Ridenhour v. Colson Caster Corp.

• Decision Date: 14 March 1985
• Docket Number: No. 13453,13453
• Citation: 687 S.W.2d 938
• Parties: Lorena Harriet RIDENHOUR, Plaintiff-Respondent, v. COLSON CASTER CORPORATION, Defendant, and M.C. Rippeto Company, Inc., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 938

687 S.W.2d 938

55 A.L.R.4th 707

Lorena Harriet RIDENHOUR, Plaintiff-Respondent, v. COLSON CASTER CORPORATION, Defendant and M.C. Rippeto Company, Inc., Defendant-Appellant.

No. 13453.

Missouri Court of Appeals,

Southern District,

Division One.

March 14, 1985.

Motion for Rehearing or to Transfer

Denied on April 2, 1985.

Application to Transfer Denied

April 30, 1985.

Erwin L. Milne, Stockard, Andereck, Hauck, Sharp and Evans, Jefferson City, for defendant-appellant.

Dan L. Birdsong, Thomas, Birdsong, Clayton & Haslag, P.C., Rolla, for plaintiff-respondent.

FLANIGAN, Judge.

Plaintiff Lorena Ridenhour brought this action for the wrongful death of her husband Lester Ridenhour, who died on December 23, 1980, as a result of injuries which he sustained the preceding day when he fell from a scaffold owned by defendant M. C. Rippeto Company, Inc., ("Rippeto"). Decedent, an iron worker, was employed by McCarthy Brothers Construction Company, the general contractor for the construction of an addition to the Phelps County Memorial Hospital at Rolla. Rippeto was a plastering subcontractor for McCarthy Brothers.

The second defendant was Colson Caster Corporation, ("Colson"). Plaintiff claimed that Colson had manufactured the casters attached to the legs of the scaffold. The jury found the issues in favor of plaintiff and against Rippeto and awarded plaintiff $150,000. The jury denied plaintiff recovery on her claim against Colson. Only Rippeto appeals.

Rippeto contends that portions of Instruction 7, plaintiff's verdict-director against Rippeto, were not supported by the evidence and that, by reason of these evidentiary deficiencies, plaintiff failed to make a submissible case against Rippeto. Instruction 7 reads:

"INSTRUCTION NO. 7

Your verdict must be for plaintiff on her claim against M.C. Rippeto Company, Inc. if you believe:

First, defendant M.C. Rippeto Company, Inc. furnished a scaffold which had a caster on it to plaintiff's husband, Lester Ridenhour, for use, and

Second, the caster had been improperly welded and was therefore dangerous when put to a use reasonably anticipated, and

Third, the caster was used in a manner reasonably anticipated, and

Fourth, plaintiff's husband, Lester Ridenhour, did not know and by using ordinary care could not have known of such dangerous condition, and

Fifth, defendant M.C. Rippeto Company, Inc. knew or by using ordinary care could have known of such dangerous condition, and

Sixth, defendant M.C. Rippeto Company, Inc. failed to warn plaintiff's husband, Lester Ridenhour, of such dangerous condition, and

Seventh, defendant M.C. Rippeto Company, Inc. was thereby negligent, and

Eighth, as a direct result of such negligence plaintiff's husband, Lester Ridenhour, died

unless you believe plaintiff is not entitled to recover by reason of Instruction No. 8."

Instruction 8, given at the request of Rippeto, submitted, as a defense, contributory negligence on the part of Lester Ridenhour.

Rippeto contends that there was no showing that Rippeto derived any commercial benefit from Ridenhour's use of the scaffold; that his use of the scaffold was the product of a "gratuitous bailment"; that the bailor in a gratuitous bailment is not liable to the bailee for injuries arising out of a defect in the bailed article unless the bailor had actual knowledge of the defect and failed to warn the bailee of it. Accordingly, argues Rippeto, paragraph Fifth of Instruction 7 is erroneous in not confining its requirement to actual knowledge on the part of Rippeto of the dangerous condition, that is, the improper weld in the caster. Constructive knowledge of that defect, Rippeto argues, is insufficient to impose liability on Rippeto and paragraph Fifth improperly hypothesized constructive knowledge as a sufficient alternate finding. Rippeto further argues that even if the bailment of the scaffold was a mutual benefit bailment, imposing upon the bailor a duty to use ordinary care to inspect the scaffold for defects, the defect here was one which would not have been disclosed by such an inspection.

Attached to the bottom of each of the four legs of the scaffold was a "rolling caster." Plaintiff's evidence showed that the scaffold, while being used in the ordinary manner by Ridenhour and a co-worker, "tilted and fell" causing Ridenhour to "fall over backwards, striking his head on the concrete." Plaintiff's evidence also showed that the tilting of the scaffold was caused by a defect in one of the casters. The defect consisted of an improper weld.

The leg of the scaffold is bolted into a "box" which is a component of the caster. The box was welded to a lower component of the caster, which contained the wheel. The defective weld between the box and the lower component "was covered--you could not see it when it was intact," according to plaintiff's witness Leon Henderson.

Plaintiff's witness Robert Wolf, an expert in mechanical and metallurgical engineering, testified that the tilting of the scaffold was due to a "metal failure" when the defective caster separated from its top and broke. According to Wolf, the welded surface, which was circular, should have been welded for the entire circle but only "10 to 20 percent" of the circle was welded.

Wolf testified that in his opinion the weld "was part of the manufacturing process," but he also stated that it was possible that the defective welding took place some time later when the caster was repaired and that "it was the repair that failed." Wolf testified that the welded area would not be open to the view of workmen. "You would have to take the caster off [of the leg of the scaffold] and look down to see the weld. You would have to take the caster apart and you would have to have some expertise, more than the ordinary workman, to see that there was a defect."

Plaintiff's evidence failed to show specifically when the defective welding took place or the identity of the welder. Instruction 7 did not require a finding that Rippeto did the defective welding.

Immediately following the accident McCarthy Brothers took possession of the scaffold, including the casters. Plaintiff's expert Wolf was permitted to inspect and photograph that equipment. The accident was investigated by the Occupational Safety and Health Administration, ("OSHA"). After that investigation was completed, the scaffold, including the defective caster, was returned to Rippeto. While in Rippeto's possession, the defective caster was lost.

Plaintiff's witness Fred Seitz, a Colson employee, looked at photographs of the defective caster. His testimony was that the broken caster was not a Colson caster because Colson "has never welded a box to the top of a swivel type caster." On Colson casters "the box is held to the top of the caster by a rivet." Plaintiff's witness Bill Green, an employee of Rippeto, testified that the scaffold was new when purchased by Rippeto and, as far as he knew, Rippeto had not welded the box to the lower portion of the caster.

Plaintiff's witness Charles Ousley, a foreman for Rippeto, testified that Ridenhour asked to borrow the scaffold and Ousley gave permission. Ousley also testified, "It is common to borrow equipment between contractors and subcontractors. It prevents having too much equipment on the job." Plaintiff also introduced evidence that McCarthy Brothers "loaned Rippeto our welders, cutting torches and ladders. It saved having two sets of equipment on the job."

The contract between McCarthy Brothers and Rippeto required Rippeto to furnish the necessary equipment for the performance of Rippeto's work but did not require Rippeto to furnish equipment for the employees of McCarthy Brothers.

Evidence introduced by defendant Colson showed that Colson did not manufacture casters "with a weld on it in this particular area," and that if the defective caster was a Colson caster, the defective welding took place "after it left the Colson manufacturing plant--some time after it left Colson."

The briefs of the parties cite no Missouri case involving the liability of a subcontractor to an employee of the general contractor for injuries sustained by the employee arising out of a defect in a piece of equipment bailed to him by the subcontractor under the circumstances present here.

There is substantial out-state authority for the proposition that a subcontractor whose equipment is used gratuitously by an employee of another contractor or subcontractor on the same project is not, as a general rule, liable for injuries sustained by the user as a result of the defective condition of the equipment where the subcontractor lacked actual knowledge of the defective condition, because the user in such a case is a mere licensee or gratuitous bailee. Arthur v. Standard Engineering Co., 193 F.2d 903 (D.C. Cir.1951); Hill v. Lyons Plumbing & Heating Co., 457 S.W.2d 503 (Ky.1970); Brauner v. Leutz, 293 Ky. 406, 169 S.W.2d 4 (1943); Eddy v. John J. Brady Plastering Co., 111 Ohio App. 190, 171 N.E.2d 722 (1959); Olivier v. Snowden, 426 S.W.2d 545 (Tex.1968); 13 Am.Jur.2d Building & Construction Contracts § 137, p. 128; 32 A.L.R.2d 414 (Duty and liability of subcontractor to employee of another contractor using equipment and apparatus of former). In Correa v. Stephens, 429 P.2d 254 (Alaska 1967), the defendant, a general contractor, was held not liable to plaintiff, himself a subcontractor, for injuries caused by a defect in the ladder plaintiff borrowed from defendant who had no actual knowledge of the defect.

In Arthur, Hill, Brauner, Eddy, and Olivier, the defendants, as owners of the borrowed and defective equipment, were absolved of liability where they lacked actual knowledge of the defect, although a custom existed for contractors and subcontractors and their respective employees to borrow equipment from each other. Arthur, Brauner, Eddy, and Olivier were defective scaffold cases. In Correa and Hill a ladder was the borrowed defective equipment.

The...