Cover v. Phillips Pipe Line Co.

• Decision Date: 08 June 1970
• Docket Number: No. 54907,No. 1,54907,1
• Citation: 454 S.W.2d 507
• Parties: John S. COVER, d/b/a Cover Construction Company, Appellant, v. PHILLIPS PIPE LINE COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 507

454 S.W.2d 507

John S. COVER, d/b/a Cover Construction Company, Appellant, v. PHILLIPS PIPE LINE COMPANY, a Corporation, Respondent.

No. 54907.

Supreme Court of Missouri, Division No. 1.

June 8, 1970.

Joseph H. Mueller, J. C. Jaeckel, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.

Coburn, Croft, John & Herzog, Alan C. Kohn, Charles G. Siebert, St. Louis, for respondent; Wm. J. Zeman, Lloyd G. Minter, Stanley L. Cunningham, Bartlesville, Okl., of counsel.

HOUSER, Commissioner.

John S. Cover, d/b/a Cover Construction Company, hereinafter 'Contractor,' sued Phillips Pipe Line Company, hereinafter 'pipeline,' for $24,000 damages for partial destruction of a Caterpillar tractor by fire following rupture of defendant's pipeline while contractor was engaged in terracing work on a farm in Pettis County. Pipeline counterclaimed for $27,609 damages to the line and for loss of revenue resulting from the rupture. A jury returned a verdict against contractor on his petition and against pipeline on its counterclaim. Contractor filed a motion for new trial which was overruled. Pipeline filed a motion for judgment on its counterclaim on the issue of liability in accordance with its motion for a directed verdict at the close of the case, which was sustained. The court also sustained pipeline's motion for new trial on the issue of damages only. In the alternative the court sustained pipeline's motion for new trial on six specified grounds. Contractor appealed from all orders.

Contractor charged in his petition and submitted to the jury that pipeline negligently failed to provide adequate warnings of the location of the pipeline. Pipeline answered by way of a general denial and pleaded, inter alia, contributory negligence in that contractor's employees knew or in the exercise of due care should have known of the existence and location of the pipeline but negligently failed to exercise reasonable care to avoid running into the pipeline. This defense was submitted to the jury by Instruction No. 4--A as follows:

'Your verdict must be for defendant on plaintiff's claim for damages, whether or not defendant was negligent, if you believe:

First, (a) Plaintiff knew, or by using ordinary care should have known, of the existence of defendant's pipe line at the place where plaintiff's employee Kenneth Austin was operating the bulldozer, and plaintiff failed to warn his employee Kenneth Austin of the existence of the pipe line, or (b) Plaintiff, acting by and through his employee Kenneth Austin, knew, or by using ordinary care should have known, of the existence of defendant's pipe line and failed to avoid striking and rupturing the pipe line, and

Second, plaintiff's conduct, in any one or more of the respects submitted paragraph first, was negligent, and,

Third, such negligence of plaintiff directly caused or directly contributed to cause any damage plaintiff may have sustained.'

Contractor's first point is error in giving Instruction No. 4--A because not supported by evidence that contractor knew or should have known of the existence of the pipeline on the farm in question at the place where contractor's employee was operating the bulldozer. There was evidence on this issue as follows: The pipeline runs parallel to and 150 feet south of the county road. The existence and location of the pipeline is marked by fence posts in cross fences painted with two stripes of paint, one orange and the other yellow. The marked fence posts can be seen from the road. In 12 miles of pipeline there are 132 painted fence posts observable from the road. In that 12 miles there are 12 signs showing the existence of the pipeline. There were two painted fence posts on the west line of the field in which the rupture occurred located approximately 400 feet from that place. The paint on those posts could be seen from that place. They could also be seen from the road at the point where the bulldozer entered the field. The colors were 'clearly visible.' Contractor's bulldozer operator Austin knew that painted fence posts indicated the presence of a pipeline. He was familiar with this county road. He had been up and down the road many times, 'Maybe a dozen times.' He had done work on the same farm a year before this accident occurred. In his deposition he testified that on that occasion the work consisted of ripping out a fence row possibly 300--400 feet east of the place where the pipeline was ruptured. Harold Smith, construction and maintenance superintendent of the pipeline, went to the scene of the accident shortly after it occurred. There he had a conversation with Austin. After Smith expressed his regret that pipeline had not been notified of contractor's intention to do the terracing, and had stated that pipeline could have marked the pipelines, Austin remarked, 'I should have known, I was on this property a few months ago, I knew the pipelines were in this area, but I don't know why I didn't think of it.' John Cover's deposition testimony, read to the jury, indicated that he knew that Austin was going out on that farm to do this work; that from time to time and in different locations prior to the date in question Cover had observed painted fence posts which to him indicated the existence of a pipeline; that there were painted fence posts at the west line; that while you have to get fairly close to them before you can distinguish them, he had observed them prior to November, 1965. (Cover retracted this deposition testimony at the trial but it bears on the evidentiary support for the giving of the instruction.) The foregoing is sufficient evidence of record to support the giving of the instruction and to authorize the jury to find that both contractor and his operator knew or should have known of the existence of the pipeline.

Contractor's second point is that Instruction No. 4--A is not in MAI. Where as here no applicable MAI instruction is provided the parties are required to give an instruction which is simple, brief, impartial, free from argument and which does not submit to the jury or require findings of detailed evidentiary facts. Civil Rule 70.01(e), V.A.M.R. Instruction No. 4--A conforms to this requirement.

Contractor says that Instruction No. 4--A does not comport with the purpose of MAI in that it does not require the finding of any essential facts or provide any standard by which to measure either contractor's conduct or that of his employee, and constitutes a roving commission. The essential facts on the contributory negligence issue were whether contractor's employee knew or in the exercise of ordinary care should have known of the existence and location of the pipeline and negligently failed to exercise reasonable care to avoid running into it. The instruction required the jury to find these facts, or in the alternative to find that contractor himself had this knowledge, actual or constructive, and failed to warn his employee. There was evidence to support both alternatives. The instruction requires a finding of conduct that is 'negligent' and the measuring stick by which negligence is to be gauged is laid down in Instruction No. 2 which defines negligence. There is no 'roving commission' violation.

Next, contractor urges that the instruction makes two untenable assumptions: (1) that the painting of the fence posts was sufficient notice of the presence and location of the pipelines, whereas the closest fence posts were 400 feet west of the point of rupture, and (2) that the paint on those posts was plainly visible from that distance, whereas plaintiff's evidence shows that 'after you got right up close to it you could see it, the color was faded out. You have to get fairly close to them before you can distinguish them,' supported by pipeline's evidence that the fence posts are repainted only every 2 or 3 years and that the paint on the two fence posts at the west line of the property was sun-faded. Contractor argues that pipeline witness Smith's testimony that the paint on the two posts had been faded by the sun leads to the inescapable conclusion that the paint did not impart sufficient and adequate notice and warning to the public, and particularly to contractor and his employee. This argument goes to the weight of the evidence, which was a matter for assessment by the jury. Instruction No. 4--A submits the question of the sufficiency and adequacy of notice without any assumption of facts and, as demonstrated above, there is an evidentiary basis for a finding that either contractor or his employee or both of them had actual or constructive notice of the existence and location of the pipeline.

Finally, it is said that the instruction is a felo de se. This point is disallowed. The alternatives are not inconsistent. The theory and proof of one does not negate, repudiate or disprove the other. The two acts of negligence could coexist and either could exist independently of the other.

The next question is whether the court erred in denying contractor's motion for a directed verdict on pipeline's counterclaim. A cognate question is contractor's fourth point, that the court erred in sustaining pipeline's after-trial motion for judgment on the issue of liability on the ground that contractor is liable as a matter of law on the theory of trespass. Our conclusion is that the court made no mistake in denying contractor's motion but that the court erred in sustaining pipeline's motion.

Pipeline's counterclaim was in two counts. Court I was framed on the theory of trespass; County II sounded in negligence. Count I alleged that pipeline had an easement and that contractor's earthmoving machine obstructed, intermeddled and interfered with its easement by piercing the pipeline to its damage. Count I sought to impose absolute liability upon contractor if in operating his machine the pipeline was pierced, regardless of contractor's knowledge or that of his operator and regardless of the care exercised. Citi...