Martin v. First Nat. of Independence Co.
| Decision Date | 11 November 1963 |
| Docket Number | No. 2,No. 49687,49687,2 |
| Citation | 372 S.W.2d 919 |
| Parties | Ivan A. MARTIN, Plaintiff-Appellant, v. FIRST NATIONAL OF INDEPENDENCE COMPANY, Defendant-Appellant |
| Court | Missouri Supreme Court |
Thaine Q. Blumer, Kansas City, Blumer & Wright, Kansas City, of counsel, for plaintiff-appellant.
Roy A. Larson, Jr., Kansas City, Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel, for defendant-appellant.
This is an action for personal injuries sustained by the plaintiff while working for a subcontractor in a building which was undergoing alterations under a construction contract made by the owner with a general contractor. The earlier petitions had joined as defendants the general contractor and a subcontractor, other than of plaintiff's employer, but in the third amended petition on which the case was tried the only defendants were the building owner and its principal tenant. First National of Independence Company was the owner of the building, and First National Bank of Independence was the tenant of the first three floors of the building, the upper floors of which consisted of offices rented to others. The trial court directed a verdict in favor of the Bank at the close of plaintiff's case from which judgment the plaintiff appealed; however, the plaintiff voluntarily dismissed that appeal before it was briefed and submitted in this court. The plaintiff obtained a judgment for $25,000 against the owner, First National of Independence Company, from which both parties have appealed. These cross-appeals are the ones with which we are now concerned. The plaintiff contends that the judgment should be amended by adding to it $12,212 which is the amount of Workmen's Compensation benefits paid the plaintiff by his employer, or that a new trial should be granted on the issue of damages alone. On the other hand, the defendant building owner contends the plaintiff failed to make a submissible case and that the judgment should be reversed outright or a new trial should be granted because of trial errors. The owner of the building which is the only remaining defendant will sometimes be referred to as the Independence Company.
The defendant Independence Company, organized under the General Business Corporation Act of Missouri, owned the building in question which is located at 129 West Lexington Street in the City of Independence. In July 1956 the Independence Company entered into a general contract with J. E. Dunn Construction Company for extensive alterations and remodeling of the building in accordance with the drawings and specifications prepared by A. Moorman & Company, architects; the general contractor agreed to furnish all the materials and perform all the work required by the contract for the sum of $320,866. It appears that the alteration work primarily dealt with the three floors occupied by the Bank; that is, the first basement or Liberty Street level, the first floor, and the mezzanine floor. Some alterations were also made in the subbasement which housed the heating and cooling equipment and which was used by the janitors in connection with the maintenance and service of the building, such as burning and disposing of refuse from the offices of doctors and others.
Norman Atkins, the local representative of the architectural firm in charge of the construction work, identified a mechanical drawing of the subbasement which showed six pipes to be installed new or rerouted. According to the plans, a 3-inch waste stack was to be replaced with a 4-inch soil pipe, a 1 1/2-inch hot water riser was to be rerouted, a new 2 1/2-inch cold water riser was to be installed, a 2 1/2-inch steam riser was to be rerouted, a 1-inch steam return pipe was to be rerouted, and a new 2-inch steam riser was to be installed. Among the subcontracts let by J. E. Dunn Construction Company was one to the Kansas City Insulation Company for covering all hot and cold pipes in the building with insulating materials, including those in the subbasement. John J. Malvan was an asbestos worker employed by Kansas City Insulation Company and the plaintiff was his helper.
In order to run the pipes to the upper floors of the building, additional openings had to be cut and changes made in the southeast corner of the building from the subbasement all the way up through three concrete floor levels, and jackhammers were used to drill and break out the concrete. Mr. Malvan testified the hole in the southeast corner of the subbasement ceiling was 8 to 12 inches across and there were times when he could see daylight through it. Mr. Atkins testified the opening made was 2 to 2 1/2 feet long. After the various pipes called for by the plans were in place, all of them except the waste lines were insulated by employees of the Kansas City Insulation Company. Mr. Malvan and the plaintiff worked on the upper floors for two or three weeks and during that time Mr. Malvan saw pieces of broken concrete in the shaft where he was insulating pipes. Mr. Malvan and the plaintiff had been working in the subbasement two or three days when the accident happened. Several overhead pipes ran north and south and several east and west in the southeast corner of the subbasement, the lowest of which were 10 feet 4 inches from the floor. There was a heater in the southeast corner on a base 5 feet 3 inches north and south by 4 feet 6 inches east and west. The east side of the base was 3 feet 9 inches from the east wall of the subbasement and the south edge of the heater base was 2 1/2 feet from the south wall. The plaintiff was standing south of the heater base and east of a large pipe that came from the heater and turned upward to a large duct. The pipe was about 14 inches in diameter and its under side was 5 feet 10 inches from the floor. A box of insulating material was on the floor beside the plaintiff. Mr. Malvan was standing atop the heater applying the insulating material to the pipes, which material the plaintiff handed him as requested.
Shortly after lunch on June 30, 1958, Mr. Malvan heard a noise of something falling and a sound came from the plaintiff. Looking down he saw the plaintiff in a crouched position holding his head. He got down from the top of the heater and went to the plaintiff, but the plaintiff was unable to speak to him and was bleeding from the top of the head. There was a piece of concrete on the floor near the plaintiff about the size of Mr. Malvan's fist. Mr. Malvan first testified the chunk looked as if it had blood on it and later said it felt moist, but he was unable to describe it further. He cast the piece aside and it was not seen again. Mr. Malvan rendered first aid and then took the plaintiff to a hospital where he was examined. No fracture was found but two stitches were taken in the would and other medication was rendered. The plaintiff left the hospital in about two hours but it was too late to report for work that day. He returned to work the next day and after working a day or two he was discharged by the Kansas City Insulation Company. Later he developed headaches and some symptoms of paralysis on his right side and on two other occasions was confined to a hospital for examination and treatment. He has not worked since his employment was terminated with the insulation company. The nature and extent of his injuries are not in controversy here and need not be further developed. Mr. Malvan and the plaintiff were the only persons present when the plaintiff was injured. Their testimony will be referred to in further detail after a statement of the issues presented at the trial.
The allegation of negligence in the third amended petition is as follows:
The plaintiff's verdict-directing instruction was also on the res ipsa loquitur theory of negligence. It hypothesized that if the jury believed that 'while standing near the southeast corner of said sub-basement he was struck on the head by a piece of falling concrete, * * * and that said piece of concrete fell from the pipes near the ceiling' and plaintiff was injured, that such facts were sufficient circumstantial evidence to warrant a finding that the defendant was negligent unless the jury found from other facts and circumstances in evidence that the occurrence was not due to defendant's negligence.
The defendant concedes that the plaintiff occupied the status of a business visitor or invitee on the defendant's premises. This court in Harbourn v. Katz Drug Co., Mo., 318 S.W.2d 226, 228, approved the statement of the conditions under which the possessor of land was liable to a business visitor as set out in Restatement of the Law of Torts, Vol. II, Sec. 343, as follows: 'A possessor of land is subject to...
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