Linsin v. Citizens Elec. Co.

• Decision Date: 07 July 1981
• Docket Number: No. 42551,42551
• Citation: Linsin v. Citizens Elec. Co., 622 S.W.2d 277 (Mo. App. 1981)
• Parties: Oliver LINSIN, et al., Plaintiffs, v. CITIZENS ELECTRIC COMPANY, Defendant-Third Party Plaintiff-Appellant, v. MISSISSIPPI LIME COMPANY, Third Party Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 277

622 S.W.2d 277

Oliver LINSIN, et al., Plaintiffs, v.CITIZENS ELECTRIC COMPANY, Defendant-Third Party Plaintiff-Appellant, v.MISSISSIPPI LIME COMPANY, Third Party Defendant-Respondent.

No. 42551.

Missouri Court of Appeals, Eastern District, Division Two.

July 7, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Application to Transfer Denied Nov. 10, 1981.

George E. Lee, Doris J. Banta, St. Louis, for defendant-third partyplaintiff-appellant.

Clinton Roberts, Farmington, Vincent Igoe, St. Louis, for third party defendant-respondent.

Bernard Brinker, Clayton, Joseph Mueller, St. Louis, Robert Burns, Clayton, for plaintiffs.

WEIER, Judge.

This is an appeal from an order granting third party defendantMississippi Lime Company's motion to dismiss the third party petition of defendantCitizens Electric Company in which Citizens sought indemnity or contribution from Mississippi Lime should damages be awarded to plaintiffOliver Linsin for personal injuries sustained by him on August 8, 1977.The court designated the order to be final and appealable.We affirm.

Linsin, an employee of third party defendant, sustained serious personal injuries when he was working near a mobile crane in an area that was traversed by defendant's overhead electric lines situated on the employer's premises.The boom of the crane came into contact with the overhead energized electric lines while plaintiff's body was in contact with metallic portions of the crane.These power lines were wholly maintained by Citizens Electric and were used to provide energy solely to Mississippi Lime.A contract existed between the parties under which electric service was furnished by Citizens Electric to Mississippi Lime.

Plaintiff Linsin made a claim against Mississippi Lime Company under the Workmen's Compensation Act.Benefits were paid by Mississippi Lime to Linsin.Plaintiff and his wife filed a petition against Citizens Electric alleging that defendant(1) negligently maintained a power line over the area at a height which was unsafe when defendant knew or should have known that cranes and other cleaning equipment were being used, (2) failed to properly insulate its power line, (3) failed to insulate or alternatively isolate its power line, (4) failed to systematically inspect its power lines for safety purposes, (5) failed to comply with safe practices, (6) failed to warn plaintiff and others of the dangerous conditions existing because of the power lines, (7) failed to guard the power lines to protect persons in the vicinity, and (8) failed to remove said lines to a nearby uninhabited, unused area.Plaintiff prayed that he be awarded $2,500,000 in actual damages and $2,500,000 in punitive damages.

Defendant then impleaded Mississippi Lime alleging that the third party defendant had in its employ personnel who were skilled in electrical matters and who customarily and regularly maintained contact with defendant's personnel for the purpose of advising defendant as to the electric requirements of third party defendant and that Mississippi Lime's personnel knew that defendant could partly de-energize lines on third party defendant's premises without adversely affecting their energy requirements.Defendant alleged that they relied on and had a right to rely on such skilled personnel of third party defendant and denied the allegations of negligence in plaintiff's petition.Defendant further alleged that third party defendant was negligent in failing to warn plaintiff and in failing to inform them that third party defendant's employees would be working in the area where the energized lines were located.Defendant prayed alternatively for full indemnity or contribution ¹ from third party defendant in the event it should be held liable to plaintiff.

Third party defendant filed motions to dismiss or strike the third party petition relying primarily upon the contention that the Workmen's Compensation Act, § 287.120.1, RSMo 1978, operated as a bar to the third party petition.The trial court granted the motion to dismiss and designated such order as final and appealable.

Defendant raises four closely-related points on appeal.The focus of these points is that the third party petition stated a cause of action for indemnity arising out of a contractual relationship between Citizens Electric and Mississippi Lime and that the Missouri Workmen's Compensation Act is not a bar to defendant's third party claim.On appeal defendant no longer contends that it is entitled to contribution under the theory adopted in Missouri Pacific Railroad Company v. Whitehead & Kales Company, 566 S.W.2d 466(Mo.banc 1978) because of the decision in State of Missouri ex rel. Maryland Heights Concrete Contractors, Inc. v. Ferriss, 588 S.W.2d 489(Mo.banc 1979).The trial court relied on Maryland Heights, supra, in granting third party defendant's motion to dismiss.

In Maryland Heights, supra, the court dealt with the question whether an employer could be joined as a third party defendant in an action brought by the survivors of an employee against a non-employer defendant under the authority of Whitehead & Kales, supra.In making its determination, the court looked to the Workmen's Compensation Act, § 287.120.1, RSMo 1978.The court stated:

"The statute, supra, is clear and unambiguous.It operates to release the employer from all other liability.In McDonnell Air. Corp. v. Hartman-Hanks-Walsh P. Co., 323 S.W.2d 788(Mo.1959), the court allowed the non-employer defendant to maintain an indemnity action against the employer of the injured employee but only on the basis that the employer defendant(Hartman) had breached a duty it expressly agreed (contracted ) to perform with the non-employer (McDonnell ).The rationale of the McDonnellcase, supra, supports the conclusion that, aside from the exception noted therein, the employer is not liable to the non-employer defendant for any sums that non-employer party is liable for to the injured plaintiff-employee in tort."Maryland Heights, supra at 490.

The court then held that § 287.120.1, RSMo 1978, statutorily immunizes the employer from common-law liability to Maryland Heights Concrete Contractors, Inc. and Missouri Pacific Railroad Company v. Whitehead & Kales, supra, does not remove the immunity.Id.

The central issue in this appeal therefore becomes whether defendant's third party claim falls within the exception of McDonnell Aircraft, supra.If it does not, the third party claim is barred by § 287.120.1.Defendant relies on McDonnell, supra, both for the validity of its cause of action and for the proposition that it is not barred by § 287.120.1.

In McDonnell, supra, Hartman's employee was injured by contact with an exposed electric wire while painting McDonnell's plant under a contract between McDonnell and Hartman.The employee received workmen's compensation benefits from his employer and sued McDonnell for his injuries.This action resulted in a judgment against McDonnell which was settled with pl...