Nuckols v. Andrews Inv. Co.
| Citation | 364 S.W.2d 128 |
| Decision Date | 03 December 1962 |
| Docket Number | 23617,Nos. 23615,s. 23615 |
| Parties | S. S. NUCKOLS and Helen Nuckols, Plaintiffs-Respondents, v. ANDREWS INVESTMENT COMPANY, a Corporation, Defendant-Appellant, and Andrew J. Johnson and Eileen M. Johnson, Defendants-Respondents. |
| Court | Court of Appeal of Missouri (US) |
Claude M. McFarland, McFarland, Rittman & Krimminger, Walter A. Raymond, Raymond, West & Cochrane, Kansas City, for appellant.
James W. Benjamin, Thomas E. Sims, Rogers, Field & Gentry, Kansas City, for plaintiffs.
Robert G. Oberlander, Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, John B. Yeaman, Platte City, for respondents.
Plaintiffs-respondents, S. S. Nuckols and Helen Nuckols, obtained a judgment for $15,000 for the wrongful death of their minor son, William, against defendant-appellant, Andrews Investment Company, a corporation.
William Nuckols was killed on July 11, 1960, while employed on a farm in Platte County, Missouri, by defendants-respondents, Andrew J. and Eileen M. Johnson. Decedent was found on a tractor in the hole of a collapsed low water dirt and concrete bridge on the farm.
The jury's verdict was against defendant Andrews Investment Company and was in favor of defendants, Andrew and Eileen Johnson. Andrews Investment Company has appealed seeking an outright reversal or at least a new trial, and plaintiffs, admittedly solely as a precautionary measure, and only in the event of success in this appeal by Andrews Investment Company, seek to have the judgment amended or modified so as to make it a joint judgment against all the defendants or in the alternative seek a new trial as to defendants Johnson on the question of liability alone.
None of the defendants offered any testimony at the trial, preferring to stand on their unsuccessful respective motions for a directed verdict. On this appeal they urge numerous contentions, including (1) failure of plaintiffs to make a submissible case; (2) contributory negligence as a matter of law on the part of decedent; (3) prejudicial error in certain instructions and (4) excessiveness of the verdict.
Specifically, the first charge of error of Andrews Investment Company, hereinafter sometimes referred to as appellant, is that 'The evidence failed to establish that this defendant owed any duty to the decedent (because) (1) This defendant had no control or right of control over the bridge involved; and (2) Decedent's rights against this defendant are only coextensive with that of his employer.'
On this contention involving submissibility, it is our duty to review the pertinent evidence in the light most favorable to plaintiffs and to give them the benefit of every inference reasonably deducible therefrom. This we proceed to do.
Andrews Investment Company in 1959 was the owner of a farm located just east of Highway 71 in Platte County, Missouri. A private road entered the farm from the highway, through a gate, on past a farm house and dairy barn, and about a block farther on crossed a low water bridge running west to east over Owl Creek to where there were located fee fishing lakes and cottages, one of which was occupied by the Johnsons and decedent. This road was the only practical way from Highway 71 to the Johnson Cottage.
Appellant had owned and farmed the land for several years prior to the Johnsons' possession of it. During that earlier time appellant had caused to be erected and had used two other bridges over Owl Creek but because of damage from occasional flooding of the creek had to replace them. Its president, Mr. Andrews, stated, 'That type of soil down there just washes and erodes down and gets wider all the time and we just couldn't keep a bridge in there.' Andrews gave his ideas to the builder as to how the third bridge should be built and it was built according to his suggestions including the number of tubes to be used, how large they should be, their location, and the packing of dirt and concrete over them. He told the contractor just what was wanted and the contractor did the work accordingly. Andrews knew that trucks and other heavily loaded vehicles would be using this new bridge.
The new bridge consisted of two large culvert pipes covered by earth fill with four to eight inches of concrete over it so as to form a bridge about 35 feet long and 12 or 14 feet wide. It was a low water bridge designed to permit the water to flow through the culvert pipes under it at low water stages, and also to flow over it in high water stages. The surface of the bridge was about five to eight feet above the bottom of the creek. Other than problems caused by washout or erosion is was an adequate bridge for farm use. It appeared to be solid and without defects when the Johnsons moved to the farm. It was used extensively by Mr. Johnson and decedent in order to move farm equipment from one side of the creek to the other as was often necessary in the farming operation. It was also used extensively by members of the public in getting to the fishing lakes operated by the Johnsons on the farm and by tradesmen making deliveries to the farm. The following picture of this bridge was taken shortly after the accident in question.
The Johnsons had lived near the farm and knew appellant desired to sell it. They had little money. Nonetheless a deal was arranged. On July 29, 1959, they executed a written 'sale' contract with appellant. This contract in ultimate effect can be loosely termed to be a rental arrangement with an option to purchase. The appellant agreed to sell and the Johnsons agreed to purchase. The stipulated purchase price was $60,000. The Johnsons had until February, 1962, to exercise the option by giving notes payable ten years from February 13, 1962, secured by a purchase money trust deed on the premises. For the privilege of use and occupancy prior to February, 1962, (option termination date) the Johnsons were to pay 5% interest on $60,000 at the rate of $250 per month, an additional monthly cash payment of $121.12 commencing March 15, 1960, as the estimated sum required to pay taxes and insurance on the farm, and, if not sufficient therefor, were to pay whatever additional was required for such taxes and insurance; any excess to be returned to them.
One clause of the contract is of special interest. It (Clause 10) provided,
The above mentioned deed and deed of trust were to be executed by the parties and put into escrow with the Bartlett Mortgage Company to be recorded if the contract was not cancelled on or before February 15, 1962, and they were executed.
In September, 1959, Mr. Johnson plowed the farm. He and his wife moved onto it on January 10, 1960. Mr. Johnson had known Butch (decedent) from March, 1954, and Butch had worked for him off and on since 1956. In April, 1960, Butch went to work for the Johnsons as a regular farm hand for $80.00 per month, plus room and board, and was so employed at the time of his death on July 11, 1960. Butch was then 18 years and 8 months old, and would have graduated from high school the following year.
In the latter part of June, 1960, there were some heavy rains, and considerable water passed over the low water bridge. Mr. Johnson noticed what appeared to be the commencement of a washout on the west side of the bridge, a hole several feet in diameter. He asked Butch to haul a load of rock to fill it in. Later, at lunch Butch told him the hole was so big he could stand with his feet in the bottom of the creek and barely reach the top. Because Mr. Johnson had thought the bridge was solid concrete he didn't understand Butch's report, and that very noon went down to inspect the bridge. He observed the washout described. That night there was more rain and again Mr. Johnson inspected the bridge, noticing that for the first time the concrete had a small crack across it parallel to the west bank near the west end, and that there was a settling of a quarter to a half inch at the outside of that crack. He or Mrs. Johnson then telephoned Mr. Andrews, President of the Andrews Investment Company and reported the situation of the washout and damaged bridge to him. Mr. Andrews came there that same day to inspect the bridge. Before his arrival Mrs. Johnson made a sign reading, 'No trucks allowed on crossing, Pepsi Cola and 7 Up honk horn'. Mr. Johnson placed this sign a block ahead of the bridge so that the sign faced Highway 71. Mr. Johnson tried to stop all 'heavy traffic' at the gate. Bread trucks and Coca Cola trucks would stop at the gate and he or his wife would meet them there. He (Johnson) stated he realized there was some degree of danger because he put this sign there about the trucks.
When Mr. Andrews arrived to inspect the bridge he observed the crack across it. It was large enough that he could stick his finger into the open part of it. He noticed the bridge had settled some. He observed the tubes had settled some. He crawled in under the bridge, 'crawled through the tube and I looked it over carefully, I will tell you that.' He saw that the dirt underneath the tubes had washed out so that the water flowed under and around the tubes instead of through them. He then had a discussion with Mr. Johnson as to what to do about it. At that time he was undecided whether to repair it by leaving the tubes, tear out some cement and fill back in with dirt and cover that...
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