Bertino v. Marion Steam Shovel Co.

• Decision Date: 22 March 1933
• Docket Number: No. 9541.,9541.
• Citation: 64 F.2d 409
• Parties: BERTINO et al. v. MARION STEAM SHOVEL CO.
• Court: U.S. Court of Appeals — Eighth Circuit

64 F.2d 409 (1933)

BERTINO et al. v. MARION STEAM SHOVEL CO.

No. 9541.

Circuit Court of Appeals, Eighth Circuit.

March 22, 1933.

Clay C. Rogers, of Kansas City, Mo. (O. C. Mosman, Paul A. Buzard, Louis N. Wolf, and Cornelius Murphy, Jr., all of Kansas City Mo., and Sylvan Bruner, of Pittsburg, Kan., on the brief), for appellants.

Elliott H. Jones, of Kansas City, Mo. (J. M. Strelitz, W. C. Scarritt, Edward S. North, and A. D. Scarritt, all of Kansas City, Mo., on the brief), for appellee.

Before STONE, VAN VALKENBURGH, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

This is an appeal from a judgment dismissing "on the merits and with prejudice" at the close of plaintiffs' testimony an action brought by appellants under the Missouri Workmen's Compensation Act (Revised Statutes of Missouri, 1929, § 3299 et seq. Mo. St. Ann. § 3299 et seq.) to recover damages arising from personal injuries received by appellant Bertino.

The action was originally commenced in the state Circuit Court of Jackson county, Mo., but was removed on the ground of diversity of citizenship.

Facts about which there is no substantial dispute are as follows: The Alston Coal Company was engaged in operating a strip pit coal mine. It had agreed to purchase a large electric shovel from the defendant, Marion Steam Shovel Company. A written contract between the Alston Coal Company and the Marion Steam Shovel Company covering the purchase was identified by the witness Klaner, who was the president of the Alston Coal Company; was attached to his deposition; and was received in evidence over the objection of the plaintiffs. The contract, so far as here material, is set out in the margin.¹ The provisions of said contract which are here directly involved read as follows:

"Seller agrees at any time within thirty days after arrival at destination of said machine and equipment, upon Buyer's written request, to transfer within a reasonable time to Buyer for a period of ____ consecutive days the services of one skilled man to supervise, as employe of the Buyer, the erecting and starting of said machine; failure to request the services of said skilled man shall constitute an acceptance by the Buyer of said machine and equipment, and a waiver of any warranty, express or implied, with reference thereto. (Italics ours.) * * *

"In addition to the erector furnished by the Seller to supervise the erecting and starting of shovel, Seller agrees to furnish an Electrician to supervise the installation of the electrical equipment, without charge to buyer."

The contract provided that the title to the shovel should remain in the seller until the purchase price had been paid in full. The shovel was sold in a "knock-down" condition.

The erection of the shovel occupied about three months, and was under the direction of one, Ed Titus, who was a regular employee of defendant, and was sent for the purpose pursuant to the contract.

Two electricians, employees of the defendant, were also at work on the job at the time of the accident. One of them, Hines, had been regularly assigned to the job by defendant; the other, Williams, was not regularly assigned to the job. His presence there and his status is explained by the following testimony:

"Q. Now were you asked or assigned by the Marion Steam Shovel Company to work at all on the Alston Coal Company 350 shovel here in question? A. No, only in a general way. Whenever I am in the vicinity where we have equipment I always go and check the equipment over; that is routine work.

"Q. I mean, were you assigned to work in the matter? A. No, sir, I was not.

"Q. You were simply out there, as I understand, looking over this new shovel and sort of checking it up? A. Yes, sir. Mr. Hines was the electrician who was assigned to install and operate the equipment, and I was there only two or three days looking it over and watching the operation of it. I was operating it at the time of the accident. I was just temporarily relieving Mr. Hines. At the time to the best of my knowledge, he was getting some floodlights ready to install on the machine in a little shed back of the machine.

"Q. And did you operate it just for the moment there at the request of Mr. Hines or Mr. Titus? A. Oh, for probably an hour or so. I just volunteered, nobody asked me that I know of. I think Mr. Titus consulted me about the matter of raising the dipper to put it into position. He told me that he was going to do it. I operated the mechanism to raise the dipper from signals given by Mr. Titus. * * * I know nothing of my own personal knowledge of the Alston job. I had not been assigned by the company at all to work on the erection, but I was out there looking around and when Mr. Hines was off looking after something else, I volunteered to substitute and help him, and whatever I did was under the supervision and direction of Mr. Titus.

"Redirect Examination.

"Q. Mr. Williams, you said on cross-examination that you were assigned to this work only in a general way, did not not? A. Yes.

"Q. Now you said something about going, when you are in the vicinity you go to other work and look it over? A. Yes, sir.

"Q. And make an inspection of it? A. Yes, sir.

"Q. That is a part of your duty? A. That is routine work, yes, sir.

"Recross Examination.

"Q. When you speak of doing that checking over in a general way, was it a part of your duty or were you assigned to work on the job at all? A. No, I was not."

The labor, except the supervision of the erection of the shovel and the installation of the electrical equipment and the actual operation of the equipment, was being done by the Alston Coal Company through its employees under the supervision of Titus.

On the date of the accident, Titus and the men under him were attempting to connect the dipper of the shovel to a mechanical device known as the dipper stick, and in doing this were raising, hoisting, and swinging the dipper by means of a chain attached to a hoist. This chain was the property of the defendant and was a seven-eighths inch chain, there being only one strand of the chain to carry the weight of the dipper. It was necessary to turn the dipper after it had been raised from the ground, and for that purpose Titus directed Bertino and the other men to take hold of the dipper and swing it around after it had been raised. Titus then took a piece of timber and unlatched or opened the door of the dipper, which permitted the end of the door to fall to the ground. In that position the men could not swing the dipper, so Titus ordered the engineer to hoist the dipper further, and at the same time told the men to take hold of it so as to line it up with the stick, which meant to twist it around when it was raised high enough to be clear of the ground. Pursuant to Titus' orders, plaintiff Bertino took hold of the dipper and was pushing on it when Titus gave the electrician another signal to raise it, and the electrician "jerked" the load, causing Bertino's hand to slip in between the dipper and the door, at which time the chain broke, causing the dipper to drop, and plaintiff's hand was caught between the dipper and the dipper door. It was severely mangled, and amputation was necessary.

At the time when Bertino saw that the chain was to be used to hoist the heavy dipper, he asked Titus if he was not going to use a cable to lift it; and Titus said, "No, that chain has lifted many a dipper up." Then Bertino asked him if he was going to take the door off the dipper, the door weighing about two tons. Titus said that it was safe.

Plaintiffs contend that defendant was negligent in using a chain instead of a cable for the purpose of raising the dipper; that it was negligent in raising the dipper with the door open; that it should not have attached the door until after the dipper was fastened to the dipper stick; that it was negligent in suddenly jerking the dipper while Bertino was pushing it; and that it was negligent in not warning Bertino of the danger of the chain's breaking.

Issues were raised in the court below whether there was not a defect of parties plaintiff; also whether there was not a misjoinder of causes of action. These issues were not passed upon directly by the trial court and are not pressed on this appeal. See, however, Ætna Life Ins. Co. v. Moses, 53 S. Ct. 231, 77 L. Ed. ___; General Box Co. v. Missouri Utilities Co. (Mo. Sup.) 55 S. W.(2d) 442.

Nor is it contended on this appeal that the question of negligence under the evidence was not for the jury.

The crucial question decided by the trial court and presented on this appeal is whether, in view of the provisions of the contract (above quoted) between the coal company and the defendant shovel company, it can be said that it conclusively appears that Titus was at the time of the accident an employee of the coal company, and that this conclusion is binding upon the plaintiffs.

The trial court held in the affirmative, and dismissed the action with prejudice.

We find no fault with the holding that the status of Titus, as between the parties to the contract, was fixed as an employee of the coal company. The language of the contract was plain, and such contracts may be valid. Sun Oil Co. v. Dalzell Towing Co., Inc., 287 U. S. 291, 53 S. Ct. 135, 77 L. Ed. ___.

But the plaintiffs were not parties to the contract, and its terms were not binding upon them. As to them, the status of Titus must be determined by consideration of other matters than the contract between the coal company and the shovel company.

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