Barkley v. Mitchell
| Decision Date | 06 February 1967 |
| Docket Number | No. 24340,24340 |
| Citation | 411 S.W.2d 817 |
| Court | Missouri Court of Appeals |
| Parties | Marguerite BARKLEY, Plaintiff-Appellant, v. C. R. MITCHELL d/b/a Mitchell & Dunn Construction Company, Defendants-Respondents. |
John C. Risjord, Gordon, Adams, Niewald & Risjord, Kansas City, for appellant.
John J. Alder, Alder & Morrison, Richard D. Rixner, Kansas City, for respondents.
Plaintiff Marguerite Barkley, a Kansas City restaurant owner, brought this action against defendant C. R. Mitchell and others to recover $4,834.25 for damages sustained when her restaurant building was extensively damaged by fire while defendant and his partner George Lee Dunn, doing business as Mitchell & Dunn Construction Company, were working on the premises, pursuant to a contract to do all construction work incident to general renovation of the restaurant. Plaintiff originally entered into contract with Smith-St. John Equipment Company to restore the premises. In turn, Smith-St. John made a contract with Mitchell & Dunn, who specialized in custom interiors, fixtures and formica work, as the 'general contractor' to do the construction work. That contract obligated Mitchell & Dunn in part as follows: 'We propose to furnish and install all materials and labor as herein described: * * * 10) A cloud like drop will be placed over new counter; lights to be wired by our electrician, this cloud like drop as per print. 11) The electrical work shall include moving existing switches by entry; installing a new light in entry, fixtures by us; installing lights over counter, fixtures by others, and installing a usable plug by or for cash register. * * * All work to be performed by skilled craftsmen; Workmen's Compensation and public liability to be in effect; our insurance is carried by T. H. Mastin'. Mitchell and Dunn employed Thompson Electric Company to do the above noted electrical work. While employees of Thompson were so engaged, sparks from electric wires started the fire which damaged plaintiff's property. The case was tried in April, 1965, before a jury and submitted only as against defendant Mitchell. The transcript does not disclose the procedures by which Smith-St. John and Dunn were dismissed from the case as defendants. The jury returned a verdict in favor of defendant Mitchell and plaintiff has appealed from the judgment.
Plaintiff's petition preliminarily alleges the facts heretofore set out and contains additional allegations to the effect that defendant(s) negligently caused damage by fire to plaintiff's building and contents by reason of acts allegedly negligent in: failing to turn off the electric current in the wiring before undertaking to rearrange or replace the same; failing to prevent electrical arcing between the electric wires and adjacent objects; failing to recognize the risk and danger of fire after having notice thereof; failing to promptly discover the fire; failing to promptly extinguish the fire and promptly warn others on the premises of the fire so that they could do so; and, failing to properly supervise the manner in which the electrical work was done.
The transcript before us is only partial. It contains no testimony of any witness for plaintiff except for a brief cross examination of a Mr. Schuske, who apparently testified as to the customs of the electrical trade in work practices. The circumstances of the fire appear only from defendant Mitchell's testimony and are in substance as follows: On the day before the fire Dunn employed Thompson and directed him to see Mitchell for instructions. Thompson accordingly reported to Mitchell who explained to him 'what we needed done and showed him the location of the plugs, switches, and so forth, and we agreed on a price'. Thompson was not the electrician regularly used by Mitchell and Dunn because the latter was otherwise engaged. Mitchell stated he knew very little about Thompson as an electrical contractor. On the day of the fire two of Thompson's workmen reported to do the work. Mitchell instructed them generally what was to be done and they started to work and began to dismantle wires in the ceiling, without turning off the electrical current to de-energize the wires. Mitchell said nothing to the electricians about turning off the current and knew of no reason why it wasn't turned off. He stated 'I had no occasion to ask them to turn the juice off, so they just went ahead and worked it'. There were overhead lights in the ceiling and Mitchell was working with those lights on--'everybody had to see to work.' Mitchell had long extension cords which could have been 'hooked up' to provide current if the wires the electricians were 'working' had been de-energized. The electricians could have 'turned off the line'. 'All they had to do was locate the circuit, pull the plug or the breaker'. That would not have bothered their work or Mitchell's work but would have made the wires 'cold'. It was Mitchell's position that as general contractor and in accordance with trade customs, he and Dunn were in charge of seeing that the job got done but that they were not concerned with how the electrical work was done or whether temporary wiring was provided so that the electricians did not have to 'jerk hot wires'.
Immediately prior to the fire the electricians were working on connections in a 'ceiling juice box' near the front of the building. They were standing on ladders and Mitchell was within two or three feet of them. As their work proceeded, sparks began to fly from the box and so continued periodically for three or four minutes before igniting the flammable ceiling. During that time, Mitchell said, he 'was probably watching the electricians to see what they were up to'. He never did direct them to turn off the 'juice' because 'It is not my job to warn them * * * it is not my province'. Of the fire's origin Mitchell stated, . Three or four minutes later Mitchell called the fire department. When work was resumed after the fire Mitchell employed a different electrician.
Plaintiff's theory of the case was submitted against defendant Mitchell by Instruction No. 2 which directed the jury to return a verdict for plaintiff if they believed (1) that defendant agreed to remodel the premises of plaintiff, (2) that defendant as general contractor had the duty of supervising the electrical work, (3) that defendant permitted the electrician to do the electrical work with the electricity turned on, and (4) that defendant knew or by using ordinary care 'would have known that by doing the electrical work with the electricity on there was a reasonable likelihood of fire', (5) that such failure was negligence, and (6) that as a direct result of such negligence plaintiff sustained damage. The instruction is not identified as derived from any MAI form.
On behalf of defendant Mitchell the court gave Instruction No. 3 in approved MAI form which conversed plaintiff's submission by directing a verdict for the defendant 'if you do not believe that defendant C. R. Mitchell was negligent'. Also at defendant's request the court gave Instruction No. 4 which reads as follows:
'Your verdict must be for defendant if you believe;
'First, the fire was caused by an employee of Thompson Electric Company; and
'Second, such employee was not an employee of Mitchell & Dunn Construction Company; and
'Third, Thompson Electric Company was a subcontractor to Mitchell & Dunn Construction Company, and that Mitchell & Dunn was thereby not negligent.
'MAI 13.06, as modified in notes'.
Plaintiff complains of error in Instruction No. 4 principally on the ground that it is in effect a 'sole cause' instruction, within the prohibition of MAI 1.03 which prescribes that 'No instruction shall be given on behalf of the defendant which hypothesizes that the conduct of one other than defendant was the sole cause of the occurrence'. In the Committee's Comment following MAI 1.03 three reasons are stated for the foregoing restriction, to-wit: . If we interpreted the instruction as one submitting the defense of 'sole cause', we would necessarily agree with plaintiff that its submission was erroneous because of the prohibition imposed by MAI 1.03.
Defendant submits that plaintiff misconceives 'the purpose and composition of Instruction No. 4 in calling the instruction 'sole cause" inasmuch as the major issue contested at the trial was whether Thompson was an independent contractor whose 'duties and obligations were independent of defendant Mitchell', or whether he was Mitchell's employee, servant and agent under the latter's supervision, direction and control. It is apparent from the record that the above defined issue was of primary significance. In his answer defendant Mitchell pleaded as a defense that 'Thompson Electric Company (was not) the agent, servant or employee of defendant C. R. Mitchell, or of the partnership of Mitchell & Dunn Construction Company' and that 'all allegations of such alleged agency are expressly and specifically denied'. In support of this pleaded defense Mitchell offered considerable testimony to the effect that it was the trade custom of contractors to subcontract electrical work; that the general contractor does not tell the electricians anything about how to perform their work and that it is not the custom or practice to tell the electricians when the electricity is to be shut off. Having pleaded and offered evidence tending to support his theory that Thompson Electric Company was an...
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