Bratton v. Sharp Enterprises, Inc.

• Decision Date: 31 May 1977
• Docket Number: No. KCD,INC,BUCYRUS-ERI,KCD
• Citation: 552 S.W.2d 306
• Parties: John Dale BRATTON, a minor, Plaintiff-Respondent, v. SHARP ENTERPRISES, INC., d/b/a Seers Crane Rentals and Seers Company, Defendant-Third-Party Plaintiff-Appellant, and James Lenhart, Densel V. Gordon, Defendants., a corporation, Defendant-Respondent, v. John HAGGARD, Jr., d/b/a Haggard Heavy Hauling, Third-Party Defendant-Respondent. 27703.
• Court: Missouri Court of Appeals

Page 306

552 S.W.2d 306

John Dale BRATTON, a minor, Plaintiff-Respondent, v. SHARP ENTERPRISES, INC., d/b/a Seers Crane Rentals and Seers

Company, Defendant-Third-Party Plaintiff-Appellant,

and

James Lenhart, Densel V. Gordon, Defendants.

BUCYRUS-ERIE, INC., a corporation, Defendant-Respondent, v. John HAGGARD, Jr., d/b/a Haggard Heavy Hauling, Third-Party

Defendant-Respondent.

No. KCD 27703.

Missouri Court of Appeals, Kansas City District.

May 31, 1977.

Robert M. Kroenert, James H. McTurnan, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, for appellant, Sharp Enterprises, Inc.

Karl Shawver, Jr., Paola, Kan., Allan R. Browne, Ennis, Browne, Martin & Tapp, Kansas City, for plaintiff-respondent.

Hollis H. Hanover, Wm. Dirk Vandever, Popham, Popham, Conway, Sweeny & Fremont, P. C., Kansas City, for third-party defendant-respondent.

Before SWOFFORD, P. J., PRITCHARD, C. J., and DIXON, J.

DIXON, Judge.

This is an appeal by defendant of a jury verdict and judgment for $50,000 in favor of plaintiff for the wrongful death of his decedent and defendant likewise appeals the dismissal of its claim for indemnity against the employer of the decedent.

The relationship of the parties is so complex, and so likewise the procedural steps in the trial court, that an overall initial statement is required to bring the proceedings to their present apex in some logical fashion.

The wrongful death of plaintiff's father resulted from a crane accident which occurred during the construction of the Harry S. Truman Sports Complex in Jackson County, Missouri. Specifically, the death occurred when a crane collapsed during an attempt to install a steel sound booth.

The general contractor for construction of the Sports Complex was the joint venture of Sharp-Kidde-Webb (S-K-W), comprised of Sharp Brothers Contracting Company, Del E. Webb Corporation, and Walter Kidde Constructors. Don Sharp was president of Sharp Brothers Contracting Company. S-K-W subcontracted all of the structural, miscellaneous and ornamental iron work to Midstates Ornamental Iron Company, which in turn subcontracted the manufacture of the main bents and catwalks to support the lighting and sound system for the stadiums to St. Joseph Structural Steel Company. St. Joseph then subcontracted its hauling and erection work to John Haggard, d/b/a Haggard Heavy Hauling, the employer of plaintiff's decedent and the third-party defendant.

S-K-W leased cranes for the project on a monthly basis from Sharp Enterprises, Inc., d/b/a Seers Crane Rentals, a defendant herein. John Sharp, the president of Sharp Enterprises, is the son of Don Sharp. Sharp Enterprises obtained its cranes from defendant Bucyrus-Erie, Inc. under a lease-purchase agreement. Bucyrus-Erie manufactured these cranes.

Haggard, having previously lost his ironworker foreman, borrowed a foreman, Duane Mitchell, and two ironworkers from S-K-W for this job. These three men were on S-K-W's payroll. To facilitate the timeliness of this particular job, S-K-W also furnished Haggard with a 110-ton Bucyrus-Erie crane which S-K-W had previously rented from Sharp Enterprises. In accordance with the custom of the crane rental business, an operator and an oiler had been furnished to S-K-W by Sharp Enterprises with the crane. These men were in turn furnished to Haggard by S-K-W. Haggard was to pay S-K-W for the crane plus the wages of the operator, James Lenhart, and the oiler, Densel Gordon. Lenhart and Gordon were on the payroll of Sharp Enterprises.

Plaintiff was awarded death benefits against Haggard, as plaintiff's decedent's employer, by the Department of Labor and Industrial Relations of Missouri, Division of Workmen's Compensation.

Plaintiff brought this action for wrongful death against Sharp Enterprises, Inc., James Lenhart, Densel Gordon and Bucyrus-Erie, Inc. Prior to trial, plaintiff voluntarily dismissed as to Lenhart and Gordon. Count I of plaintiff's amended petition states a cause of action against Sharp Enterprises, Inc. Count II, originally against Bucyrus-Erie, Inc. only, but amended to add Sharp Enterprises, pleads strict liability for defective construction of the crane. Count II of plaintiff's petition was dismissed at the close of plaintiff's direct evidence and defendant Sharp Enterprises' evidence.

Sharp Enterprises impleaded John Haggard as a third-party defendant. Sharp Enterprises also filed a cross claim against defendant Bucyrus-Erie for indemnity (erroneously denominated as a third-party petition), and Bucyrus-Erie cross claimed against Sharp Enterprises for indemnity. As a consequence of the dismissal of Count II of plaintiff's petition, the trial court also dismissed the cross claim of Sharp Enterprises against Bucyrus-Erie. Bucyrus-Erie then voluntarily dismissed its cross claim against Sharp Enterprises. At the close of Sharp Enterprises' evidence, the court also sustained the motion of third-party defendant Haggard for a directed verdict or in the alternative to dismiss the third-party petition. The cause then was submitted to the jury against Sharp Enterprises only, and the plaintiff recovered a verdict. Sharp Enterprises is the only appellant, and it appeals the judgment for plaintiff and the trial court's action as to the Sharp Enterprises' claim for indemnity against Haggard.

Thus, although complex in its early stages, this dispute is now between only three parties, plaintiff, Sharp Enterprises, and Haggard. The principal issues raised on this appeal are (1) the propriety of submitting the case on the theory of res ipsa loquitur, (2) whether the issue of control over the actions of the borrowed servants was properly submitted, and (3) whether the relative negligence of third-party plaintiff Sharp Enterprises and third-party defendant Haggard justified dismissal of the former's third party petition.

The crane accident which resulted in the death of plaintiff's decedent occurred on Monday, July 17, 1972. On Friday, July 14, Haggard began the work on erecting two steel bents and a sound cage for sound equipment at Arrowhead Stadium. The steel bents consist of steel columns which extend vertically along the outer stadium wall and then reach out and over the inside of the stadium at an angle. The sound cage is the steel frame for the loudspeaker system for the stadium. It rests on the steel bents which extend out and into the stadium. The work was to be completed by 8:00 a. m. on Monday so that the sound equipment contractor could commence its work.

The vertical columns were erected on Friday, July 14, and on Saturday, July 15, the two columns reaching out over the stadium were set. The sound cage was also assembled on Saturday. At 6:00 a. m. on Monday, July 17, work was commenced on setting of the sound cage on the steel bents. The sound cage was attached to the crane outside the stadium wall where two men got on it. The load was then raised and swung over the stadium wall and set down just inside the stadium, at the top level of seats. At this time, three other men, including plaintiff's decedent, loaded some equipment on the sound cage and got on themselves. Duane Mitchell, the foreman, was sitting astraddle the top of the stadium wall supervising this work and giving hand signals to the crane operator. Mitchell was a direct employee of S-K-W, but was "borrowed" by Haggard for this specific job. Lenhart was operating the crane, and Gordon was the crane oiler. Both these men were direct employees of Sharp Enterprises, the crane rental company, and were, like Mitchell, "borrowed" by Haggard.

After the men and equipment were added, Mitchell signaled to Lenhart to raise the load and boom out. The boom raised the sound cage up about 70 feet to the top of the bents. Mitchell signaled for Lenhart to stop so that he could ascertain from one of the men on the sound cage how much farther the load needed to go. Lenhart testified that he eased the load to a stop. Suddenly the sound cage with the men on it fell approximately 100 feet, landing among the seats near the football field. A witness who was also riding on the sound cage testified, "(W)e started to swing over, I think, and started to boom down, and all at once, why, everything went just started agoing . . . ." The boom fell with the cage and hit the stadium wall and buckled. Plaintiff's decedent died as a result of injuries sustained in the fall. What has been stated thus far is substantially without conflict in the evidence.

There is no real dispute that the accident occurred because the crane tipped over as a consequence of attempting to "boom" out or extend the radius of the lift beyond the capacity of the crane considering the actual weight of the load. The real dispute centers on the cause of the failure to properly determine the weight of the load. Looking now to the plaintiff's evidence alone, the following testimony was adduced.

Plaintiff's first witness, Delbert Lewis, was an employee of S-K-W who had himself been riding on the sound cage when it fell. He testified that the men were on the sound cage in order to connect it to the steel bents. No other access to the steel bents was available. On cross examination by Sharp Enterprises, the witness testified as to the equipment and men placed on the sound cage, adding weight estimated to be in excess of 1,200 pounds. On cross examination by third-party defendant Haggard the witness testified that prior to the lift his visual estimation of the weight of the sound cage was six tons.

Plaintiff next called Duane Mitchell, the foreman borrowed by Haggard from S-K-W. He testified that on Saturday, when the first steel bent was being lifted, Haggard noticed some vibration in the crane's outrigger pads and the witness and Haggard decided to add some extra weight to the crane for stability. A fork-lift truck was tied to the front of the crane and no vibration occurred during the lift of the second bent. This witness also testified as to the accident itself,...