E. O. Dorsch Elec. Co. v. Knickerbocker Const. Co., 52479

Decision Date11 September 1967
Docket NumberNo. 1,No. 52479,52479,1
Citation417 S.W.2d 936
PartiesE. O. DORSCH ELECTRIC CO., a Corporation, Plaintiff-Appellant, v. KNICKERBOCKER CONSTRUCTION COMPANY, Inc., a Corporation, Defendant-Respondent
CourtMissouri Supreme Court

Cox, Cox, Cox & Moffitt, Cox & Moffitt, William A. Moffitt, Jr., Robert C. Brinkman, St. Louis, for plaintiff-appellant.

Carter, Fitzsimmons & Brinker, Lee M. Carter, Clayton, for defendant-respondent.

WELBORN, Commissioner.

This is an action by an electrical subcontractor on a building project against another subcontractor on the project for $21,938.39 damages for negligent damage to the work done and material installed by the electrical subcontractor. The trial court ordered summary judgment in favor of the defendant. The plaintiff appeals.

The dispute here arises out of work on 'The St. Louis Plaza Project' located in St. Louis, Missouri. Involved in part are the same contracts which were considered by Division Number Two of this court in the case of E. O. Dorsch Electric Co. v. Plaza Construction Co., Inc., et al., Mo., 413 S.W.2d 167, decided April 10, 1967, shortly before the submission of the present case. In the earlier case, plaintiff's action was against the general contractor and its agents.

In this case, plaintiff's petition alleged that it had installed electrical work on the project, pursuant to a contract with the general contractor; that defendant was a subcontractor for concrete work on the project; that, in the performance of its contract, defendant's agents and employees 'negligently and carelessly did damage and destroy certain parts of the electrical work and material which had been previously installed in said buildings by plaintiff, causing said work and material to be unfit for use, which required plaintiff to and it did replace the same, all to the damage of plaintiff in the sum of $21,938.39.'

The defendant filed a motion for summary judgment, as did the defendants in the Plaza Construction Co., Inc. case, and, as in the other case, the trial court sustained the motion. In this case, the defendant's motion referred to the motion for summary judgment in the Plaza case, in which the plaintiff had acknowledged that the work was done under contracts there produced. The motion in this case alleged:

'* * * In connection with a motion for summary judgment filed by the defendants in Cause No. 39458, plaintiff has admitted certain contracts marked as Exhibits A, B, C and D, each of which contracts contains the following provision:

"The title of all materials for which Owner is required to pay and of all work either completed or in the course of construction shall be in Owner. Title of all equipment not purchased by Contractor or Owner shall be in the Agents or in the renter in the case of rented equipment.'

'3. Defendant further states that Article 5 of each of said contracts contains the following provision:

"The Contractor understands that the work herein provided to be done is to be financed by a Building Loan secured by a mortgage to be insured by the Federal Housing Commissioner, the terms of which are set forth in a Building Loan Agreement between the Owner as Borrower and Manufacturers Trust Company as Lender.'

'4. Article 4 of each of said contracts provides in part as follows:

"Applications for payments under this Contract are to be made by the Contractor to the Owner, approved by the architect, in quadruplicate on FHA Form No. 2448, on or about the first day of each month after the commencement of work hereunder, for payment for work done during the preceding month or part thereof.'

'5. Defendant further states that the mortgages to which reference is made above cover among other things the following items: 'all building materials and equipment now hereafter delivered to said premises and intended to be installed therein' and 'all buildings and improvements of every kind and description now or hereafter erected or placed thereon, and all fixtures, including but not limited to all gas and electric fixtures * * *'

'6. Defendant further states that if there was any damage or destruction to the 'electrical work and material' after installation, as alleged by plaintiff, plaintiff had no right or title to or interest in the said work and material at the time of the damage or destruction, if any, but the title to the work and material had previously passed to the owners of the property and had previously been subjected to the mortgages on the property.'

The appellant...

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11 cases
  • Rigby Corp. v. Boatmen's Bank and Trust Co.
    • United States
    • Missouri Court of Appeals
    • June 24, 1986
    ... ... E.O. Dorsch Electric Co. v. Knickerbocker Construction Co., 417 S.W.2d ... ...
  • Pagan v. City of Kennett
    • United States
    • Missouri Court of Appeals
    • April 2, 1968
    ...is no genuine issue of a material fact and that the movant is entitled to judgment as a matter of law (E. O. Dorsch Elec. Co. v. Knickerbocker Const. Co., Mo., 417 S.W.2d 936, 939; Stoffel v. Mayfair-Lennox Hotels, Inc., Mo.App., 387 S.W.2d 188, 190(2)); "(a) genuine issue of fact exists fo......
  • Pitman Mfg. Co. v. Centropolis Transfer Co.
    • United States
    • Missouri Supreme Court
    • December 14, 1970
    ...admissions on file, together with the affidavits, show that there is no genuine issue of material fact. E. O. Dorsch Elec. Co. v. Knickerbocker Const. Co., Mo.Sup., 417 S.W.2d 936, 939. The vital evidential fact upon which the right to summary judgment in this case depends is whether the in......
  • Citizens State Bank of Nevada v. Wales
    • United States
    • Missouri Court of Appeals
    • July 13, 1971
    ...388 S.W.2d 495, 500(4).7 Rule 74.04(c); Stanturf v. Sipes, Mo., 447 S.W.2d 558, 560, 35 A.L.R.3d 834; E. O. Dorsch Elec. Co. v. Knickerbocker Const. Co., Mo., 417 S.W.2d 936, 939; Stoffel v. Mayfair-Lennox Hotels, Inc., Mo.App., 387 S.W.2d 188, 190(2).8 Pitman Mfg. Co. v. Centropolis Transf......
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