Leary v. Kelly Pipe Co.

• Decision Date: 28 May 1976
• Docket Number: No. 12894,12894
• Citation: 169 Mont. 511,33 St.Rep. 413,549 P.2d 813
• Parties: Patrick LEARY, Plaintiff and Appellant, v. KELLY PIPE COMPANY, a California Corporation, et al., Defendants and Respondents.
• Court: Montana Supreme Court

Page 813

549 P.2d 813

169 Mont. 511

Patrick LEARY, Plaintiff and Appellant, v. KELLY PIPE COMPANY, a California Corporation, et al Defendants and Respondents.

No. 12894.

Supreme Court of Montana.

Submitted Feb. 3, 1976.

Decided April 28, 1976.

Rehearing Denied May 28, 1976.

Burgess, Joyce, Prothero, Whelan & O'Leary, Butte, Thomas F. Joyce (argued), Robert T. O'Leary (argued), Butte, for plaintiff and appellant.

Corette, Smith & Dean, Butte, R. D. Corette, Jr., (argued), Henningsen, Purcell & Genzberger, Rex F. Henningsen (argued), Butte, for defendants and respondents.

HASWELL, Justice.

Plaintiff Patrick Leary brought this action in the district court of Silver Bow County against the Kelly Pipe Company, F-B Truck Lines and Richard Wood for damages based upon the alleged negligence of all defendants. Plaintiff suffered personal injuries when a load of pipe fell from a truck-trailer onto him while he was assisting in the process of unloading. A separate jury verdict was returned for each defendant and judgment was entered accordingly. Plaintiff appeals.

Patrick Leary was an employee of the Bechtel Corporation at the time of the accident involved in this case. Bechtel Corporation is a large construction company which had contracted to build a new ore treatment facility for the Anaconda Company in the vicinity of Anaconda, Montana. Part of the construction required the installation of a water line to the new plant, and steel pipe for this purpose was ordered from defendant Kelly Pipe Company, a California firm with a plant at Santa Fe Springs, California.

Kelly Pipe or Bechtel contracted with defendant F-B Truck Lines to haul the pipe from the Kelly Pipe plant to Anaconda. F-B is a Utah corporation that has an Interstate Commerce Commission certificate, or permit, to haul goods in interstate commerce by truck. F-B uses 'contract drivers' to operate the trucks under a system whereby the driver buys the tractor with financing guaranteed by F-B and F-B owns the trailers that are attached to the tractors. The tractors carry the name of F-B and its distinctive colors.

On July 30, 1973, one Graham, a 'contract driver' for F-B, was directed by F-B to pick up a load of pipe for F-B at Santa Fe Springs. The load in question consisted of twenty-four pieces of pipe, each piece being forty feet long, eighteen inches in diameter, and weighing approximately one ton. Graham, with the assistance of Kelly Pipe employees, loaded the pipe on the trailer and secured the pipe with his own chains. Pieces of lumber called dunnage and chocks were also used to prevent lateral movement of the pipe while in transit. This lumber was provided from the yard of Kelly Pipe.

Graham drove the loaded truck to Wilmington, California and left it in a storage yard used by F-B. He removed his chains, leaving the load of pipe unbound.

On August 2, 1973, defendant Richard Wood, another 'contract driver' for F-B, was assigned by F-B to pick up this load of pipe at the Wilmington yard for transport to the construction site near Anaconda, Montana. Wood had no Interstate Commerce Commission permit and no contractual relationship with Kelly Pipe, Bechtel Corporation, or Anaconda Company. Because Graham had removed his chains, Wood had to secure the load again and did so in a manner which became an issue in this lawsuit. Leary contends that had Wood secured the lower layers of pipe to the bed of the trailer, the subsequent accident would have been avoided. F-B and Wood say that the securing method employed was acceptable and not negligent. In any event, Wood proceeded to drive the load to Anaconda and arrived there on August 6, 1973.

Later the same day Wood drove the loaded truck to the pipeline construction site where Leary and others commenced to help him unload the pipe from the trailer. A crane was employed to attach cables to either end of a piece of pipe while Leary and another climbed onto the top of the load to place the cables on the ends of the pipe. Wood drove the truck during the unloading. While Leary was standing on the load of pipe after the first piece had been removed, the load rolled off the trailer to the ground in a sudden movement and the wooden dunnage cracked and broke. Leary was unable to jump clear of the falling pipe, fell with it, and was partially pinned under some of the eighteen pieces of pipe which rolled to the ground. Leary's injuries necessitated the amputation of a forearm and a leg.

Leary brought an action in tort alleging that the negligence of all defendants caused Leary severe injuries resulting in physical and mental pain and suffering, medical expenses, impairment of past, present and future earning capacity, and lost wages for an indefinite period of time in the future. He sought judgment of $886,200. The jury returned a separate verdict for each defendant.

Leary specifies numerous errors in the district court which may be summarized:

1. Did the district court err in allowing four peremptory jury challenges to Kelly Pipe, and four peremptory challenges collectively to F-B and Wood?

2. Did the district court abuse its discretion in refusing to admit three photographs into evidence as offered by Leary?

3. Did the district court err in giving certain instructions to the jury?

The district court ruled at the outset of the trial that Kelly Pipe was in an adverse position to F-B and Wood, thus entitling Kelly Pipe to four peremptory challenges in addition to the four allowed to F-B and Wood. Leary objected at that time and now asserts that the ruling was prejudicial error in that the defendants were able to decimate the panel with their total of eight peremptory challenges.

All parties rely on Mullery v. Great Northern Ry. Co., 50 Mont. 408, 148 P. 323, in support of their respective positions on this issue. Mullery stands for the proposition that under our jury challenge statute, now codified as section 93-5010, R.C.M.1947, the words each party' in reference to the permitted four peremptory challenges means 'each side' unless the positions of codefendants are hostile to each other. The opinion suggests that hostility betwen nominal defendants may be shown 'by pleading, representation, or evidence.' In this case Leary contends that defendants assumed identical positions, while defendants contend that Kelly Pipe attempted to shift all liability onto F-B and Wood and created a hostility between them.

In any event plaintiff must show that any error in allowing additional challenges was prejudicial to him. As stated in Annotation, Effect of allowing excessive number of peremptory challenges, 95 A.L.R.2d 957, 963:

'The numerical weight of authority in civil cases supports the rule that a judgment will not be reversed for error in allowing one or more peremptory challenges in excess of that provided by statute, unless the complaining party shows that he has exhausted his peremptory challenges and has suffered material injury from the action of the court, and that as a result thereof one or more objectionable jurors sat on the case, or for some other equally cogent reasons.'

In accord: Ashley v. Safeway Stores, Inc., 100 Mont. 312, 47 P.2d 53. Cf. Ferron v. Intermountain Trans. Co., 115 Mont. 388, 143 P.2d 893. To the extent Ferron may be interpreted as contrary to our holding herein, it is expressly overruled. In the instant case Leary has advanced no fact which indicates material injury, nor has he attempted to show that objectionable jurors sat on the case. Thus the first issue must be resolved in favor of defendants.

The second issue concerns the refusal of...