Komeshak v. Missouri Petroleum Products Co.
| Decision Date | 14 June 1958 |
| Docket Number | No. 29844,29844 |
| Citation | 314 S.W.2d 263 |
| Parties | William H. KOMESHAK (Plaintiff) Appellant, v. MISSOURI PETROLEUM PRODUCTS COMPANY, a corporation (Defendant), Respondent. |
| Court | Missouri Court of Appeals |
Morris E. Stokes, Moser, Marsalek, Carpenter, Clearly, Jaeckel & Hamilton, St. Louis, for appellant.
Rene J. Lusser, Lusser & Morris, St. Louis, for respondent.
This is an action for damages for personal injuries sustained by plaintiff. From a judgment in favor of defendant, plaintiff appeals.
Plaintiff in his petition alleged that the defendant through it agents and employees was engaged in work necessary to the resurfacing of a highway in the State of Illinois; that a part of said work consisted in filling cavities beneath the surface of said highway by pumping molten tar through drilled holes into said cavity, thereby filling said cavity and that thereafter the hole was plugged with a wooden stake or plug for the purpose of preventing the molten tar from escaping until such time as it hardened or set.
Plaintiff further alleged in said petition that he was an employee of Maclair Asphalt Company, Inc., and as such was required to remove said plugs and to clear away the excess tar around them; that when he removed a wooden stake or plug from one of said holes hot tar exploded and spewed forth from said hole striking and injuring him.
The petition charged defendant with negligence (a) in failing to warn plaintiff of the danger connected with removal of the plug; (b) in creating a dangerous condition by pumping hot tar into a moist pocket beneath the surface of the highway; and (c) in failing to instruct plaintiff to wait a sufficient length of time before removing the plug.
Defendant in its answer, among other things, alleged that at the time of plaintiff's injury he was a loaned employee of the defendant; that the defendant was the special employer of the plaintiff; and, by reason thereof plaintiff is barred from maintaining this action because he comes within the provisions of the Workmen's Compensation Law of the State of Illinois, S.H.A. ch. 48, Sec. 138.1 et seq.
It is contended by plaintiff that the trial court erred in giving Instruction No. 5 at the request of defendant for the reason that it submitted a defense not supported by the evidence and for the further reason that said instruction failed to hypothesize facts essential to the defense submitted therein. This instruction submitted the defense that plaintiff was a loaned employee of defendant and was subject to the provisions of the Illinois Workmen's Compensation Act. We find it unnecessary to discuss the above mentioned points relied on by plaintiff because we must hold that plaintiff failed to make a case for the jury. Where plaintiff fails to make a case for the jury, alleged errors of the trial court are immaterial and deemed harmless. Cottonwood Fibre Co. v. Thompson, 359 Mo. 1062, 225 S.W.2d 702; Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240.
Plaintiff was employed by the Maclair Asphalt Company, Inc. His employer had a contract with the State of Illinois to resurface part of Illinois Highway No. 768. The Maclair Asphalt Company, Inc., entered into a contract with the defendant whereby the defendant agreed to drill approximately 250 holes in the concrete pavement on said highway and to pump approximately 5,000 gallons of asphalt into said drilled holes for the purpose of undersealing certain portions of said highway. The undersealing of said highway in this manner was a prerequisite to the resurfacing thereof by the Maclair Asphalt Company, Inc. The portions of the highway where the holes were drilled and the asphalt was pumped in had been indicated by the Highway Department of the State of Illinois. The 250 holes were drilled and filled with asphalt pursuant to the contract on September 28, 1953. It was a one-day job and the evidence showed that on such jobs it was the practice of the defendant to supply the key men on the job such as the pumper and the tank operator. Prior to appearing on the job the defendant had made arrangements with the Maclair Asphalt Company, Inc., to supply some of its employees. Among the persons furnished by the Maclair Asphalt Company, Inc., were the plaintiff and his foreman, Mr. DePriest.
The method of undersealing the highway was described by the foreman and another employee of the defendant. The first operation is to drill a hole approximately two inches in diameter in the concrete highway by means of a drill operated by an air compressor. Thereafter, hot asphalt of approximately 400~ Fahrenheit is pumped underneath the pavement through a hose with a nozzle attached. The nozzle is inserted in the drilled hole and asphalt is pumped into the cavity until it is filled. After the nozzle is removed the hole is plugged with a tapered stake about four feet in length. This stake is inserted immediately after the nozzle is withdrawn. Following the men who perform the aforesaid operations and after they are a certain distance ahead, is another crew of men who remove the stakes and clean off any excess asphalt that may remain on the top of the pavement.
The defendant company was considered a specialist in the job of undersealing highways. On the occasion of plaintiff's injury he was engaged in removing the stakes and cleaning the pavement.
The evidence showed that plaintiff had been employed by the Maclair Asphalt Company, Inc., for about three months prior to his injury. He had never worked for the defendant at any time, and prior to the day of his injury he had no experience in undersealing highways. He testified he had no experience from which he could know the danger of asphalt spewing or blowing out of the hole after the stake was removed. However, in this regard, he testified he withdrew the stake slowly and carefully. When he was asked why he withdrew the stake slowly and carefully, he answered, 'Well, it is just human nature for one to watch out for himself on a job of that nature.' In another part of his testimony he said he withdrew the stake carefully and 'wiggled' it, because he 'knew there was a danger of it blowing.'
Plaintiff testified that his foreman, Mr. DePriest, worked for the Maclair Asphalt Company, Inc., on the day of plaintiff's injury and that he (plaintiff) had worked under him all of the day he was injured. When plaintiff was asked about the authority of Mr. DePriest, he said, 'He was my foreman, and that is the only one I got my orders from.' He further testified that the work he was doing at the time of his injury was done at and under the direction of Mr. DePriest. In this same connection it is undisputed in the evidence that Mr. DePriest was the only one who could instruct or give orders to plaintiff. Mr. DePriest was described by all of the witnesses as a 'working foreman.' All of the witnesses agreed that in the State of Illinois a laborer working on this job could only be instructed by the 'working foreman.' Mr. Busch, foreman for defendant, a witness offered by plaintiff, testified that he was not permitted to tell the 'laborer working on the job what his job is, and what he is to do, and where to do it.' He said any instructions he had for the plaintiff and other laborers on the job had to be given to Mr. DePriest and that he (Mr. DePriest) would convey the instructions to the laborers. The testimony indicated that the basis of this procedure, which had to be followed, was a Union rule in effect in the State of Illinois. It was admitted by plaintiff that only Mr. DePriest could give him instructions. When plaintiff was asked if Mr. DePriest, the working foreman, was the only one who could give him orders, he answered,
Mr. Busch testified that he told Mr. DePriest 'to keep the men back 10 or more pegs' behind the crew that was pumping the asphalt into the cavities. He further instructed Mr. DePriest that when the stake or peg was being removed 'you should wiggle it and pull it slowly to see if there is any back pressure on the peg, and if there is you should put it back in the hole.' He also testified he told Mr. DePriest if any bubbling of the asphalt is observed to put the stake back in the hole and to skip removing the stake from that hole and to go on to the next stake. In a deposition, this witness testified he instructed Mr. DePriest to keep the men at least eight holes back of the pumping crew. Mr. Busch further testified no one else, that he knew of, gave Mr. DePriest instructions.
Plaintiff testified that Mr. DePriest showed him how to do his work. He said he received no instructions from Mr. Busch or any other person connected with the defendant. He further testified that pursuant to instructions received from Mr. DePriest he worked 'eight, nine or ten plugs behind' the pumping crew and withdrew the stakes from the holes slowly and carefully. He said he would 'wiggle' the stake and then pull it up slowly. He further testified that he followed this procedure because of the cautionary instructions given him by Mr. DePriest. After the stake was removed the excess asphalt would be removed from the highway pavement. He said he knew you could not be too close to the pumping crew 'because it would be too hot,' obviously meaning the asphalt would be too hot.
At the time plaintiff sustained his injury he said he was working about 'eight, nine, maybe ten' stakes behind the pumping crew. When plaintiff was asked if he could estimate the time that had elapsed between the filling of the hole with the asphalt and the removal of the stake, he answered 'Well, it could have been anywhere from 10 to 15 to 20 minutes.' When plaintiff removed the stake from the hole at which he was injured, he said he wiggled the stake and pulled it up slowly and turned the stake 'a little way from me in case it did blow.' He said nothing happened to indicate there was pressure in the hole. After...
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