Haire v. Stagner

• Citation: 356 S.W.2d 305
• Decision Date: 06 April 1962
• Docket Number: No. 7973,7973
• Parties: Donald HAIRE, Plaintiff-Respondent, v. Gilbert STAGNER and Dodds Truck Line, Inc., Defendants-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 305

356 S.W.2d 305

Donald HAIRE, Plaintiff-Respondent, v. Gilbert STAGNER and Dodds Truck Line, Inc., Defendants-Appellants.

No. 7973.

Springfield Court of Appeals, Missouri.

April 6, 1962.

L. Clark McNeill, Salem, for defendants-appellants.

Ford & Ford, Kennett, Dorman L. Steelman, David C. Harrison, Salem, for plaintiff-respondent.

STONE, Judge.

This is an appeal by defendants, Dodds Truck Line, Inc. (hereinafter referred to as Dodds), and Gilbert Stagner, Dodds' driver, from a judgment of $2,250 entered upon a jury verdict in favor of plaintiff, Donald Haire, for personal injuries sustained by him on September 16, 1957, at Steelville, Missouri. Plaintiff, then twenty-seven years of age, who had been 'in the construction business' for eight years, was employed by Huffman Brothers, the general contractor, as superintendent on a construction project to build a new elementary school building in Steelville.

On the day of accident, a tractor-trailer unit owned by Dodds and driven by defendant Stagner came to the site of the construction project with six cartons of building material consigned to the general contractor. Each carton contained four or five large sheets of heavy one-inch paneling, weighed about 450 to 500 pounds, was approximately eight feet in length, four feet in height, and six inches in width, and 'was crated all around, solid crating,' with 1"' X 6"' or 1"' X 8"' boards. These six cartons, the only cargo remaining on the Dodds trailer at the time, were standing on edge (i. e., on their six-inch width), side by side on a raised platform 'in the very front of the trailer.' As the cartons stood lengthwise of the trailer and 'stacked' against one side of it, they occupied about one-third of the width of the trailer bed and were braced in position by 1"' X 4"' boards between the cartons and the opposite side of the trailer.

Defendant Stagner said (and his was the only testimony on this subject) that Dodds' over-the-road trucks, such as the one making this delivery, never carried helpers or special unloading equipment, and that 'the custom up and down the line' was for the consignee to furnish such equipment and men as might be needed for unloading, all of which was, so defendants asserted, in consonance with 'Item No. 40, subparagraph b,' of the 'Interstate Commerce Commission Rules for Midwest Motor Freight Bureau' said to require that the consignor or the consignee, as the case may be, shall furnish needed equipment and men and shall assume responsibility for safe loading and unloading of heavy articles. But, although this rule was offered and received in evidence as a defendants' exhibit, none of the exhibits were included in or filed with the transcript; and furthermore, as plaintiff's counsel appropriately point out, nothing in the record before us would justify a finding that this rule was applicable either generally to Dodds' trucking operation or specifically on the occasion under consideration. Hence, we have considered the case without regard to 'Item No. 40.'

However, defendant Stagner was alone on the truck and obviously could not have moved or unloaded the six heavy cartons without assistance. When Dodds had delivered freight to the same construction project on previous dates, there invariably had been only one man on the truck and, as plaintiff stated, 'if it was too heavy for him we would always have to help him unload it.' Thus, although we find no evidence that Stagner expressly requested help in unloading on the date of accident, it appears to have been taken for granted that plaintiff would assist as, in fact, he forthwith undertook to do. Both plaintiff and Stagner climbed into the trailer and, as each testified, both of them removed the bracing between the upright cartons and the opposite side of the trailer. Then, in plaintiff's words, 'we attempted to slide them (the cartons) out the back end of the truck, just on the bad of the truck, (but) it was more than two of us could do. Someone suggested to bring a dolly . . . which the school had . . . and next we put the dolly under it (a carton) and rolled it to the back of the truck,' where the carton was placed on skids (timbers) laid from the ground to the trailer bed and was moved down. Two workmen on the construction project, Grayson and Gregory by name, who were employees of the general contractor and were directed by plaintiff to help in unloading, remained on the ground at the rear of the truck.

Three of the six cartons were unloaded without incident, before the accident in suit occurred while plaintiff and Stagner were moving the fourth carton. Plaintiff, then on the raised platform behind the fourth carton and facing the rear of the trailer, was pushing on that carton while Stagner, on the other end, was pulling on it. They were moving the carton, in fact already had moved it for a distance of 'about half of the length of the carton,' but the carton was still on the raised platform when, as plaintiff said, 'the remaining two cartons tilted, knocking the fourth one we were pulling on out of my hands and it fell onto my legs . . . I tried to catch it, but it was too much weight for me to hold. I jumped back as far as I could, but I hit the side of the truck.' In his futile attempt to hold the carton upright, plaintiff apparently moved around to the side because, when he went down in 'kind of a sitting position,' his back was against the side of the truck opposite that by which the cartons had been stacked, and he was off the raised platform and on the trailer bed itself. No one offered any explanation as to the cause of this unique accident. Plaintiff agreed that Stagner 'was about six feet away' from the two cartons which tilted, insisted that neither he (plaintiff) nor Stagner had hit those cartons, and admitted that 'I don't know what caused them to fall.' Neither Grayson nor Gregory, both of whom testified, saw the accident, and nothing in Stagner's testimony indicated that he had any knowledge of the cause of accident.

The first two 'points' in defendants'-appellants' brief assert that 'the burden is on plaintiff suing for negligent injury to establish the cause of the accident' and that 'plaintiff had the duty of furnishing necessary equipment for unloading [P.S.C. Rules (Tr. 53)]; therefore, by directing the unloading, he assumed the risk.' In language as explicit and demanding as it is plain and unambiguous, sub-division (a) (3) of Rule 83.05, V.A.M.R., directs that '(t)he points relied on . . . shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous'; and, that there may be no reason or opportunity for misunderstanding on the part of those who make a serious and purposeful effort to follow the rule, sub-division (e) repeats the same direction and adds the blunt and unmistakable warning that '(s)etting out only abstract statements of law without showing how they are related to any action or ruling of the Court is not a compliance with this rule.' As our brethren have pointed out, these provisions 'are clear and simple and easily followed upon a cursory examination' [Onka v. Butkovich, Mo. App., 294 S.W.2d 357, 359] and '(o)bedience . . . calls for no cryptic or unique legal discernment or technique.' White v. Nelson, Mo.App., 283 S.W.2d 926, 928. And, as a multitude of recent cases ¹ demonstrate, the quoted 'points' in instant defendants' brief are utterly insufficient to preserve and present anything for appellate review, and we well might limit our consideration to the last 'point' reflecting a properly-formulated assignment directed to an instruction. But, plaintiff-respondent has made no complaint about defendants'-appellants' brief; and, from the 'argument' therein, we gather that defendants' principal contention is that plaintiff did not make a submissible case, that defendants' motion for a directed verdict at the close of all of the evidence should have been sustained, and that, failing so to do, the trial court should have set aside the judgment for plaintiff and entered judgment for defendants in accordance with their after-trial motion [Rule 72.02, V.A.M.R.; V.A.M.S. Sec. 510.290], erroneously designated as a motion for judgment notwithstanding the verdict. Rule 81.01, V.A.M.R.; V.A.M.S. Sec. 510.380. Being convinced that defendants' contention is meritorious, we have concluded that, in the interest of justice, we should consider and rule it. Clemons v. Becker, Mo., 283 S.W.2d 449, 452.

Plaintiff's petition charged specific negligence in four particulars, but the only negligence submitted in plaintiff's sole verdict-directing instruction was 'that defendants failed to use ordinary care in that they created a dangerous condition in said vehicle by removing said bracing and failed to warn plaintiff to the dangerous condition existing when bracing was removed.' By submitting on the quoted charge of negligence, plaintiff abandoned all others; ² and, in determining the sufficiency of the evidence to make a prima facie case, we must confine ourselves to the sole ground submitted. ³ Plaintiff's submission required, and was predicated upon, a preliminary finding that he 'was in and upon said (tractor-trailer) unit by invitation, either express or implied, of defendants'; and plaintiff's counsel insist that this is 'an analogous case to a business invitee on premises of the owner' and that the legal status of their client at the time of accident was that of 'an invitee.' The case having been submitted, both in the trial court and on appeal, on this theory deliberately adopted by capable counsel, our review must be upon the same theory. Welch v. McNeely, Mo., 269 S.W.2d 871, 875(3), and cases there cited. Accordingly, we employ the legal principles applicable in inviter-business invitee situations in determining whether defendants owed to plaintiff a duty in the only respect submitted (i. e., to warn of the allegedly...