Koirtyohann v. Washington Plumbing & Heating Co., 54805

• Court: United States State Supreme Court of Missouri
• Citation: 471 S.W.2d 217
• Docket Number: No. 2,No. 54805,54805,2
• Parties: Bernice K. KOIRTYOHANN, Surviving Spouse of Wm. L. Koirtyohann, Deceased, Plaintiff-Respondent, v. WASHINGTON PLUMBING AND HEATING COMPANY, a Corporation, and Henry O. Hoemeyer, Defendants-Appellants
• Decision Date: 13 September 1971

Page 217

471 S.W.2d 217 Bernice K. KOIRTYOHANN, Surviving Spouse of Wm. L.
Koirtyohann, Deceased, Plaintiff-Respondent,
v.
WASHINGTON PLUMBING AND HEATING COMPANY, a Corporation, and
Henry O. Hoemeyer, Defendants-Appellants. No. 54805. Supreme Court of Missouri, Division No. 2. Sept. 13, 1971.
Rehearing Denied Oct. 11, 1971.
Modified on Court's Own Motion Oct. 11, 1971.

Page 218

Fred B. Whalen, Whalen, O'Connor & Byrne, St. Louis, Leo A. Politte, Washington, for plaintiff-respondent.

R. E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, John H. Mittendorf, Union, for defendants-appellants.

FINCH, Judge.

This case, written on reassignment, involves the question of whether plaintiff made a submissible case and whether the contributory negligence and converse instructions given on behalf of the two defendants were prejudicially erroneous as not being in conformity with the requirements of Missouri Approved Instructions (MAI).

The surviving spouse of Wm. L. Koirtyohann brought an action for wrongful death of her husband against Washington Plumbing and Heating Company (Washington) and Henry O. Hoemeyer (Hoemeyer), a heavy equipment operator in the employ of Washington. The jury returned a verdict in favor of both defendants, but the trial court awarded plaintiff a new trial on the ground that Instructions 7 and 9 (contributory negligence) and 8 and 10 (converse) were prejudicially erroneous. We affirm.

The Water Department of the City of Washington was replacing a two-inch water main with a six-inch line. The ditch was being dug by use of a trenching machine which was owned by the city and operated by the deceased, who was foreman on the job. That machine dug a ditch two feet wide and up to a maximum of 4 1/2 feet deep, piling the dirt on one side of the ditch by means of an elevator on the machine. Using that machine, deceased dug a ditch approximately 300 feet in length, at which point he stopped because a culvert and a creek, both of which intersected the water line, necessitated a deeper ditch which could not be dug with the trenching machine.

The city frequently rented equipment from Washington, and on this occasion the city engineer, at the request of the superintendent of the water department, called Washington and requested that it furnish a crawler-tractor with a backhoe attachment, together with an operator of the machine. Washington did not rent this kind of equipment without furnishing the operator

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therefor. It made a charge of a fixed amount per hour which covered the machine and operator.

Following the call from the city, Washington sent Hoemeyer to the city job site with the requested backhoe equipped tractor. The city did not select Hoemeyer and did not know what person Washington would send out to operate the backhoe.

On arrival at the job site, deceased showed Hoemeyer where he wanted the ditch to run, but gave him no instructions as to how to operate the backhoe, how wide the ditch should be, how the sides of the ditch should be fixed, or where the dirt removed from the ditch should be placed. Hoemeyer, an experienced heavy equipment operator, started at the point where the trenching machine had stopped and dug a deeper ditch toward the culvert. In so doing, he piled dirt on the south side of the ditch, which was the same side on which the dirt had been placed by the trenching machine. It sloped away from the edge of the ditch, the height of the pile varying from two to five feet.

Hoemeyer excavated up to the culvert but could not dig beneath it. It was necessary that this be done by hand, and the deceased and another city employee entered the ditch with shovels for that purpose. Meanwhile, Hoemeyer started digging on the other side of the culvert. About thirty minutes later, at which time Hoemeyer was twenty to thirty feet from the deceased, the south wall of the ditch caved in in the area where deceased was working. The ditch was five to six feet deep at the point of the cave-in and was seven to eight feet deep where the backhoe was operating.

Plaintiff submitted the case on the basis that the defendants were negligent in piling the dirt alongside the ditch where the added weight would cause the side to cave in, and in failing to slope the sides of the ditch so as to lessen the likelihood of a cave-in. Under the latter procedure, known as veeing, the ditch is made wider at the top, with the sidewalls sloping outwardly from bottom to top. For example, the ditch would be sloped back an additional three feet on each side of a five-foot ditch. The evidence was that this was a method with which Hoemeyer was familiar and which he had used.

There was testimony that this was a filled area and that in the vicinity of the culvert Hoemeyer encountered several tree trunks and branches which he dragged out with the bucket of the backhoe. This had the effect of loosening the dirt at the top of the ditch at that point. It also resulted in some of the sides of the ditch being concave. Hoemeyer testified that he determined on his own where to pile the dirt from the excavation, and that he knew the weight of the dirt would cause pressure on the wall of the ditch. He also knew that veeing the ditch would remove pressure on the wall and would remove a part of the dirt which would fall into the ditch if there was a cave-in. He testified that he was operating the machine at full speed and was aware that day of the hazard of a cave-in of the ditch, but gave no warning of any kind to deceased.

Hoemeyer was employed and paid by Washington. He testified that he did not consent to work for anyone else and that he was working for Washington on this job. Even so, Washington disclaims responsibility for his acts on the theory that he became an employee of the city under the borrowed servant doctrine. Washington says it gave Hoemeyer no instructions as to how to do this job, and that he was subject to the directions of deceased Koirtyohann, the city's foreman on the job.

There are numerous cases in Missouri dealing with the borrowed servant doctrine. Each case depends on its particular facts, but the underlying rule is that the right of control is determinative. To escape liability the general...