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

• Decision Date: 13 April 1959
• Docket Number: HARTMAN-HANKS-WALSH,No. 45964,No. 1,45964,1
• Parties: McDONNELL AIRCRAFT CORPORATION, a Corporation (Third Party Plaintiff), Appellant, v.PAINTING COMPANY, a Corporation (Third Party Defendant), Respondent
• Court: Missouri Supreme Court

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.

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 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 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 did assign said Arbuckle to work as a painter under the supervision of one of its painting foremen and did permit him to undertake the performance of such painting work at the plant in the steel girders near the roof of McDonnell's premises in close proximity to the location of one of the exposed 440 volt overhead crane conduits'; and that 'Arbuckle did not know of the presence or danger from such electric conduit, and shortly after undertaking the performance of his work as a painter, he inadvertently came in contact with such electric conduit and was caused to be burned and was caused to fall twenty feet to the floor below.'

It is McDonnell's contention that it has a valid claim for indemnity against Hartman and that Sections 287.120 and 287.150 of our Workmen's Compensation Act do not prevent it from recovery on such claim, as contended by Hartman. McDonnell says it has a valid claim for indemnity, both because it arises from common law liability for a tort, as to which Hartman was the one really guilty of fault, while it, without guilty responsibility, has become legally liable to the injured party and has discharged the liability; and because there is an implied promise to indemnify, which arises out of contract and obligations expressly assumed thereunder by Hartman, namely, an implied contract arising from a state of facts which makes it the equitable duty of Hartman to bear the obligation which has been cast on McDonnell. Citing Barb v. Farmers Insurance Exchange, Mo.Sup., 281 S.W.2d 297; Hunter v. De Luxe Drive-In Theaters, Mo.App., 257 S.W.2d 255; Busch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419, 276 S.W. 614; City of Springfield v. Clement, 205 Mo.App. 114, 225 S.W. 120; Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; American President Lines, Ltd. v. Marine Terminals Corp., 9 Cir., 234 F.2d 753, certiorari denied 352 U.S. 926, 77 S.Ct. 222, 1 L.E.2d 161; American District Telegraph Co. v. Kittleson, 8 Cir., 179 F.2d 946; Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567; Lunderberg v. Bierman, 241 Minn. 349, 63 N.W.2d 355, 43 A.L.R.2d 865; and other Federal and New York cases. In the City of Springfield case, the City had been held liable for personal injuries, sustained by a woman who fell on a sidewalk, for negligence in permitting the sidewalk to become and remain in a dangerous condition because of accumulation of ice thereon. The Court upheld the right of the City to recover on an action of indemnity against the property owner who negligently caused the condition by permitting downspouts carrying water from the roof of his building to become leaky so that water was precipitated on the sidewalk and froze in ridges. The Court said (225 S.W. loc. cit. 122) that the injured woman had a cause of action against the owner; that his...