Union Elec. Co. v. Magary

• Decision Date: 09 December 1963
• Docket Number: No. 49933,No. 1,49933,1
• Parties: UNION ELECTRIC COMPANY, a Corporation, Appellant, v. M. D. MAGARY, d/b/a M. D. Magary Construction Company, and Chester Watters, Respondents
• Court: Missouri Supreme Court

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.

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 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 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 nothing on the date of the accident except that he picked up his co-worker early in the morning. He remembers that he was to do this job, but does not recall Watters' instructions or how in fact he did it.

The negligence with which Gillam charged Union Electric was fourfold: maintenance of uninsulated transmission wires; failure to provide any shield or guard at or near the wires so as to prevent contact with persons working in close proximity; failure to warn plaintiff of the presence and location of the wires and that they were uninsulated; causing and permitting uninsulated and unguarded wires to be and remain in close proximity to the smokestack when it knew, actually or constructively, that in the care and maintenance of the smokestack workmen would be in close proximity to the wires.

The original third-party petition attributed Gillam's injuries to the 'gross, active and primary negligence' of Watters, acting as the authorized superintendent for Magary, in instructing and directing Gillam to erect the scaffold and ladder on the west side of the smokestack, adjacent to the 2,500-volt wire, with knowledge, actual or constructive, that Gillam would probably come in contact with the wire and sustain injuries. Magary was charged with Watters' negligence, as principal. Union Electric denied its own negligence but alleged that if it should be held liable to Gillam its negligence was passive and secondary and that third-party defendants would be liable over to Union Electric for the amount of such recovery.

Following the settlement and dismissal of Gillam's suit Union Electric filed its first amended third-party petition, realleging the same preliminary facts, adding the facts relating to the agreement between Union Electric and Gillam to settle his claim for $100,000, which was alleged to be a reasonable settlement, and the dismissal of Gillam's claim. Three additional charges of 'gross, active and primary' negligence were made against third-party defendants: failure to provide Gillam with a safe place to work, failure to notify Union Electric of the plan to do work in the location of the transmission line, and failure to warn and advise Gillam that they had taken no action to make his work area safe. Union Electric alleged that it had only constructive knowledge of the possibility of work on or near the smokestack and 'is chargeable merely with inactive, passive and secondary negligence,' which it stated either existed in fact or was a legally submissible issue. Five reasons were alleged to justify Union Electric's failure to call...