Helton v. Hake

• Decision Date: 27 February 1978
• Docket Number: Nos. KCD,s. KCD
• Citation: 564 S.W.2d 313
• Parties: 98 L.R.R.M. (BNA) 2905, 85 Lab.Cas. P 55,151 Shirley HELTON et al., Respondents, v. Ben HAKE et al., Appellants. 28896, KCD 28897.
• Court: Missouri Court of Appeals

Page 313

564 S.W.2d 313

98 L.R.R.M. (BNA) 2905, 85 Lab.Cas. P 55,151

Shirley HELTON et al., Respondents, v. Ben HAKE et al., Appellants.

Nos. KCD 28896, KCD 28897.

Missouri Court of Appeals, Kansas City District.

Feb. 27, 1978.

Motion for Rehearing and/or Transfer Denied April 3, 1978.

Application to Transfer Denied May 9, 1978.

Barry J. Levine, Lewis E. Mallott, St. Louis, for appellants.

Henry P. Andrae, Jefferson City, for respondents.

Before SHANGLER, P. J., WASSERSTROM, J., and MASON, Special Judge.

WASSERSTROM, Judge.

Suit for wrongful death of Norman Helton brought by his widow and children against International Association of Bridge, Structural and Ornamental Iron Workers, A.F. of L.-C.I.O., Local No. 396 and the Union steward Ben Hake. From a judgment on a jury verdict for plaintiffs, both sides appeal. We affirm.

On September 11, 1973, Helton was working as an iron worker for Maggi Construction Company in the construction of a metal building in Salem, Missouri. A high tension power line ran along side the building under construction and came within 71/2 feet of the point where Helton was working.

The work in progress at the time of Helton's death consisted of the attachment of angle irons to the building. The angle irons were about 20 feet long and were raised hand over hand for positioning onto a channel girder. Helton was working directly with Perry McCormack bolting up the angle iron to the girders. No one actually witnessed how Helton came to fall from the building, but a loud crack of electricity was heard, and immediately thereafter Helton was seen falling in the air from the place where he had been working. Apparently an angle iron which he was handling came into contact with the power line, causing his electrocution. He was taken to a hospital, but never regained consciousness. His death was diagnosed by the attending doctors as cardiac arrest caused by electric shock.

Mrs. Helton testified that Helton had told her the morning of his death that he had asked for the power in the high tension line to be turned off and that he was going to ask again. A co-worker further testified that preceding the accident Helton talked about the power line being close to the place of work and that the line should be covered; this statement took place in the presence and hearing of a number of the crew, of whom Hake was one and of whom the foreman Loethen was another.

At the time of the fatal accident, the Union had a collective bargaining agreement in effect which had been signed on behalf of Associated General Contractors of St. Louis, Erectors and Riggers Association, and Site Improvement Association. Article 7 of that Agreement is entitled "Working Rules" and contains as a sub-part "Safety Provisions." Part of that subdivision provides:

"Section 7.28 Power Lines, High Tension : There shall be no work done in the immediate area of high tension lines until the power has been shut off, or the lines insulated, or the safety of the members of bargaining unit otherwise provided for."

Section 7.20 of that same article provides that the Union steward "shall see that the provisions of these working rules are complied with and report to the Union the true conditions and facts. He shall report the injury of any employees to the proper officers of the Union." This same section goes on to provide "that the Employer is in no way responsible for the performance of these functions by the steward."

Plaintiffs premise their law suit on the theory that the provisions of the collective bargaining agreement quoted created a duty on the Union steward Hake and through him upon the Union to safeguard the employees, including Helton, from the power line adjacent to the work place and that their failure to perform that duty constituted a tort for which recovery can be had under the wrongful death statute. The verdict directing instructions adopted that theory and instructed the jury to find for the plaintiff if (among other things) Maggi and the Union were operating under the terms and conditions of the collective bargaining agreement, if Hake had a duty to enforce and failed to enforce the provision of Section 7.28 of the contract, and if Hake was thereby negligent. The trial court, although requested to do so by plaintiffs, refused to submit to the jury any issue relating to assessment of punitive damages against defendants in connection with damage to Helton's gloves and boots.

For their points on appeal, defendants assert: 1) that there was no proof that there was any agreement in force with respect to the Maggi construction project; 2) that the Union's obligation was limited to that of "fair representation" and that it was not liable to Helton nor is it liable to his survivors for mere negligence; 3) that Helton was guilty of contributory negligence; 4) that plaintiffs did not comply with the requirements for a class action as provided by statute and court rule; and 5) that the trial court improperly limited the testimony of Hake. Plaintiffs for their part assign as error the refusal of the trial court to submit the issue of punitive damages.

I.

Under the court's instructions, in order to find for plaintiffs, the jury had to find that Maggi and the Union were operating under the terms and conditions of the agreement in evidence and which has been quoted above. That agreement by its terms was entered into with the Union on behalf of three employer associations. According to the evidence, Maggi was not a member of any of those three associations nor had it signed individually, nor was there any evidence that it had expressly agreed to be bound by that contract. Because of this state of proof, defendants insist that plaintiffs failed to prove an essential element of their case and a verdict should have been directed for defendants.

There was however substantial evidence from which it could be reasonably inferred that Maggi and the Union had agreed at least by implication to operate under the terms of the collective bargaining agreement. Thus the evidence shows that the Maggi foreman employed all of the workmen on this job, including Helton, through the Union field steward, Leon Henderson. The testimony was that Maggi could not hire any workmen "without the union's O.K."

Still further, the Union did appoint Hake steward on the job in compliance with the provisions of Section 7.20 of the contract. Hake in his testimony acknowledged that as steward he had the job of enforcing the working rules as set forth in the contract. Hake answered affirmatively to the proposition that these provisions constituted "the working rules by which you ply your trade" and that the contract was his "Bible." Worthy of special note is the fact that in recognition of his duties under the contract, Hake filed a Steward's Weekly Report, reporting on the accident which had resulted in Helton's death, showing that five workmen, all members of the Union in good standing, were on the job and that Helton had suffered death from electrocution on September 11, 1973.

Moreover and conclusive against defendants on this point, they have pleaded and affirmatively relied upon as a defense a collective bargaining contract covering the Maggi job. Thus the second affirmative defense of their answer alleges that "(d)efendant Iron Workers Local 396 is limited by the provisions of the collective bargaining agreement, referred to in Plaintiffs' Petition * * * ," and their third affirmative defense alleges that "(d)efendant Iron Workers Local 396 is not liable to Plaintiffs for the death of decedent by reason of its alleged negligence, if any there be, in enforcing its collective bargaining agreement with the employer of decedent * * * ." Where, as here, a defendant pleads a fact, it may not mount an argument directly contrary thereto. Hall v. Brookshire, 364 Mo. 774, 267 S.W.2d 627, 630(4) (banc 1954); 31 C.J.S. Estoppel Sec. 117 b., p. 623, and Sec. 118 b., p. 631.

II.

In denying that they can be liable to plaintiffs in tort, defendants make a two-fold argument. They say: A. That "Plaintiffs may not bring a tort action against Defendants for violation of the collective bargaining agreement;" and B. That even if state law permits such a tort action, application of that state law would subvert the national labor policy under which a union's liability is limited to providing fair representation as collective bargaining agent.

A.

Contrary to defendants' contention, the Missouri cases hold that liability in negligence may grow out of the breach of a duty imposed by a contract. Helm v. Inter-Insurance Exchange, 354 Mo. 935, 192 S.W.2d 417 (banc 1946); Braun v. Riel, 40 S.W.2d 621 (Mo.1931); Ellyson v. Missouri Light & Power Co., 59 S.W.2d 714 (Mo.App.1933); Peitzman v. City of Illmo, 141 F.2d 956 (8th Cir. 1944); Aetna Insurance Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472 (8th Cir. 1968). So it was said in the Braun case, supra, at l.c. 623:

"It is well settled that, while a 'tort' is a wrong done independent of contract, there are torts committed in the nonobservance of contract duties. And if a tort arising out of nonobservance of such duties results in a death, a surviving person entitled to sue may avail himself of the Wrongful Death Statute."

This point has been reviewed in this very case by Judge Hunter in Helton v. Hake, 386 F.Supp. 1027 (D.C.Mo.1974). After the filing of this suit in the circuit court, defendants filed a petition for removal to the United States District Court alleging federal jurisdiction under Section 301 of the Labor Management Relations Act, 29 U.S.C.A. Sec. 185(a). That section authorizes suits in the federal District Court for violation of a collective bargaining agreement without respect to the amount in controversy or the citizenship of the parties. Defendants' theory on the removal proceeding, as it is here, was that plaintiffs' cause of action arose out of and was for the purpose of enforcing the safety...