McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., HARTMAN-HANKS-WALSH

CourtMissouri Supreme Court
Writing for the CourtHYDE
Citation323 S.W.2d 788
PartiesMcDONNELL AIRCRAFT CORPORATION, a Corporation (Third Party Plaintiff), Appellant, v.PAINTING COMPANY, a Corporation (Third Party Defendant), Respondent
Decision Date13 April 1959
Docket NumberHARTMAN-HANKS-WALSH,No. 45964,No. 1

Page 788

323 S.W.2d 788
McDONNELL AIRCRAFT CORPORATION, a Corporation (Third Party
Plaintiff), Appellant,
v.
HARTMAN-HANKS-WALSH PAINTING COMPANY, a Corporation (Third
Party Defendant), Respondent.
No. 45964.
Supreme Court of Missouri, Division No. 1.
April 13, 1959.
Motion for Rehearing or to Transfer to Court en Banc Denied
May 11, 1959.

Page 790

Doris J. Banta, St. Louis, Carter, Bull & Baer, St. Louis, of counsel, for appellant.

George E. Heneghan and Heneghan, Roberts & Cole, St. Louis, for respondent.

HYDE, Presiding Judge.

This suit was begun by Arthur G. Arbuckle, a minor, by next friend, against McDonnell Aircraft Corporation and its Superintendent, hereinafter referred to as McDonnell, for damages for personal injuries. It resulted in a judgment against McDonnell which was settled for $32,100. McDonnell seeks to recover this amount, with interest and costs, from Arbuckle's employer Hartman-Hanks-Walsh Painting Company, hereinafter called Hartman, on a third party petition. The issues between Arbuckle and McDonnell were severed and tried separately with the result above stated. Thereafter, the Court sustained a motion to dismiss Count II of McDonnell's second amended third party petition (Count I was then dismissed without prejudice by McDonnell) and McDonnell has appealed from this judgment of dismissal.

When Arbuckle was injured, his employer Hartman was painting McDonnell's plant under a contract with McDonnell. Arbuckle received workmen's compensation from Hartman and sued McDonnell for his injuries (caused by contact with an exposed electric wire) as he had a right to do. General Box Co. v. Missouri Utilities Co., 331 Mo. 845, 55 S.W.2d 442, 446; Anzer v. Humes-Deal Co., 332 Mo. 432, 58 S.W.2d 962, 964; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153. The issues on the merits are whether Count II of McDonnell's second amended third party petition states a claim for indemnity; and if so, whether Sections 287.120 and 287.150 (statutory references are to RSMo and V.A.M.S.) of our Workmen's Compensation Act prevent its recovery on such claim. However, Hartman contends the dismissal of Count II of McDonnell's first

Page 791

amended third party petition was a dismissal with prejudice under Section 510.150, and McDonnell did not appeal therefrom, so that matter is res judicata and cannot be considered on this appeal.

McDonnell's first amended third party petition in two counts was properly filed in 1952. Hartman's motion to dismiss was sustained as to Court II thereof on August 26, 1952, but the motion to dismiss Count I was taken under submission. The issues between Arbuckle and McDonnell were then tried but no disposition was made of the motion as to Count I. McDonnell's second amended third party petition was filed in 1954 (after Arbuckle had obtained judgment against it) and motions to dismiss both counts thereof were thereafter filed. On October 13, 1956, the motion to dismiss Count I was overruled and the motion to dismiss Count II was sustained. Thereafter a timely motion for new trial was filed by McDonnell and, when it was overruled, Count I was dismissed without prejudice and a timely notice of appeal filed. Hartman says: 'If dismissal of first amended third party petition had not become a final judgment when dismissed, it certainly became a final judgment when appellant dismissed Count I and appellant's motion for a new trial did not preserve any claim of error as to the dismissal of Count II of that petition and when notice of appeal was filed, did not include any attempt to appeal from the final judgment arising from dismissal of Count II of first amended petition.' However, there was no final appealable judgment until all of the issues were disposed of; and Count I remained undisposed of until McDonnell dismissed it. Sec. 511.020; Sec. 512.020; Weir v. Brune, Mo.Sup., 256 S.W.2d 810; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; Magee v. Mercantile Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614 and cases cited. Therefore, the 1952 order sustaining the motion to dismiss Count II of the first amended third party petition was only an interlocutory order (see Barlow v. Scott, Mo.Sup., 85 S.W.2d 504, 519) and there was no final appearable judgment until 1956 when both Counts were disposed of by McDonnell's dismissal of Count I after the Court had dismissed Count II. McDonnell had been permitted to file its second amended third party petition in the meantime; and it was that petition upon which final judgment was rendered. Of course, no motion for new trial is necessary to preserve for review the sufficiency of a petition. Rule 3.23, 42 V.A.M.S.; see also Gerber v. Schutte Investment Co., 354 Mo. 1246, 194 S.W.2d 25; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 1167, 200 S.W.2d 55, 63. We, therefore, hold that the sufficiency to state a claim, of Count II of McDonnell's second amended third party petition, is properly before us for review.

Count II of McDonnell's second amended third party petition stated that Arbuckle sued and had judgment against it for his injuries and that it had settled the judgment for $32,100 and costs. It further stated that Hartman entered into a written contract with it in 1951 'to perform and furnish all the necessary labor and equipment, including supervision, required to paint the structural steel roof supports, heating conduits, pipes, upper walls and ceilings of McDonnell's factory buildings' (copies of letter and order making up the contract were attached and incorporated by reference); that both parties 'entered into such painting contract cognizant of such hazards and of the exposure and possible danger of contact with highpowered electric lines necessary to the operation of overhead cranes and the manufacturing operations in McDonnell's said plant'; that agents of both parties 'did undertake a tour of the McDonnell plant and did identify and locate the existence of all such hazards and dangers to the individual painters and particularly as to the existence and location of exposed 440 volt electric crane conduits located amongst the steel girders upon which such painting work was to be performed'; that Hartman 'did agree to take all steps necessary for the full instruction

Page 792

of its employees as to the existence and location of such hazards, including the aforesaid exposed electric crane conduits, and to take and perform all necessary instructions and precautions for their safety and protection, including an obligation on the part of Hartman to personally instruct each of said painting employees as to the location and existence of such hazards as a prerequisite of their being allowed to begin such painting work in any part of McDonnell's premises'; that Hartman 'did fail and omit entirely to instruct said Arbuckle or caution him in any respect regarding the existence and location of hazards in the McDonnell plant, and particularly did fail to instruct and safeguard said Arbuckle concerning the existence and location of exposed 440 volt electric crane conduits, but, on the contrary, the said Hartman...

To continue reading

Request your trial
68 practice notes
  • Golden Val. Elec. Ass'n, Inc. v. City Elec. Service, Inc., No. 1580
    • United States
    • Supreme Court of Alaska (US)
    • January 21, 1974
    ...v. Sioux City Dressed Pork, Inc., 254 Iowa 845, 118 N.W.2d 559 (Iowa 1962); McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., 323 S.W.2d 788 (Mo.1959); Vegetable Oil Prods. Co. v. Superior Court, 213 Cal.App.2d 252, 28 Cal.Rptr. 555 (1963); San Francisco Unified School Dist. v. ......
  • Hendrickson v. Minnesota Power & Light Co., No. 37845
    • United States
    • Supreme Court of Minnesota (US)
    • July 8, 1960
    ...Standard Oil Co. v. Robins Dry Dock & Repair Co., 2 Cir., 32 F.2d 182; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788; see, Annotation, 38 A.L.R. 566, and cases 22 M.S.A. § 176.031 provides: 'The liability of an employer prescribed by this chapter is exclu......
  • Parks v. Union Carbide Corp., No. 61468
    • United States
    • Missouri Supreme Court
    • June 10, 1980
    ...made final for purposes of appeal. 1 The court of appeals said it was constrained by McDonnell Air. Corp. v. Hartman-Hanks-Walsh P. Co., 323 S.W.2d 788 (Mo.1959) to hold that the third-party petition should be permitted, but transferred the case because it was not certain as to the interpre......
  • Whirlpool Corporation v. Morse, No. 3-62-Civ. 287.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • June 13, 1963
    ...opinion which contains an excellent discussion of this area of the law is McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., 323 S.W.2d 788 (Mo.S.Ct.1959). In that case the building interior was to be painted by a contractor, the owner having 222 F. Supp. 657 first pointed out al......
  • Request a trial to view additional results
68 cases
  • Golden Val. Elec. Ass'n, Inc. v. City Elec. Service, Inc., No. 1580
    • United States
    • Supreme Court of Alaska (US)
    • January 21, 1974
    ...v. Sioux City Dressed Pork, Inc., 254 Iowa 845, 118 N.W.2d 559 (Iowa 1962); McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., 323 S.W.2d 788 (Mo.1959); Vegetable Oil Prods. Co. v. Superior Court, 213 Cal.App.2d 252, 28 Cal.Rptr. 555 (1963); San Francisco Unified School Dist. v. ......
  • Hendrickson v. Minnesota Power & Light Co., No. 37845
    • United States
    • Supreme Court of Minnesota (US)
    • July 8, 1960
    ...Standard Oil Co. v. Robins Dry Dock & Repair Co., 2 Cir., 32 F.2d 182; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788; see, Annotation, 38 A.L.R. 566, and cases 22 M.S.A. § 176.031 provides: 'The liability of an employer prescribed by this chapter is exclu......
  • Parks v. Union Carbide Corp., No. 61468
    • United States
    • Missouri Supreme Court
    • June 10, 1980
    ...made final for purposes of appeal. 1 The court of appeals said it was constrained by McDonnell Air. Corp. v. Hartman-Hanks-Walsh P. Co., 323 S.W.2d 788 (Mo.1959) to hold that the third-party petition should be permitted, but transferred the case because it was not certain as to the interpre......
  • Whirlpool Corporation v. Morse, No. 3-62-Civ. 287.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • June 13, 1963
    ...opinion which contains an excellent discussion of this area of the law is McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., 323 S.W.2d 788 (Mo.S.Ct.1959). In that case the building interior was to be painted by a contractor, the owner having 222 F. Supp. 657 first pointed out al......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT