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

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: NORWIN D. HOUSER; SMITH, C.J., and ALDEN A. STOCKARD
• Citation: 539 S.W.2d 465
• Parties: SUPPLY COMPANY, a corporation, Plaintiff-Appellant, v. WILBUR WAGGONER EQUIPMENT RENTAL AND EXCAVATING CO., INC., Defendant-Respondent. . Louis District, Division Four
• Docket Number: No. 36499,TRACTOR-TRAILER,36499
• Decision Date: 27 April 1976

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

Page 466

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,...