Tractor-Trailer Supply Co. v. Wilbur Waggoner Equipment Rental & Excavating Co., Inc.

• Decision Date: 27 April 1976
• Docket Number: No. 36499,TRACTOR-TRAILER,36499
• Parties: SUPPLY COMPANY, a corporation, Plaintiff-Appellant, v. WILBUR WAGGONER EQUIPMENT RENTAL AND EXCAVATING CO., INC., Defendant-Respondent. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 465

539 S.W.2d 465

TRACTOR-TRAILER SUPPLY COMPANY, a corporation, Plaintiff-Appellant, v. WILBUR WAGGONER EQUIPMENT RENTAL AND EXCAVATING CO., INC.,

Defendant-Respondent.

No. 36499.

Missouri Court of Appeals, St. Louis District, Division Four.

April 27, 1976.

Motion for Rehearing or Transfer Denied June 15, 1976.

Application to Transfer Denied Sept. 13, 1976.

Zimbalist, Schramm & Walker, Clayton, Harvey I. Feldman, St. Louis, for plaintiff-appellant.

Kenney, Leritz & Reinert, Joseph L. Leritz, Frank C. Mansfield, St. Louis, for defendant-respondent.

NORWIN D. HOUSER, Special Judge.

Tractor-Trailer Supply Company appeals from an adverse judgment rendered on a jury verdict for Wilbur Waggoner Equipment Rental & Excavating Company in Tractor-Trailer's suit for damages to its building and contents when a wall of an adjacent old brewery building collapsed during demolition and fell upon plaintiff's main store building.

Appellant's first two points assign error in the giving and refusal of jury instructions but we need not consider alleged procedural errors because appellant did not make a submissible case of liability for the jury to consider.

The damage occurred when a headache ball, suspended from a crane, while being used to knock out inside partitions and break up inside floors of the 6-story brewery building, broke off a column in the middle, causing a floor to fall and strike the next lower floor, which put pressure on the outside wall, causing it to fall outward and down onto appellant's building. The crane was owned by and the crane operator was in the general employ of respondent. One Willard Hart, who had a contract to demolish the building, rented the crane from respondent company, which also furnished its own employees as operators of the crane and other rented equipment.

Appellant relies upon the doctrine of respondeat superior, and the cases of Parlow v. Dan Hamm Drayage Co., 391 S.W.2d 315 (Mo.1965); Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), adopted in such Missouri cases as Schepp v. Mid City Trucking Co., 291 S.W.2d 633 (Mo.App.1956); Wills v. Belger, 357 Mo. 1177, 212 S.W.2d 736 (1948), and O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085 (1934). According to appellant the vital question is not who controlled the crane but rather who controlled or had the right to control the operator of the crane . . . who was the master? Appellant says the answer to the question 'Whose servant was the crane operator at the time the accident occurred?' fixes liability under the principle of respondeat superior; that the crane operator was respondent's employee; that he was under the exclusive control of respondent; that there was no probative evidence to support the verdict.

Contrarily, respondent contends the undisputed facts show without question that appellant has no cause of action against respondent. Respondent seeks to distinguish Parlow on the facts and claims this case is governed by McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67 (1941); Wright v. Habco, Inc., 419 S.W.2d 34 (Mo.1967); Reichert v. Jerry Reece, Inc., 504 S.W.2d 182 (Mo.App.1973), and Ballard v. Leonard Bros. Transport Co., Inc., 506 S.W.2d 346 (Mo.1974).

Willard Hart went to respondent's heavy equipment rental place of business, looked over their equipment, selected and rented what he wanted. Respondent delivered the machinery to the job, and rented or furnished to Hart its employees Flougher, a crane operator; Fitzpatrick, a caterpillar tractor operator and Smith, a truck crane driver and oiler. Respondent's employees were on the demolition job one and a half to two months prior to the accident. In all they stayed on the job 8--12 weeks. These men were hired by, paid by and assigned to the job by respondent. On various jobs respondent's president Waggoner would give respondent's employees instructions as to whom they were going to work for, location of the job, what they were going to do, type of work, and to whom they were to report. In this case Waggoner told them they were going to a wrecking job for Hart and to report to Hart at the job site, but Waggoner did not give them any instructions on the details of the work they were to do for Hart; this was handled by Hart and Hart's employees. Respondent's employees kept their own time books, turned them into respondent weekly, and picked up their paychecks from respondent's office. Each working day they went directly to the job site. When day's work was done they went directly home, without checking in at respondent's office. During occasional visits to the job site Waggoner heard Hart give these employees instructions and observed them carry out Hart's instructions; heard Hart instruct the highlift operator with respect to loading brick into the dump trucks and instruct crane operators to 'knock this wall down' or 'knock this piece down.' Hart would 'direct them on the details of the work.' Waggoner did not interfere in any way with Hart's instructions because he had 'nothing to say' with respect to what Hart was doing. Waggoner told Smith to take instructions from Hart. Smith reported to Hart; took instructions from Hart. Hart would point out what work he wanted done. Smith also took instructions from Hart's foreman, who would tell him to knock down a certain wall, or column, or 'Drop the ball on the floor and knock this one floor down,' etc. Smith testified, 'In other words we more or less just worked as directed by (Hart's) foreman.' Fitzpatrick confirmed that he took directions from Hart or Hart's foreman on what to do; what bricks to load onto trucks with the highlift and 'which ones not to mess with'; that they would point out what he was to do and what he was not to do, and that Waggoner never gave him any instructions on how he was to work on that job. Flougher testified he always asked Hart what he wanted done and how he wanted it done--'what he thought would be the best way to go about doing it and that's what I done'; that he also followed instructions gvien him by Hart's foreman; that Waggoner never gave him any instructions 'on how to operate that job.' Flougher never disagreed with Hart or his foreman in the matter of taking orders from them. He always agreed 'and went along with what they wanted to do. I didn't contradict them because they were there doing the job and they were telling us what to do. We weren't telling them what to do.'

On the day of the casualty respondent's employees Smith and Flougher were on duty. Fitzpatrick was not on the job that day (a Saturday), having been told by Hart that he did not want to have to pay him double time. Hart's original plan was to tighten a 25-foot steel beam against the outside wall...