Downing v. DONDLINGER & SONS CONSTRUCTION CO.

• Decision Date: 20 November 1968
• Docket Number: No. 15524-4.,15524-4.
• Parties: Roy L. DOWNING and Maryland Casualty Co., Plaintiffs, v. DONDLINGER & SONS CONSTRUCTION CO., Inc., and Link-Belt Speeder Co., Defendants.
• Court: U.S. District Court — Western District of Missouri

294 F. Supp. 104

Roy L. DOWNING and Maryland Casualty Co., Plaintiffs, v. DONDLINGER & SONS CONSTRUCTION CO., Inc., and Link-Belt Speeder Co., Defendants.

No. 15524-4.

United States District Court W. D. Missouri, W. D.

November 20, 1968.

Rodger J. Walsh, Biersmith & Walsh, Kansas City, Mo., for plaintiffs.

Rogers, Field & Gentry, Kansas City, Mo., for Link-Belt Speeder Co.

John Alder, Kansas City, Mo., for Dondlinger & Sons Const. Co.

MEMORANDUM AND ORDER GRANTING DEFENDANT DONDLINGER & SONS JUDGMENT NOTWITHSTANDING THE VERDICT

ELMO B. HUNTER, District Judge.

This matter is presently before the Court on defendant Dondlinger's motion to set aside the jury verdict and for judgment notwithstanding the verdict.

This is a diversity action arising out of a very serious accident and resultant injury to plaintiff Roy Downing while he was employed as a steel worker on the construction of military housing on the premises at Fort Leonard Wood, Missouri. At the time of the accident the military post at Fort Leonard Wood was owned by the United States Government.

Dondlinger & Sons Construction Co., a Kansas corporation, had a general contract with the government to erect housing on the post. Under this contract Dondlinger was responsible for the completion of the entire project outlined in the contract and was designated therein as the prime contractor. Wahib Steel Co. had a subcontract with Dondlinger to furnish and place the reinforcing steel for the housing. Wahib is not a party to this action, but the injured plaintiff Downing, a resident of Arkansas, was an employee of Wahib at the time of the accident and was working in the course of that employment. Plaintiff Maryland Casualty Co., a Maryland Corporation, was the insurance carrier for Wahib Steel. Maryland has paid substantial workmen's compensation payments to Downing and is continuing to make such payments. Link-Belt Speeder Co., an Iowa Corporation, was the manufacturer of the crane involved in the accident and injury to Downing.

The accident occurred on November 23, 1964. Downing was working on the third floor level of a partially completed building placing and tying steel. The steel was being lifted to this level by a crane and operator furnished by Dondlinger as provided in the subcontract between Dondlinger and Wahib. There was conflicting evidence as to exactly how the steel was descending when it struck Downing. One version was that it was coming down at an angle, swinging and jerking, and slammed into his side and then into his back. There was also testimony that the steel was swung over the building and then fell down "like a bullet" when the operator released pressure on the foot brake holding the load. Regardless of how the load of steel was falling it is undisputed that it struck Downing in the back and side seriously injuring him. As a result of this injury Downing is completely paralyzed below his waist and is confined to a wheel chair except that for very brief periods he is able to move short distances by the use of Canadian crutches. Downing has also lost the control of some of his bodily functions. He requires almost constant care and periodic medical treatment and will continue to require such care and treatment.

Suit was filed against Dondlinger on the theory of negligence. Dondlinger's primary defense was that it was a statutory employer under the Missouri Workmen's Compensation Act¹ and that the compensation statute provided the exclusive remedy for Downing. Suit was filed against Link-Belt as a products liability action on a theory of breach of implied warranty. Link-Belt's primary defense was that the crane was not defective and certainly not defective at the time it left Link-Belt's custody and control, but that the injury was caused by the negligence of the crane operator. All parties agreed that Missouri law was applicable and controlling on all the substantive issues in the case.

Prior to trial a dispute arose as to which section of the Missouri Workmen's Compensation Act was applicable, i. e. section 287.040(1) or section 287.040(3). Dondlinger contended that subsection 3 was controlling, and that under the Missouri cases construing this subsection, it was entitled to a directed verdict. Plaintiffs contended that neither subsection controlled, but that if the workmen's compensation act were applicable, subsection 1 thereof was controlling; that under this subsection whether or not Dondlinger was a statutory employer was a question for the jury. The Court was of the opinion that subsection 3 did control the question and that defendant was entitled to a directed verdict at the close of plaintiffs' case and also at the close of all the evidence, as requested by defendant Dondlinger. However, because of the serious nature of plaintiff's injury and the possibility that the Court might be in error as to the applicable Missouri law, and to obviate the possible need of a retrial, the Court decided to submit the case to the jury under subsection 1 by special interrogatories.

The jury was instructed on plaintiffs' contention that the operator of the crane, who was Dondlinger's employee, negligently caused the load of steel to fall on Downing. In the same instruction the jury was told that it was Dondlinger's contention that first, its employee was not negligent, and second, that even if the operator had been negligent, Downing could not maintain an action against Dondlinger because it was a statutory employer under subsection 1. This instruction was accompanied by two special interrogatories. The first asked whether Dondlinger's employee had negligently dropped the steel on Downing. The second asked whether Dondlinger had exclusive control of the premises in question which was the only disputed element of statutory employment under section 287.040(1). Plaintiffs objected to this instruction on the ground that a common law negligence instruction was the only proper instruction. Dondlinger objected on the ground that subsection 1 of the Workmen's Compensation Law was not applicable and that the case was controlled by subsection 3 thereof entitling Dondlinger to a directed verdict and judgment as a matter of law.

As to defendant Link-Belt's aspect of the case the jury was instructed to find for plaintiffs and against Link-Belt if they found that the crane had left the custody and control of Link-Belt in a defective condition and that this defective condition caused the injury to Downing. This instruction was also accompanied by special interrogatories seeking to determine the nature of the defect, if any, at the time the crane left Link-Belt and to determine if this crane remained in such defective condition up to the time of the accident.

The jury returned a verdict in the amount of $327,000.00 for the plaintiffs and against Dondlinger. As to the implied warranty aspect of the case the jury found for Link-Belt and against the plaintiffs. In answer to the special interrogatories the jury stated that the negligence of Dondlinger's crane operator had caused the steel to fall on Downing and that Dondlinger did not have exclusive control over the premises where the accident occurred. The jury also stated that it found no defect in the crane either at the time it left the custody or control of Link-Belt or at the time of the accident. In accordance with the findings of the jury the Court on October 10, 1968, entered a judgment in favor of the plaintiffs and against Dondlinger in the amount of $327,000.00. It is this judgment that Dondlinger is seeking to set aside.

In its motion to set aside the judgment Dondlinger raises the following contentions: (1) Section 287.040(3) is the applicable section and is controlling under the cases and statutes of Missouri, and under this section Dondlinger was entitled to a directed verdict and to judgment notwithstanding the verdict. (2) Even if section 287.040(1) is the applicable section all the evidence presented was that Dondlinger had exclusive control of the premises in question. Therefore, this question should not have been submitted to the jury, and the verdict of the jury is against the weight of the evidence and should be set aside. (3) That plaintiff did not introduce any evidence that Dondlinger's employee was negligent. That the only evidence of the operator's negligence was introduced by Link-Belt and plaintiffs could not use this evidence because they contended that the accident was caused by the defective crane.

In their opposing brief the plaintiffs raise the following contentions: (1) That Dondlinger abandoned section 287.040(3) and waived submission under this section. (2) That subsections 1 and 3 both require a finding that the purported statutory employer had exclusive control over the premises where the accident occurred and since the jury found against Dondlinger on the question of exclusive control it was not a statutory employer as to Downing. (3) That in the subcontract between Dondlinger and Wahib there was a provision that stated that the "general contractor (Dondlinger) to furnish crane with operator to unload and spot bundles, to hoist materials including setting of prefabricated reinforcing steel. This crane to be available during the regular working hours for this contractor's use (Wahib)." Plaintiffs argue that this provision has the legal effect of making Dondlinger a subcontractor of Wahib as to the furnishing of the crane; that therefore when Dondlinger injured Downing it was acting in the capacity of a stranger or at best a fellow employee of Downing and under Missouri law could be sued by Downing for common law negligence.

The Court is of the opinion that under Missouri law section 287.040(3) is the controlling section and under the cases construing this section Dondlinger is entitled to judgment notwithstanding the verdict. Because this fully disposes of the matter the Court will not rule on or discuss questions not necessary to or involved in the Court's...