Empiregas, Inc., of Noel v. Hoover Ball & Bearing Co., No. 57494

CourtMissouri Supreme Court
Writing for the CourtSEILER
Citation507 S.W.2d 657
PartiesEMPIREGAS, INC., OF NOEL, Plaintiff-Appellant, v. HOOVER BALL & BEARING COMPANY et al., Defendants-Respondents
Docket NumberNo. 1,No. 57494
Decision Date08 April 1974

Page 657

507 S.W.2d 657
EMPIREGAS, INC., OF NOEL, Plaintiff-Appellant,
v.
HOOVER BALL & BEARING COMPANY et al., Defendants-Respondents.
No. 57494.
Supreme Court of Missouri, Division No. 1.
April 8, 1974.

Page 658

Neale, Newman, Bradshow & Freeman, O. J. Taylor, Joseph A. Bohrer, Springfield, for plaintiff-appellant.

Blackwell, Sanders, Matheny, Weary & Lombardi, Stephen T. Adams, Larry L. McMullen, Kansas City, Missouri for defendant-respondent, Hoover Ball & Bearing Co.

John M. Kilroy, Donald L. Shughart, John R. Caslavka, Kansas City, for defendants-respondents, American Potash & Chemical Corp. and Kerr-McGee Chemical Corp.; Shughart, Thomson & Kilroy, Kansas City, of counsel.

George M. Flanigan, McReynolds, Flanigan & Flanigan, Carthage, for defendant-respondent, Thiokol Chemical Corp.

SEILER, Judge.

This appeal involves the question of whether the petition for damages which is before us, states a claim upon which relief can be granted. The trial court held that the original petition and subsequently a first amended petition did not, and from the court's order of dismissal, the plaintiff has appealed. Jurisdiction is here because of the monetary amount involved, that being sufficient to confer jurisdiction at the time this appeal was taken, so that we retain and decide the case in accordance with the provisions in the schedule to the 1970 amendment to Art. V of the 1945 constitution. We reverse and remand.

The claim grows out of the explosion of a freight train. The petition alleges the corporate existence of plaintiff and that of four foreign corporations. The petition names eight individuals as defendants, who are alleged to have been 'at all times hereinafter mentioned, employees, agents and servants of the Kansas City Southern Railway Company.' 1

The petition then alleges that on August 3, 1969, at or near Noel, Missouri, the aforesaid defendants 'had exclusive control or right of control over the locomotives, trains (including the consist or cars and equipment thereon and therein) track, roadbed, switches, and all other equipment of the Kansas City Southern Railway Company in its yards at Noel, Missouri, and the track and right-of-way to the north and south thereof, the installation and operation of safety devices, communications equipment and maintaining lookouts, and making and enforcing operating and safety rules, and also had exclusive control or the right of control over the management, transportation, dispatching and supervision of said train operations, including inspections of and accepting or rejecting interchange shipments of cars and cargo, and including the packing, inspecting, accepting or rejecting and transporting

Page 659

of volatile explosives, dangerous and combustible materials, and of the make-up and consist of said train . . .'

It is further alleged '. . . (t)hat plaintiff did not have any control or right of control over any of the above-named items, functions, operations, equipment or supplies . . .'

It is next alleged '(t)hat in the Town of Noel, Missouri, on said date, there was a series of sudden and violent explosions of one of the Kansas City Southern Railway Company's freight trains and the parts and components thereof, which occurred while said train was being moved maneuvered and operated under and by defendants active, sole control . . .'

It is next alleged that '. . . said explosions occurred without warning to plaintiff and were unusual, extraordinary, unnecessary and unanticipated by the plaintiff, and its occurrence would not, in the performance of the above functions on the part of defendants, be expected or would happen without the negligence of defendants . . . and the defendants possess knowledge and means of information as to the cause of said explosions superior to that of plaintiff.'

The petition goes on to state that the explosions and resulting damages to plaintiff were a direct result of the negligence of defendants.

The petition concludes by alleging damage to plaintiff's nearby buildings, offices, motor vehicles, storage tanks, etc. to the extent of $100,000 and loss of income and profits of $50,000.

The first amended petition was the same as the original, except for an allegation that the four defendant foreign corporations were subject to the jurisdiction of the court under Secs. 351.633 and 506.500, RSMo 1969, V.A.M.S., for the reason that said defendants committed a tort in the state of Missouri as set forth in the petition and an allegation that approximately fifty percent of the damage occurred on premises not owned by or leased from Kansas City Southern Railway Company. 2

The corporate defendants filed separate but substantially similar motions, contending the petitions failed to state a claim upon which relief could be granted, as well as attacking the court's jurisdiction, venue, process, and service of process. In general, the corporate defendants maintained they were not authorized to and did not do business in Missouri and had no contacts with this state, had no control...

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29 practice notes
  • Wooldridge v. Beech Aircraft Corp., No. 76-CV-0413-W-B-3
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • November 13, 1979
    ...of magazines and merchandise by mass mailing campaign to Missouri residents); Empire Gas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo.1974) (negligence action arising out of defendant's activities in Missouri); State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889 (Mo. en ......
  • Wilson v. Kuenzi, No. 69592
    • United States
    • Missouri Supreme Court
    • April 19, 1988
    ...of the petition, the Court is not concerned with what the evidence may prove. Empiregas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo. banc Plaintiffs Carl and Barbara Wilson are the parents of plaintiff Robert Wilson, born June 23, 1983, afflicted with Down's Syndrome. De......
  • Cameron Mut. Ins. Co. v. Ward, No. KCD
    • United States
    • Court of Appeal of Missouri (US)
    • April 7, 1980
    ...without pleading and proving what particular negligence." In the case of Empiregas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 661(8-10) (Mo.1974), the court said, "Plaintiff's petition is premised on the res ipsa loquitur doctrine. In general, the doctrine of res ipsa loqu......
  • American Drilling Service Co. v. City of Springfield, No. 11889
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1981
    ...The last sentence of present Rule 55.27(a) was inserted into that rule in 1973. See Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 (fn. 4) In the following Missouri cases a motion to dismiss was based on the ground that the petition failed to state a claim upon wh......
  • Request a trial to view additional results
29 cases
  • Wooldridge v. Beech Aircraft Corp., No. 76-CV-0413-W-B-3
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • November 13, 1979
    ...of magazines and merchandise by mass mailing campaign to Missouri residents); Empire Gas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo.1974) (negligence action arising out of defendant's activities in Missouri); State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889 (Mo. en ......
  • Wilson v. Kuenzi, No. 69592
    • United States
    • Missouri Supreme Court
    • April 19, 1988
    ...of the petition, the Court is not concerned with what the evidence may prove. Empiregas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657 (Mo. banc Plaintiffs Carl and Barbara Wilson are the parents of plaintiff Robert Wilson, born June 23, 1983, afflicted with Down's Syndrome. De......
  • Cameron Mut. Ins. Co. v. Ward, No. KCD
    • United States
    • Court of Appeal of Missouri (US)
    • April 7, 1980
    ...without pleading and proving what particular negligence." In the case of Empiregas, Inc., of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 661(8-10) (Mo.1974), the court said, "Plaintiff's petition is premised on the res ipsa loquitur doctrine. In general, the doctrine of res ipsa loqu......
  • American Drilling Service Co. v. City of Springfield, No. 11889
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1981
    ...The last sentence of present Rule 55.27(a) was inserted into that rule in 1973. See Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 (fn. 4) In the following Missouri cases a motion to dismiss was based on the ground that the petition failed to state a claim upon wh......
  • Request a trial to view additional results

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