Union Elec. Co. v. Magary, No. 49933

CourtMissouri Supreme Court
Writing for the CourtPER CURIAM
Citation373 S.W.2d 16
PartiesUNION ELECTRIC COMPANY, a Corporation, Appellant, v. M. D. MAGARY, d/b/a M. D. Magary Construction Company, and Chester Watters, Respondents
Docket NumberNo. 49933,No. 1
Decision Date09 December 1963

Page 16

373 S.W.2d 16
UNION ELECTRIC COMPANY, a Corporation, Appellant,
v.
M. D. MAGARY, d/b/a M. D. Magary Construction Company, and
Chester Watters, Respondents.
No. 49933.
Supreme Court of Missouri, Division No. 1.
Dec. 9, 1963.

Page 17

William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for appellant.

Evans & Dixon, Wm. W. Evans, John F. Evans, St. Louis, for respondent.

HOUSER, Commissioner.

Claim of indemnity by an electric company against a contractor for $100,000 paid by the electric company to an employee of the contractor for damages for personal injuries sustained when he came in contact with the electric company's 2,500 volt transmission line while performing duties of his employment. Marvin Gillam, the employee, sued Union Electric for $250,000 damages, later increasing his prayer to $325,000, for negligent infliction of injury. Union Electric obtained leave and filed a third-party petition against M. D. Magary, d/b/a Magary Construction Company, and Magary's superintendent, Chester Watters, for indemnity for the amount of any liability of Union Electric to Gillam, on the theory that Magary and Watters were primarily liable. Before trial Union Electric paid Gillam $100,000 in settlement of his suit. Union Electric filed an amended third-party petition alleging the settlement and payment. Third-party defendant Magary filed a motion for summary judgment, one ground of which was that under the law and the evidence Union Electric is not entitled to recover against Magary. Third-party defendant Watters filed a motion for summary judgment on the ground that the amended third-party petition fails to state a claim upon which relief can be granted against Watters. These motions were sustained. Final judgment was entered for third-party defendants. From the judgment Union Electric has appealed.

From the amended third-party petition, affidavit, pleadings, exhibits, stipulation of counsel and evidence, the facts pertinent to the inquiry are these:

Magary contracted with Moll Grocery Company to paint the 40-foot smokestack of its incinerator and replace a spark arrester located at the top. The smokestack was located at the rear of Moll's premises at 1717 South Brentwood Boulevard in St. Louis County. Union Electric owned and maintained a power line at the rear of the grocery store. Built in 1943 on a 10-foot easement, and rebuilt in 1954, the electric facilities consisted of a bare, uninsulated 3-wire electrical circuit strung between porcelain insulators affixed to wooden cross-arms attached to upright wooden poles. Each wire carried 2,500 volts of electricity. A transformer was attached

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to the south side of the pole closest to the grocery store. That pole was 16 feet northwest of the incinerator. Wires ran from the transformer to the back of the grocery store, which was 26 feet directly east of the transformer. The 2,500 volt line nearest the smokestack hung a distance of 6 feet 8 inches horizontally west of the smokestack, at an elevation of 32 feet 9 inches above ground.

Superintendent Watters, who had full authority to act on behalf of Magary, inspected the job site to gauge the work to be done and decide on the method by which it should be accomplished. He observed the electric wires and poles but either did not pay any attention to whether they were 'electric' or, not considering them to be electric wires, thought they were telephone wires, having seen no warning signs on the poles. He considered it necessary to build a scaffold to get to the top of the smokestack to replace the spark arrester. He estimated that there was room for the scaffold to clear; that the distance between the scaffold and the closest wire would be 'a couple of feet.' He rented sectional metal (aluminum) scaffolding and directed Gillam to erect the scaffold on the west side of the smokestack--the side nearest the electric wires. Gillam and a co-worker built the scaffold. The sections were 5 x 7 feet. They were erected with the 5-foot width toward the wire. There was a conflict in the testimony whether the scaffold could readily have been placed on the south side of the smokestack, out of danger of contact with the charged wires. According to an affidavit filed on behalf of Union Electric this was possible. According to witnesses for Magary it was not because of a tree, or bracing on the smokestack, or an alley. It was pointed out that the alley was on the east side. There was evidence that the tree was not in the way. At Watters' direction Gillam attached a metal ladder on the west side of the scaffold nearest the charged wire. There was evidence from which it could be found that the ladder could as easily have been attached to either of the other sides of the scaffold.

The top of the completed scaffold was 33 feet and 4 inches above ground, 6 inches higher than the nearest charged wire. There was a clearance of 12 inches between the west side of the scaffold and the wire. While standing on the ladder, holding on with his hands, the back of Gillam's neck came in contact with the wire, causing 2,500 volts of electrical current to be diverted to his body. He sustained severe neck and back burns and his hands and parts of his arms were burned off.

Union Electric was aware of and had knowledge of the existence of the incinerator and smokestack when it built its line in 1943 and when it rebuilt its facilities in 1954. It knew or must be charged with knowledge that it owned and maintained a bare 2,500-volt electric wire at this location; that this wire was 6 feet 8 inches horizontally from the smokestack; that the wire would probably cause serious injury to any one who contacted it. Union Electric concedes in its brief that it 'constructively knew that in the maintenance of the smokestack someone at some time might be on a scaffolding or similar structure adjacent to it'; that Union Electric might constructively be charged with knowledge of this particular job, and that there were precautionary measures Union Electric could have taken, such as warning Gillam or installing 'Salisburys'--rubber hosing which serves as effective insulation for short periods of time.

Prior to the accident Union Electric was not informed by Magary or anyone acting for him, or otherwise actually notified, of the plan to erect this scaffold. Had it been notified Union Electric, in accordance with established policy, would have covered its lines with Salisburys. Union Electric's first knowledge came five hours after the accident, when Magary telephoned for assistance in order safely to remove the scaffolding. Union Electric then sent a

Page 19

line crew to the scene and covered the wires with Salisburys to enable the work to be finished and the scaffolding removed.

Gillam recalls having been at the site the day before the accident, but does not remember seeing wires or poles, and recalls...

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10 practice notes
  • Listerman v. Day & Night Plumbing & Heating Service, Inc., No. 8314
    • United States
    • Missouri Court of Appeals
    • 13 Noviembre 1964
    ...us, where joint tort-feasors are in pari delicto neither is entitled to indemnity from the other. Union Electric Co. v. Magary, Mo., 373 S.W.2d 16, 22(3); Johnson v. California Spray--Chemical Co., Mo., 362 S.W.2d 630, 633(2); Joshmer v. Fred Weber Contractors, Inc., Mo.App., 294 S.W.2d 576......
  • Missouri Pac. R. Co. v. Whitehead & Kales Co., No. 59906
    • United States
    • United States State Supreme Court of Missouri
    • 28 Abril 1978
    ...between concurrent or joint tortfeasors in pari delicto, except as provided by statute. E. g., Union Electric Company v. Magary, 373 S.W.2d 16, 22 (Mo.1963); Crouch v. Tourtelot, 350 S.W.2d 799, 803 (Mo. banc 1961); Berkson v. Kansas City Cable Ry. Co., 144 Mo. 211, 217, 45 S.W. 1119, 1120 ......
  • Western Cas. & Sur. Co. v. Shell Oil Co., No. 32286
    • United States
    • Court of Appeal of Missouri (US)
    • 21 Febrero 1967
    ...one, even though one may have been very much more negligent than the other." Union Electric Co. v. M. D. Magary Const. Co., Mo., 373 S.W.2d 16, 21; Crouch v. Tourtelot, supra; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 507--508. While plaintiff refers to that statement of ......
  • Krug v. Sterling Drug, Inc., No. 52098
    • United States
    • United States State Supreme Court of Missouri
    • 12 Junio 1967
    ...Mo., 378 S.W.2d 504; Ward v. City National Bank & Trust Co. of K.C., Mo., 379 S.W.2d 614; Union Electric Co. v. Magary, Mo., 373 S.W.2d 16; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh P. Co., Mo., 323 S.W.2d 788; Woods v. Juve......
  • Request a trial to view additional results
10 cases
  • Listerman v. Day & Night Plumbing & Heating Service, Inc., No. 8314
    • United States
    • Missouri Court of Appeals
    • 13 Noviembre 1964
    ...us, where joint tort-feasors are in pari delicto neither is entitled to indemnity from the other. Union Electric Co. v. Magary, Mo., 373 S.W.2d 16, 22(3); Johnson v. California Spray--Chemical Co., Mo., 362 S.W.2d 630, 633(2); Joshmer v. Fred Weber Contractors, Inc., Mo.App., 294 S.W.2d 576......
  • Missouri Pac. R. Co. v. Whitehead & Kales Co., No. 59906
    • United States
    • United States State Supreme Court of Missouri
    • 28 Abril 1978
    ...between concurrent or joint tortfeasors in pari delicto, except as provided by statute. E. g., Union Electric Company v. Magary, 373 S.W.2d 16, 22 (Mo.1963); Crouch v. Tourtelot, 350 S.W.2d 799, 803 (Mo. banc 1961); Berkson v. Kansas City Cable Ry. Co., 144 Mo. 211, 217, 45 S.W. 1119, 1120 ......
  • Western Cas. & Sur. Co. v. Shell Oil Co., No. 32286
    • United States
    • Court of Appeal of Missouri (US)
    • 21 Febrero 1967
    ...one, even though one may have been very much more negligent than the other." Union Electric Co. v. M. D. Magary Const. Co., Mo., 373 S.W.2d 16, 21; Crouch v. Tourtelot, supra; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 507--508. While plaintiff refers to that statement of ......
  • Krug v. Sterling Drug, Inc., No. 52098
    • United States
    • United States State Supreme Court of Missouri
    • 12 Junio 1967
    ...Mo., 378 S.W.2d 504; Ward v. City National Bank & Trust Co. of K.C., Mo., 379 S.W.2d 614; Union Electric Co. v. Magary, Mo., 373 S.W.2d 16; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499; McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh P. Co., Mo., 323 S.W.2d 788; Woods v. Juve......
  • Request a trial to view additional results

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