Koirtyohann v. Washington Plumbing & Heating Co.

• Decision Date: 13 September 1971
• Docket Number: No. 2,No. 54805,54805,2
• Citation: 471 S.W.2d 217
• 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
• Court: Missouri Supreme Court

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.

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 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 employer must surrender full control of the employee in the performance of the particular work, it not being sufficient if the servant is partially under the control of a third party. Cases so holding include McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67; and Wills v. Belger, 357 Mo. 1177, 212 S.W.2d 736. See also Restatement, Second, Agency, § 227, with reference to factors to consider. Applying the doctrine of these authorities to the facts and circumstances in this particular situation, we conclude that Hoemeyer did not become an employee of the city under the borrowed servant doctrine. Hoemeyer did say that he would have complied with a request of Koirtyohann to slow down the speed of the motor on the backhoe and that he was taking orders from Koirtyohann on the job, but the evidence shows that the only directions given were where to dig the ditch and how deep it should be. The evidence does not show that full control of Hoemeyer was surrendered to the city. Consequently, he remained the employee of Washington and the latter would be liable under the doctrine of respondeat superior for negligent acts of Hoemeyer.

The ditch in question was being excavated for the express purpose of permitting the installation of a new six-inch water main. In digging that trench, Washington (which in effect was a subcontractor to dig the deeper portion of this ditch) was obligated to exercise reasonable care so as not to cause injury to the employees of others. This meant it must exercise reasonable care in its work to create a safe trench in which the city crew could work while laying the pipe. Killian v. Wheeloc Engineering Co., Mo., 350 S.W.2d 759, 762; Miller v. Brunson Const. Co., Mo., 250 S.W.2d 958. That included the duty to take precautionary measures when necessary to carry out that duty. According to Hoemeyer's own testimony, he knew that there was danger of a cave-in of the wall of the ditch he was digging because of the pressure caused by the dirt he piled near the ditch and because it was not veed. He took no steps to avoid that hazard and he did not warn deceased of the danger. This made a submissible case as to whether such conduct was negligent, and whether, as a direct result thereof, deceased was killed.

Defendants urge that Koirtyohann was experienced in this work, that he knew about veeing ditches, and that he was in the ditch where he could see the conditions, such as the dirt being piled up along the side, the concave wall, the spongy filled earth, and the fact that the walls were not veed nor shored. Such facts, according to defendants, resulted in plaintiff not having made a submissible case. Actually, of course, what defendants are urging is not that plaintiff's evidence did not make a submissible case of negligence on the part of the defendants, but rather that Koirtyohann was guilty of contributory negligence as a matter of law, and plaintiff cannot recover for that reason.

We conclude...