Blankenship v. St. Joseph Fuel Oil & Mfg. Co.

• Decision Date: 11 September 1950
• Docket Number: No. 41651,No. 2,41651,2
• Citation: 360 Mo. 1171,232 S.W.2d 954
• Court: Missouri Supreme Court
• Parties: BLANKENSHOP v. ST. JOSEPH FUEL OIL & MFG. CO

Page 954

232 S.W.2d 954

360 Mo. 1171

BLANKENSHOP v. ST. JOSEPH FUEL OIL & MFG. CO.

No. 41651.

Supreme Court of Missouri, Division No. 2.

Sept. 11, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

Oct. 9, 1950.

Culver, Phillip, Kaufman & Smith and Francis Smith, all of St. Joseph, Missouri, for appellant.

Arvid Owsley, Robert S. McKenzie, and Stubbs, McKenzie & Williams , all of Kansas City, Mitchell & Hulse, St. Joseph, for respondent.

BOHLING, Commissioner.

Clifford Blankenship sued The St. Joseph Fuel Oil & Manufacturing Company, a corporation, for $50,000 damages for personal injuries arising out of the rental and use by his employer, Land Construction Company, a corporation, of defendant's street sweeping machine. The jury returned a unanimous verdict in favor of the defendant. Thereafter, plaintiff's motion for new trial was sustained on the ground defendant's instruction 'I' was erroneous. Defendant appeals, contending plaintiff failed to make a submissible case and said instruction was not erroneous.

Only two witnesses testified--plaintiff and his witness Fred Dawkins, manager of the Land Construction Company (sometimes hereinafter designated Construction Company), who gave the only testimony concerning the bailment of the sweeper. We state the evidence favorable to plaintiff.

Plaintiff was injured on August 18, 1947, while working for the Construction Company in rebuilding streets in the city of Fairfax, Missouri. The Construction Company had the contract and The St. Joseph Fuel Oil & Manufacturing Company (sometimes hereinafter designated Oil Company) was a subcontractor. The Construction Company regraded or swept and smoothed the street so the oil would adhere; then defendant furnished, applied, and cured the oil; and then the Construction Company applied the gravel and rolled and broomed or swept it back and forth on the street.

Plaintiff started to work for the Construction Company in May or June, 1947. His principal work was scattering gravel behind dump trucks, a gravel spreader. He was 27 years of age. He had received only an eighth grade education.

The Construction Company used defendant's mechanical 'sweeper' on the work, paying a rental therefor. The sweeper was axle driven. It had one when in front. The broom was between the front and rear wheels and was driven by means of a chain and sprocket arrangement from the axle between the rear wheels. Back of the broom was an assembly for its operation. Between the rear frame of the sweeper and said assembly, and across the right-half of the space between the rear wheels, was a steel grating platform on which the operator stood. Plaintiff testified the grating was two feet wide and about four feet long. There was like space, open, between the grating and the left rear wheel; and the chain and sprockets, which truned the broom by means of power furnished by the rear wheels, were below the level of the grating in this open space. The chain and sprockets were exposed--not guarded. The operator raised or lowered the broom by means of a handle extending about four or five feet towards the rear from the assemply. The handle reached about to the operator's hip with the broom down and about to the calf of his leg with the broom raised. The operator steadied himself by holding onto the handle. There was no stationary handhold.

On the day of plaintiff's injury, the Oil Company had finished its work. The only work going on was the Construction Company's work and the equipment on the job was the tractor and the sweeper. Only three men remained on the Fairfax project; to wit: J. C. Hudson, the superintendent, and Hardold Little and plaintiff, each an employee of the Construction Company. Hudson supervised the Oil Company's work for it; and also the Construction Company's work for it. Hudson instructed plaintiff to operate the sweeper and instructed Little to operate the tractor and pull the sweeper. They were to sweep the gravel from the curb to the center of one of the streets, Hudson then left. Plaintiff had operated the sweeper without any trouble for eight hours about a week prior to his injury.

Plaintiff testified that about 8:30 a. m. they had gasoline put in the tractor, and the sweeper greased; that the station operator wrote 'St. Joseph Fuel Oil' on the ticket and Little signed it.

The men resumed work. Plaintiff testified that about 10:30 a. m., after they turned the sweeper around to proceed east, he let the broom down; that they had proceeded but a short distance when the sweeper lurched, or jarred, or hit something (he did not know what as he could not see because of the dust), and this caused him to be thrown off balance and to fall sideways through the open space (to his left) and catch his leg in the chain and sprocket. His leg was so badly injured it had to be amputated four or five inches below his knee.

There was evidence warranting findings that W. E. Grace Manufacturing Company of Dallas, Texas, sold Marion Land a road sweeper in 1940, and that all road sweepers manufactured and sold by that Company had a metal covering or casing over the chain and sprockets which turned the broom.

Plaintiff's witness Dawkins testified to the following effect: The Land Construction Company was incorporated in April, 1945, immediately after Dawkins joined the organization. He had been with the State Highway Department since 1929. Marion Land, the individual, was never connected with the corporation. It did a general road construction business. It owned much equipment and had had equipment on the Fairfax job. It did not own a sweeper. As was the custom and general practice it rented equipment from other contractors under verbal agreements as occasion required. It had rented this sweeper from defendant on all of its projects where a sweeper was needed since 1945, embracing approximately twelve jobs. The sweeper had at all times been in the same condition it was on the Fairfax project. The Construction Company moved the sweeper from one job to another, and knew as much, if not more, about its condition as defendant. When the Construction Company rented the sweeper it 'took it as it was,' 'as is,' there being no warranties or presentations made by defendant. The agreement with defendant was that the Construction Company had possession and full control over the supervision, operation, and maintenance of the sweeper and would return it in as good condition as received, less normal wear and tear. Defendant was under no obligation to do anything about the sweeper, it being the obligation of the Construction Company to take care of it, supply the oil and grease, and anything else needed.

J. C. Hudson's (the superintendent's) salary and expenses were advanced by the Oil Company. He kept a record of all advancements by defendant for supplies on equipment being used by the Construction Company, and the Construction Company would reimburse defendant therefor. The Construction Company's fiscal year ended in April and that Company let its bills accumulate and adjusted its accounts with the Oil Company on the Fairfax job in April, 1948, paying its share of Hudson's salary and expenses as well as other items due the Oil Company.

On August 18, 1947, the officers of the Construction Company were also the officers of the Oil Company; the president, vice-president, and secretary-treasurer, although the same individuals, did not hold the same office in each corporate organization. Each corporation had its offices at 1207 South 4th Street, St. Joseph, Missouri. This suit was filed January 21, 1958. At the time of trial, May, 1949, the officers of the two companies were no longer the same and the two companies were not located at the same address.

Plaintiff was not harmed by error, if any, in defendant's instruction if he did not make a submissible case against defendant.

Defendant did not owe plaintiff the duties a master owes a servant as such relationship did not exist between them. Plaintiff's evidence established, and there was no evidence contra, that the Construction Company held the contract to resurface the streets at Fairfax and defendant was a subcontractor furnishing and spreading the oil used on the streets. The project, while mutually beneficial, was not a joint undertaking with plaintiff a servant of the joint contractors. Plaintiff was a third party to the contract of bailment between defendant and the Construction Company and his right of recovery must be based on some ground other than a breach of that contract. Roddy v. Missouri Pac. Ry. Co., 104 Mo. 234, 245, 15 S.W. 1112, 1114, 12 L.R.A. 746, 24 Am.St.Rep. 333; Glenn v. Hill, 210 Mo 291, 299, 109 S.W. 27, 29, 16 L.R.A.,N.S., 699; Lahtinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102, 107.

Generally, a bailee has the possession, control, and supervision of the thing bailed and is liable for injuries to a third party resulting from his negligent use of the chattel; but a bailor who negligently fails to furnish a chattel reasonably fit and proper for the use intended may be answerable in tort to a third person in instances wherein his own negligence proximately contributes to the damage; for instance, where he furnishes a chattel not reasonably fit for the purpose for which hired. A bailor's tort liability is more restricted than a bailee's. 8 C.J.S., Bailments, Secs. 26, 40, pp. 258, 319; 6 Am.Jur. 413, Bailments, Secs. 312-317; 2 Restatement, Torts, Secs. 388-390; Secs. 405-408, and 1948 Supplement.

The chattel here bailed, the sweeper, was not inherently dangerous. Consult Roddy v. Missouri Pac. Ry. Co., 104 Mo. 234, 246(III), 15 S.W. 1112, 1114(3), 12 L.R.A. 746, 24 Am.St.Rep. 333; Hudson v. Moonier, 8 Cir., 102 F.2d 96, 100.

In L. J. Smith Construction Co. v. Mullins, 198 Mo.App. 501, 201 S.W. 602, 603, defendant rented certain grading machinery 'in the present condition thereof.' The court held: 'As it clearly was the intention of the parties in the...