Dulley v. Berkley

• Decision Date: 08 July 1957
• Docket Number: No. 1,No. 45689,45689,1
• Citation: 304 S.W.2d 878
• Parties: Mrs. Stone DULLEY, Appellant, v. Hugh BERKLEY, d/b/a Berkley Plumbing & Heating, and Richard R. Wilson, d/b/a Wilson Excavating Company, Respondents
• Court: Missouri Supreme Court

Page 878

304 S.W.2d 878

Mrs. Stone DULLEY, Appellant, v. Hugh BERKLEY, d/b/a Berkley Plumbing & Heating, and Richard

R. Wilson, d/b/a Wilson Excavating Company, Respondents.

No. 45689.

Supreme Court of Missouri, Division No. 1.

July 8, 1957.

Opinion Modified on Court's Own Motion Sept. 9, 1957.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 9, 1957.

Fred J. Freel, John R. Baty, Kansas City, for appellant.

Harold L. Holliday, Kansas City, and Douglas Stripp, Melvin J. Spencer, Kansas City, Watson, Ess, Marshall & Enggas, Kansas City, of counsel, for respondent Hugh Berkley.

Clyde J. Linde, Robert B. Langworthy, Billy S. Sparks, Kansas City, Langworthy, Matz & Linde, Kansas City, of counsel, for respondent Richard R. Wilson.

HOLMAN, Commissioner.

Action by plaintiff, Mrs. Stone Dulley, to recover damages in the sum of $15,000 for the death of her husband, Stone Dulley, which occurred in Kansas City, Missouri, on December 16, 1953. Mr. Dulley was killed while working in a ditch that was being excavated for the purpose of laying a sewer line. Originally, the defendants were Oscar Scott and wife, the owners of the property involved, Hugh Berkley, a plumber, and Richard R. Wilson who had furnished a machine and operating employees to excavate the ditch. Before trial the Scotts settled with plaintiff for $1,800 and the suit was dismissed as to them. The cause was thereafter tried and resulted in a verdict in favor of the remaining defendants. From the ensuing judgment plaintiff had duly appealed. We have appellate jurisdiction since the amount in dispute is $13,200.

Upon this appeal plaintiff contends that each of the seven instructions given at the request of defendants was prejudicially erroneous. However, before considering the matter of alleged trial errors, we will consider the contention of each defendant that plaintiff did not make a submissible case as to him. In determining those issues we will view the evidence in the light most favorable to plaintiff.

At the time in question Scott was in the process of constructing two houses on land which was located near his grocery store at 34th and Hardesty in Kansas City, Missouri. He desired to run a sewer line in a northwesterly direction from a manhole in the center of Hardesty Street to the curb, thence north along the parking to a point, and thence west to the houses. The three steps involved in laying a line of that kind are, (1) excavation of the trench, (2) grading and leveling the bottom of the trench, and (3) the actual laying (cementing together) of the sections of pipe. Scott contacted defendant Berkley and discussed the matter of contracting with him to do the entire job. He thought the price was too high, however, and finally agreed to pay Berkley $50 for his labor in laying the pipe. Berkley also told Scott that Wilson would furnish a machine and two operators to do the excavating for $12.50 an hour, and Scott asked him to arrange with Wilson to furnish the machine for that work. He also requested that Berkley obtain laborers to grade and level the bottom of the trench.

Hugh Berkley testified that since an excavation permit would only be issued to a master plumber, he assumed that he would have to obtain the permit and did so. He also arranged with Wilson to send the excavating machine and spoke to Stone Dulley and John Bass about grading the trench. On the afternoon the machine was to start work Berkley picked up Dulley and Bass and drove them to the site of the project.

Stone Dulley had had at least 25 or 30 years' experience in ditch digging and excavation work. Bass had done plumbing work for three years, but had never worked in a ditch as deep as the one which was dug on the Scott job.

When the machine arrived, Scott helped the men locate the manhole and suggested that they start digging at the manhole rather than at the other end of the proposed line. He also pointed out to the machine operators the course he desired that the proposed line follow. Wilson's employees then started the operation of the machine and the actual digging of the trench. It was to be two feet wide and was ten feet deep at the manhole. The excavated dirt was piled on the west side of the ditch and there was evidence that it was deposited 'right at the edge' of the trench. The claw of the machine had difficulty in penetrating the surface of the street and jarred the ground considerably in the excavation process. When the machine had dug a trench 25 or 30 feet long, Dulley got into it and started working around the manhole. A few minutes thereafter he called to Bass to get into the ditch and help him. Upon getting into the ditch Bass asked Dulley if he thought there was any danger of the ditch caving in and the latter answered, 'No, he didn't think so.' At that time Dulley was removing dirt from around the manhole and shoveling it to Bass who was shoveling the same dirt to a point farther north in the trench.

After Mr. Bass had been in the ditch a few minutes (working about ten feet from the manhole) a portion of the west wall of the ditch caved in and trapped him 'up around the knees' so that he could not extricate himself. The machine was immediately shut down and Berkley, Scott, and Wilson's two men all got into the trench to help Dulley free Bass. There was some evidence that another cave-in occurred shortly thereafter in the area around Mr. Bass. At any rate, after the rescue efforts had been in progress for a time, a large 'chunk' of dirt caved in from the west wall of the trench which trapped and injured Mr. Dulley. The fire department was then called and its members were able to bring the two men out of the excavation, but Mr. Dulley was found to be dead.

Plaintiff presented two witnesses who qualified as experts in regard to the dangers incident to making excavations of this type and the generally accepted practices used for the safety of the workmen on such projects. Each expressed the opinion, in substance, that no ditch (except through solid rock) over four or five feet deep is safe to work in unless it is either 'shored' or 'side-sloped.' 'Shoring' may be described generally as placing a wall of boards along each vertical side of the ditch and holding these walls apart by jacks or 4X4's. As the words indicate, to 'side-slope' a ditch is to dig the sides V-shaped at a sufficient angle (usually 45 degrees) that they will not cave in. The instant ditch was neither shored nor side-sloped.

The expert witnesses also testified that the excavated dirt should not be placed closer than two feet from the edge of the ditch; that the closer the dirt is piled to the edge of the ditch the more pressure there is on the sides of the ditch, which pressure sometimes causes the side of the ditch to cave in either at or below the surface, and that vibration from a machine such as the one used by Wilson would likely cause the sides to cave in.

We have concluded that plaintiff failed to make a submissible case against defendant Berkley. It seems undisputed that Berkley's sole responsibility on this project was to lay the pipe. Before he could lay the pipe someone had to (1) obtain an excavation permit, (2) dig the trench, and (3) grade or level the bottom of the trench. It is true that Mr. Berkley cooperated with Mr. Scott in obtaining the permit, in arranging for Wilson to do the excavating, and for Bass and Dulley to do the grading. There is no evidence, however, that these men were employed by Berkley or that he had any right to control the manner in which they did their work. Plaintiff did not actually contend otherwise, as her attorney, in his argument to the jury, stated, 'As far as Mr. Berkley is concerned, this is the only thing that ties him to the excavation, that is that he--all he did was to get a permit and that he wasn't actually making the excavation.'

The foregoing excerpt from the argument of plaintiff's attorney would seem to indicate the view that the mere fact that Berkley obtained the excavation permit would impose liability upon him with respect to the acts or omissions of everyone connected with the project. That view is perhaps based upon the fact that the permit (in accordance with appropriate ordinances) provided that it was not transferable and contained the following: 'In accepting this Excavation Permit I, the below-named applicant, hereby agree to take all reasonable precautions to prevent accident or injuries to persons or property * * *.'

It should be noted that we are not here concerned with any controversy between Berkley and the City of Kansas City, Missouri, or between him and a private individual who sustained injuries while using the street. It would appear that the instant ordinance was enacted for the purpose of aiding and protecting the city in discharging its duty to the public to keep the streets reasonably safe for use and travel. We see nothing in the permit or the related ordinance which would impose a duty upon Berkley to provide Scott's workmen on the project with a reasonably safe place to work, or which would make Berkley responsible for the acts or omissions of any other person connected with the project, it being noted that he had no agents or employees assisting him at the time. Hunt v. City of St. Louis, 278 Mo. 213, 211, S.W 673; Central Surety & Insurance Corp. v. Hinton, 233 Mo.App. 1218, 130 S.W.2d 235.

Our view, as indicated, is that plaintiff failed to make a submissible case against defendant Hugh Berkley and hence the judgment in favor of that defendant should be affirmed and we need not consider any trial errors which relate solely to...