Brison v. O'Brien
| Decision Date | 07 December 1982 |
| Docket Number | No. 44473,44473 |
| Citation | 645 S.W.2d 142 |
| Parties | Willie BRISON, Plaintiff-Appellant, v. Eugene O'BRIEN, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Shaw, Howlett & Schwartz, Clayton, for plaintiff-appellant.
Benson Cytron, House Springs, for defendant-respondent.
Plaintiff sued to recover for loss of income and property damage to his construction equipment, alleging that defendant's employee left a tractor running after using it, thereby causing extensive engine damage. At the close of plaintiff's case, defendant moved for a directed verdict. The trial court granted the motion and entered a judgment for the defendant, from which the plaintiff appeals. We affirm.
Upon review, we must "consider all of the evidence in the light most favorable to the plaintiff ... accord to plaintiff the benefit of all favorable inferences deducible from the evidence, [and] reject all unfavorable inferences...." Barnett v. M & G Gas Co., 611 S.W.2d 370, 371 (Mo.App.1981). At the same time, we must keep in mind that it is the plaintiff's burden to establish that the negligence of defendant proximately resulted in damage to him. Lange v. Marshall, 622 S.W.2d 237, 238 (Mo.App.1981). The plaintiff must present substantial evidence to support his claim; "a mere scintilla of evidence is not sufficient." Kaelin v. Nuelle, 537 S.W.2d 226, 230 (Mo.App.1976).
The facts are as follows: In the fall of 1977, the Crest Machine Shop contracted separately with Willie Brison (plaintiff) and Eugene O'Brien (defendant) to put up a new building. Plaintiff was hired to haul gravel; defendant was to provide the labor and materials needed for the concrete walls. Plaintiff worked alone; defendant had a crew of several employees at the jobsite. The plaintiff used several pieces of heavy equipment in his work including an "International TD-9, 92 Series Track High-Lift" (the "TD-9"). On or about November 8, 1977, plaintiff used the TD-9 to spread gravel and then parked it within the walls of the new building before he left the jobsite. On the following day, when plaintiff was not at the jobsite, one of defendant's employees asked an employee of the Crest Machine Shop if they could use the TD-9. The employee relayed this request to an owner of the machine shop. She replied that she could not give permission, but would try to contact the plaintiff. A second request to use the TD-9 was made after the lunch hour. The machine shop owners tried to contact the plaintiff but were unable to do so. Later that afternoon, several employees of the machine shop observed that the TD-9 was being operated by a man wearing a blue fishing hat. (The TD-9 has a push-button starter and can be operated without a key.) They had previously seen this man working and eating lunch with defendant's work crew, and driving a pickup truck with defendant's name on it. He operated the TD-9 for fifteen to thirty minutes, and left it standing under a tree with the motor still running. Several of the machine shop's employees testified that when they left work between 4:10 and 4:30 p.m., the TD-9 was still parked and idling where the man in the blue fishing hat had left it. They estimated that it had been idling for thirty minutes to an hour before they left.
The plaintiff returned to the jobsite that evening. He could not remember what time it was when he returned. The TD-9 was again parked within the walls of the new building, but in a different location from where plaintiff had left it. It was covered with black oil and was hot to the touch. Some of defendant's employees were still at the jobsite and the plaintiff asked them who had been using the TD-9. He received no response. The next morning plaintiff found that there was no oil in the machine's crankcase. He started the engine but it was knocking so badly that he took it for repairs to Brautigam's Implement Company.
Leonard Brautigam, owner of the repair shop, testified that he had performed a complete overhaul of the TD-9's engine, described the extent of his repairs, and testified as follows on the issue of causation:
Q. Now, with regard to the damage that you found on the Harvester 92 Series track high lift, do you have an opinion as to what caused the damage?
A. Well, it can be a multitude of things, because we wasn't at the site.
Q. Uh-huh.
A. It could be low oil pressure. It could have been somebody antifreezed it. It could be a lot of things.
Q. Okay.
A. Antifreeze will do the same thing as low oil pressure to a set of bearings.
Q. Well, low oil pressure could have been the cause, in your opinion, of-- A. It could have.
Q. What does the effect of a slow idle have on the oil pressure, the oil in the engine?
A. What effect does it have?
Q. Yes.
A. Well, on a regular engine, probably, not too much, but one with a turbocharger, you should run them a little faster to keep your turbocharger lubricated.
* * *
* * *
Q. Do you have any estimate as to how long a period of time that might be until [running the engine at idle] started causing some damage?
A. No. I don't.
Q. Would a half hour be long enough?
A. That's hard to say. It depends on the turbocharger. I mean, if the turbocharger is wore--Now, if it's a brand new one, it fits a lot tighter. It's going to take more oil to lubricate it and more pressure. If it's wore, it might stand it a lot longer than a new one will.
Q. How about this particular turbocharger that you worked on?
A. I don't know how long it was on there.
Q. There's no way you can tell that?
A. No, sir.
Brautigam also stated that some of the damage could have resulted from poor maintenance or ordinary wear. The tractor had been in his shop for repairs on several other occasions both before and after this incident.
At the close of plaintiff's evidence, the defendant moved for a directed verdict. Argument on the motion was held in chambers and recorded. In granting the motion, the trial court expressed its view that the plaintiff's evidence would not support a reasonable inference (1) that the man in the blue fishing hat was an employee of defendant or (2) that the engine was left idling long enough to cause the damage complained of. We think that the issue of agency could have gone to the jury, but that the trial judge properly directed a verdict because the plaintiff's evidence could not support a finding of proximate cause.
The employer-employee relationship may be established by circumstantial as well as direct evidence. Smoot v. Marks, 564 S.W.2d 231, 236 (Mo.App.1978). The plaintiff presented evidence that the man in the blue fishing hat worked and ate with the rest of defendant's crew. Employment could have reasonably been inferred from these facts, even if the alleged employee was not identified by name. Bommer v. Stedelin, 237 S.W.2d 225, 229 (Mo.App.1951). Three witnesses gave consistent and uncontradicted testimony about the role of the...
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...evidence connecting the defendant's conduct to the resulting injury "amounts to mere conjecture and speculation...." Brison v. O'Brien, 645 S.W.2d 142, 145 (Mo.App.1982). The evidence must show that in the absence of the negligence alleged, the injury would not have occurred. Id. at 146. Th......
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