Parlow v. Dan Hamm Drayage Co.

• Decision Date: 10 May 1965
• Docket Number: No. 1,No. 50639,50639,1
• Citation: 391 S.W.2d 315
• Parties: Margaret V. PARLOW, Plaintiff-Respondent, v. DAN HAMM DRAYAGE CO., Defendant-Appellant
• Court: Missouri Supreme Court

Page 315

391 S.W.2d 315

Margaret V. PARLOW, Plaintiff-Respondent, v. DAN HAMM DRAYAGE CO., Defendant-Appellant.

No. 50639.

Supreme Court of Missouri, Division No. 1.

May 10, 1965

Motion for Rehearing or to Transfer to Court En Banc Denied

June 14, 1965.

Morris E. Stokes, Paul E. Dixon, F. Douglas O'Leary, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.

Heneghan, Roberts & Cole and John J. Cole, St. Louis, for defendant-appellant.

WELBORN, Commissioner.

This is an action by Margaret Parlow for the wrongful death of her husband. John Parlow was employed as a welder by the Ace Metal Products Company which was constructing a tank for Monsanto Chemical Company. Ace engaged a crane and operator for the project from the Dan Hamm Drayage Co. (referred to herein as 'Hamm'). Parlow's death occurred when a portion of the crane collapsed, allowing a metal roof piece being hoisted into place by the crane to fall, carrying Parlow to his death. His widow brought this action against Hamm, relying upon the res ipsa loquiture doctrine. Hamm denied that at the time of the accident the crane was under its control and alleged it was under the control of an employee of Ace. A jury returned a verdict of $25,000 for plaintiff. After its motion for new trial had been overruled, Hamm appealed to this court.

Ace Metals Products Company of Amarillo, Texas, contracted with Monsanto Chemical Company to construct a cylindrical steel tank for the latter in St. Louis. The tank was to be 60 feet in diameter, with a shell (or sides) 30 feet in height and a peaked roof 35 feet high at the peak. The shell was constructed of 6' X 20' pieces of steel, varying from 7/16"' to 1/4"' in thickness. The roof was to be formed from 12 pie-shaped pieces of 3/16"' plate steel some 10 to 14 feet wide at the base and 8 inches wide at the point. The base of each piece was to be welded to the shell of the tank and the point to a metal pipe to be erected in the center of the tank.

Johnny Sugg, the Ace superintendent on the job, came to St. Louis and hired boilermakers to weld the pieces of the tank in place. Parlow was one of those so employed. Sugg also employed an operating engineer to operate Ace's winch truck which was used to hoist the pieces of the sides of the tank in place for welding. The winch truck was so used, situated on the floor of the tank, and the sides were built around it.

Near the time that construction of the sides of the tank was completed, Sugg called Dan Hamm Drayage Co., which was in the business of providing machinery for hire. Sugg talked to Andy Sargent, a sales engineer employed by Hamm, about obtaining a crane for the Monsanto job. Sargent came to the job site and Sugg explained to him that a crane was needed to lift the winch truck out of the tank, to set a 20"' pipe some 35 feet in length in place in the center of the tank and to lift the roof pieces in place and hold them while they were welded. The weight of the truck was approximately 10,000 pounds, the pipe 2,800 pounds and each of the 12 roof pieces 2,700 to 3,000 pounds.

According to Sugg, he left to Sargent the determination of the type of machinery required for the job. Hamm's Koehring Model 304 mobile crane, referred to as a 25-ton capacity crane, was selected for the job. The crane had been acquired by Hamm in June, 1950. According to Sugg, Hamm was to furnish a crane, the operator, the fuel and the repairs or whatever it might take to do the work. Ace was to pay Hamm $177 per day for the use of the crane and the operator.

The crane was driven from Hamm's yard to the job site by an oiler, Harold Workman, an Ace employee. Hamm employed, through the union hall, Earl Skelton to operate the crane. Skelton had worked for Hamm previously, his latest prior employment having been in 1959. Hamm paid Skelton for his work and handled all matters incidental to his employment, such as deducting and paying his social security taxes, income tax withholding, etc. Skelton accompanied the crane to the job site, as did a Hamm truck which transported the boom, the jib, an 'A' frame and other equipment for rigging the crane.

The crane arrived at the job site on November 7, 1960. Skelton directed Ace boilermakers working on the job in the assembly of the boom and the rigging of the crane. The crane had a 45-ft. boom made of four 10-ft. sections and one 5-ft. section, which were bolted together. The rigging also included a 30-ft. jib or extension of the boom, which was attached to the end of the boom. The jib was held in place by an 'A' frame installed at the tip of the boom. The 'A' frame was held perpendicular to the boom by cables running from it to the base of the boom and from the 'A' frame to the tip of the jib. The 'A' frame, which Hamm had obtained in June, 1951, was 5 feet long and 3'3"' wide at its base. It was made of 5/16"' angle steel.

The winch truck was removed by the crane from the tank. Using the crane with the jib in place, the 20"' pipe was set in place in the center of the tank and secured by guy wires attached to the shell.

The crane was then used to unload the roof pieces from a railroad gondola car on a siding at the job site. To unload the roof pieces a single eye, used only for such purpose, had been welded to the surface and a cable was attached to the eye and then to the crane hook. After the roof pieces had been unloaded, an eye was welded in the vicinity of each of the three points of the pie-shaped section.

On November 11, 1960, work was started on installation of the roof sections in place. Skelton was operating the crane which was located near the base of the tank. A scaffold had been erected around the circumference of the tank, approximately four feet from the top of the shell. Parlow and another Ace welder, Gillespie, were on the scaffold as the first piece of the roof was hoisted to the top of the tank by the crane. A U-shaped clevis was hooked into each of the three eye plates and the clevis was fastened to a cable and the three cables or choker fastened to a ring which was hooked into the crane hook. The lifting was accomplished by raising the crane hook, attached to a cable which ran through a sheave, or pulley at the end of the jib, a sheave on the 'A' frame, and then to the drum in the crane cab. Parlow gave signals to Gillespie of the movements necessary to fit the section in place and Gillespie, who was standing on the scaffold directly above the crane operator, relayed the signals by hand movements to Skelton. The roof section was swung into place, using the 3-cable choker attached to the three eyes near the points of the section. The section was then tack welded to the shell by Gillespie and Parlow. 2-inch tack welds were made approximately every 8 inches. This welding operation took approximately 30 minutes.

After the tack welding to the shell had been completed, the next part of the job was to affix the apex of the section to the pipe in the center of the tank. After the base of the section had been tack welded to the shell, the apex of the section was approximately two feet below the height required for the proper roof pitch. Parlow, who was on the section, gave signals to Gillespie, who in turn relayed them to Skelton, that the point of the section should be raised to obtain the proper pitch. With no change in the rigging that had been employed to raise the section in place, Skelton placed in operation the cable drum which raised the crane hook and the section was raised to the desired level. However, when the drum was braked, the section settled some four to six inches and Parlow signalled Gillespie, who again signalled Skelton, to 'pick it back up again.' Skelton did so, but the section again settled and the operation was again repeated. On the third time the desired height was held. After waiting about a minute, Parlow walked out to the point of the section, preparatory to doing the welding necessary to attach the section to the center pipe. Parlow had left his welding equipment near the point where he had been tack welding the roof section to the shell. Gillespie started to bring the equipment out to Parlow. He had taken one or two steps when 'everything caved in.' The roof section fell into the tank with Parlow on it. The tack welds held the edge to the shell and Parlow slipped from the point of the section and fell to the floor of the tank, suffering injuries which resulted in his death.

The fall of the roof section was the result of the collapse of the 'A' frame. The frame bent approximately double back toward the crane cab. The collapse of the 'A' frame left the jib inadequately supported and the weight of the load and of the jib pulled the jib to a vertical position.

According to Skelton, at the time the 'A' frame collapsed, the crane motor was running, but it was 'dogged off' and the load was being held in place by the braked drum. Skelton testified that the motor had been 'dogged off' from 10 to 30 minutes before the 'A' frame collapsed. He had noticed no sign of unusual strain on the crane and had no sort of forewarning of any possible difficulty. Workman, the oiler who was in the crane at the time, testified that the collapse occurred within a few seconds after the last 'hoist up' signal had been received.

On this appeal, defendant's first contention is that the evidence showed, as a matter of law, that Skelton was the borrowed servant of Ace, working under their exclusive direction and control and engaged in their work when the casualty occurred. 'Therefore, the court erred in overruling defendant's motion for directed verdict and for judgment after verdict and judgment in accordance with said motions.'

We reject the defendant's contention that the evidence showed that, as a matter of law, Skelton was the employee of Ace at the time of the casualty. Skelton was employed by Hamm. He was paid by Hamm. He could be discharged only by Hamm. Sugg testified that he was not a crane...