdict. Plaintiff’s motion for a new trial, however, refers only to defendant Larson & McLaren, Inc., architects. The remaining defendants, Target Stores, Inc., A. J. Nelson and George Root are not mentioned. Accordingly, plaintiff has preserved nothing for appellate review as to these defendants. Rule 78.07;
McMahon v. Charles Schulze, Inc.,
*687
We review the action of the trial court upon the premise that a verdict should not be directed “unless all reasonable men, in the honest exercise of a fair, impartial judgment,would draw the same coiiclusion from the facts which condition the issue; * * * where there is uncertainty arising from a conflict in the testimony or because, the facts being undisputed, fair-minded men would honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury; * * *.”
Sippel v. Custom Craft Tile, Inc.,
The facts that “condition the issue” in this case are as follows. Plаintiff’s decedent, a roofer of some thirty years’ experience, was applying glue to the roof of a Target store under construction in Ballwin, Missouri, when he fell through a hole in the roof and was fatally injured. Such holes, commonly found in uncompleted roofs, are left to permit installation of heating ducts and air-conditioning units after insulation of the roof is complete. They do not constitute defects in plans or specifications. Thus, there is no factual bаsis to determine the architect failed to use care in the preparation of plans and specifications for the construction of the building.
There is no contention or evidence that the plans were not complied with or were, per se, unsafe. What plaintiff does contend in essence is that the architects have a duty as “design professionals” to supervise the construction and insure that safety precautions are taken to prоtect workers. But architects are under no duty to supervise construction unless they expressly agree to do so.
Aetna Insurance Co. v. Hellmuth, Obata & Kassabaum, Inc.,
The evidence squarely placed the duty to take safety precautions upon defendant Gamble, not upon the architect. There wаs no conflict in the testimony creating uncertainty. The decision of the trial court sustaining the motion for a directed verdict as to Larson & McLaren, Inc. is affirmed.
Defendant Gamble contends on appeal that it was the statutory employer of plаintiff’s decedent under § 287.040(4), RSMo 1969, and that plaintiff is therefore precluded from bringing a common law action against it.
The relevant facts are not in dispute. Plaintiff’s decedent was fatally injured on April 23, 1971 when he fell through a hole in the roof of а partially constructed Target store where he was employed as a roofer. It was stipulated that defendant Gamble was the general contractor and that South-side Roofing Company, decedent’s employer, was Gаmble’s subcontractor. It was further stipulated that Southside Roofing Company was a Missouri corporation operating under this state’s Workmen’s Compensation Law, that the company had Workmen’s Compensation coverage while *688 decedent was employed on this job, that decedent was covered under that plan, and that plaintiff as his widow had received benefits from Southside’s insuror. The testimony of Gamble’s president established that Gamble was operating undеr the provisions of the Missouri Workmen’s Compensation Act at the time of the accident. The installation of the roofing insulation and membrane was done under Gamble’s contract with the owner, Gamble subcontracting that portion of thе work to Southside Roofing Company. Decedent was fatally injured while installing the roof’s insulation.
Suit was filed against Gamble and the other defendants on the theory of common law negligence. At the close of plaintiff’s case and again at the close of all the evidence Gamble moved for a directed verdict contending, inter alia, that its status as decedent’s statutory employer made it immune from a common law negligence suit when benefits had been paid by decedent’s immediate employer. The trial court denied defendant’s motions, ruling specifically that decedent was not a statutory employee of Gamble.
In response to appellant Gamble’s contention of immunity from suit through its status аs statutory employer, respondent Brown merely asserts that, for various reasons, the point has not been preserved for appellate review. She contends that Gamble failed to offer the trial court any case law or specific statutory sections for consideration in ruling on its motions and failed to state specific grounds for its two motions for a directed verdict as required by Rule 72.01. Respondent cites
Oganaso v. Mellow,
It was stipulated that Gamble was the general contractor for the construction of the Target store. Southside Roofing was the subcontractor and employer of plaintiff’s decedent, Brown. Brown was fatally injured while working at the construction site. All parties were operating under the Missouri Workmen’s Compensation Act. Section 287.040(4) of the Act provides in relevant part that the “immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. * * * The liability of the immediate employer shall be primary, and that of the others secondary in their order, * * * No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer.” This section protects each contractor and subcontractor on a project as to claims of all employees imme
*689
diately or remotely under him.
Ellis v. J. A. Tobin Construction Company, supra,
Respondent advances the theory incorrectly that the question whether an employee is barred from bringing a negligence action by his status as a statutory employee is a jury question, and that here the issue should have been submitted to the jury. Respondent’s difficulty arises from a misinterpretation of
Walton v. United States Steel Corporation,
Given the facts of this case, no other conclusiоn is possible but that the deceased workman was the statutory employee of defendant Gamble. The trial court should therefore have sustained Gamble’s motion for a directed verdict. The trial court correctly concludеd that the issue whether defendant Gamble was a statutory employer could be decided as a matter of law, but incorrectly concluded that it was not. For that reason defendant Gamble’s motion to vacate judgment and to entеr judgment in accordance with its motion for a directed verdict should have been granted.
The court’s judgment sustaining the motion of Larson & McLaren, Inc. for directed verdict at the close of plaintiff’s case is affirmed. The judgment in favor of plaintiff and against Gamble Construction Company, Inc. is reversed.