Huff v. Union Elec. Co.
| Citation | 598 S.W.2d 503 |
| Decision Date | 11 March 1980 |
| Docket Number | No. 40183,40183 |
| Parties | Carl L. HUFF et al., Apps., Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Defendant-Respondent. |
| Court | Court of Appeal of Missouri (US) |
R. J. Slater, Godfrey P. Padberg, Padberg, McSweeney, Slater, Merz & Reid APC, St. Louis, for plaintiffs-appellants.
James J. Virtel, Jerry B. Wamser, Schlafly, Griesedieck, Ferrell & Toft, St. Louis, for defendant-respondent.
This case involves construction of the workmen's compensation law. Appellants Carl L. Huff, an employee of McCarthy Brothers Construction Company, and his wife, Lillian Mae Huff, brought a third party action based on common law negligence against respondent Union Electric Company. The jury returned a verdict for appellants and assessed damages for the work related injury at $700,000.00. 1 The trial court set aside the verdict and granted respondent's motion for a new trial on the grounds that it was prejudicially erroneous to give Instruction No. 5 requested by appellants as a converse to respondent's Instruction No. 4. Instruction No. 4 directed a finding for Union Electric if the jury found facts making it Carl Huff's statutory employer.
Respondent Union Electric 2 contracted with McCarthy Brothers Construction Company for the purpose of erecting certain electrical transmission line towers along a strip of ground owned by the Terminal Railway Association and adjacent to its railroad track.
There was a written agreement between Terminal and Union Electric under the terms of which Union Electric was allowed to construct and operate a high voltage transmission line on Terminal's right-of-way. Union Electric is designated the "licensee" in the agreement and Terminal the "licensor." The agreement was recorded in the office of the St. Louis County Recorder of Deeds. Among other things, the agreement provided that (subject to a $700.00 annual rental rate per linear mile) Union Electric could engage in the construction, maintenance or improvement of transmission lines on Terminal's property so long as this construction or other allowed activity met with Terminal's approval and did not interfere with the operation of Terminal's business.
A 34,500-volt transmission line had been located on the Terminal right-of-way for some time. Union Electric, interested in increasing the capacity of its transmission system, had designed a new transmission line which would carry 138,000 volts and thus help meet the ever-increasing demand for electrical power. The new 138,000-volt line was to be constructed adjacent and parallel to the old 34,500-volt line which was to be torn down and removed after construction of the new line was completed.
Bids were accepted from various contractors for the construction of these new towers, based on a design prepared by Union Electric. The bid of McCarthy Brothers Construction Company was accepted and the firm prepared to perform the work in accordance with its new contract. The contract provided that all work on the project was, "to be performed under the general direction, supervision, and responsibility" of McCarthy Brothers. Union Electric retained the right to inspect upon demand and, of course, the right of final acceptance of the completed work.
The contract further provided that, as work progressed, Union Electric could alter the project's specifications so as to deal with any special, unanticipated problems which might arise. Hugh Wilson, a Union Electric employee, was appointed "construction supervisor" one of whose responsibilities was to determine the necessity for and extent of any deviation from the original design and inform Harlan Vanderschaff, McCarthy Brothers' "project engineer." When apprised of these deviations, Vanderschaff's job was to implement the changes in the manner prescribed by Wilson.
Appellant Carl L. Huff was employed by McCarthy Brothers in the capacity of "hoisting engineer." Huff's specific duty was the operation of heavy machinery and he was, at all times, subject to the direct control of McCarthy Brothers.
In order for Union Electric to maintain electrical service at the required level during construction it was necessary to keep the existing 34,500-volt line energized as much as possible, but realizing the danger inherent in the operation of construction machinery around high voltage wires, a procedure was established for turning off the current in the 34,500-volt line during working hours. Each day, as the work party from McCarthy Brothers arrived, Vanderschaff would call Union Electric and have the existing power lines de-energized.
On February 29, 1972, Vanderschaff followed the usual procedure and received an "all-clear" from Union Electric's personnel indicating the power lines had been de-energized as he had requested. Work proceeded as usual. Appellant was operating a caterpillar tractor, using it to pull a drilling rig into position. After the rig was positioned, the rig's drilling boom was raised. As it was raised, appellant dismounted from the tractor to adjust a winch cable which was interfering somehow with raising the boom. He was standing near his tractor holding the inch-and-a-quarter metal winch cable and a pin when the boom either made contact with the 34,500-volt line or came so close that the current arced to the boom. Obviously Union Electric had failed in its duty to de-energize the power lines. Appellant received a severe electrical shock, was rendered unconscious, and taken to a hospital for treatment. The extent of appellant's injuries is not challenged and is not pertinent to this appeal. There was substantial evidence to prove that appellant sustained serious and permanent injuries.
Resolution of this appeal hinges upon whether appellant is a statutory employee of Union Electric. Determination of appellant's status requires construction of § 287.040, RSMo 1969 3 which sets forth the law as to statutory employees in subparagraph one and an exception to the statutory employee provision in subparagraph three. 4 Construction of the statute requires definition of the words "owner" and "improvements" as they are used in subparagraph three.
If Union Electric had work which was in the usual course of its business done under contract, on its premises, it would have been liable as the statutory employer of Huff, the employee of McCarthy Brothers Construction Company and thus would be shielded from common law liability. § 287.040.1.
On the other hand if Union Electric were the owner of premises upon which improvements were being erected by an independent contractor under § 287.040.3, the exception applies; Union Electric was not a statutory employer, and Union Electric is subject to suit by Huff for damages based on common law negligence.
In reviewing a trial court judgment granting a new trial an appellate court is more liberal in affirming the judgment than it would be had the motion for a new trial been denied. Douglass v. Missouri Cafeteria, Inc., 532 S.W.2d 811, 813(1-3) (Mo.App.1975).
Appellant relies on four points in support of his claim that the trial court erred in granting respondent's motion for a new trial. Three of the points relate to Instruction No. 5 which the trial court held to be erroneous. In his fourth point appellant contends that the trial court erred in holding that appellant was required to plead § 287.040.3 as an affirmative avoidance of respondent's pleading of the affirmative defense of statutory employee under § 287.040.1.
Appellant contends the trial court erred in granting a new trial grounded upon a finding that it was prejudicial error to give Instruction No. 5 which was requested by appellant. The trial court ruled it was error to give the instruction because: (1) it failed to require the jury to find that Union Electric was the owner of the premises where the injury occurred; (2) the word "improvements" was not defined; (3) the introductory phrase "you cannot find for the defendant" deviated from any introductory phrase prescribed by MAI and directed the jury to render a verdict against the respondent; and, (4) it misled the jury and directed them to return a verdict in favor of appellant irrespective of their findings on instructions numbered two and three.
The instruction of which respondent complains, Instruction No. 5, was ostensibly given as a converse to respondent's Instruction No. 4. They read:
Your verdict must be for the defendant on the claim of Carl Huff and Lillie Huff for damages, whether or not defendant was negligent, if you believe:
First, on February 29, 1972, Carl Huff was an employee of and was paid by McCarthy Brothers Construction Company; and Second, McCarthy Brothers Construction Company had a contract with the defendant for the performance of the Page-Mason tower foundation work; and
Third, on February 29, 1972, McCarthy Brothers Construction Company, by and through its employees, including Carl Huff, was performing work in accordance with its aforesaid contract with defendant on premises in the exclusive control of defendant and said work was in the operation of the usual business of defendant; and
Fourth, at the time of the occurrence on February 29, 1972, plaintiff Carl Huff was doing work which was in the usual course of the business of defendant.
The term 'exclusive control' as used in this instruction means such control of the premises that the general public does not have an equal right to use them.
Definition: Boatmen v. Superior Outdoor Advertising Co., 482 S.W.2d 743 (Mo.App.1972)
You cannot find for Defendant and against Plaintiffs under Instruction No. 4, whether or not you believe the propositions therein submitted to you, if you believe:
First, McCarthy Brothers Construction Company, by...
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