Weeks-Maxwell Const. Co. v. Belger Cartage Service, Inc.

• Decision Date: 05 December 1966
• Docket Number: WEEKS-MAXWELL,No. 24360,24360
• Citation: 409 S.W.2d 792
• Parties: CONSTRUCTION COMPANY, Inc., Appellant, v. BELGER CARTAGE SERVICE, INC., Respondent.
• Court: Missouri Court of Appeals

Page 792

409 S.W.2d 792

WEEKS-MAXWELL CONSTRUCTION COMPANY, Inc., Appellant, v. BELGER CARTAGE SERVICE, INC., Respondent.

No. 24360.

Kansas City Court of Appeals, Missouri.

Dec. 5, 1966.

Henry G. Eager, James H. McLarney, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for appellant.

William W. Shinn, Donald K. Hoel, Robert K. Waldo, Kansas City, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel, for respondent.

MAUGHMER, Commissioner.

This is a suit for damages allegedly arising from the negligent operation of a heavy duty crane. There is little dispute as to the facts. The plaintiff, Weeks-Maxwell Construction Company, is a general contracting company, located in Independence, Missouri, and engaged principally in the construction of sewer plants and hospitals in an area within a sixty mile radius of Kansas City, Missouri. In 1961, it contracted with the City of Independence, Missouri to construct the Sugar Creek Sewage Disposal Plant. Weeks-Maxwell was the general contractor for the whole job and was responsible for the property during the entire building period and until the finished construction was turned over to and accepted by the City of Independence.

As is usual in such matters, the plaintiff subcontracted various portions of the job. To the Kansas City Concrete or Castings Company went a subcontract to precast a large concrete beam, deliver it to the project and position it across the top of a large circular tank. This beam was approximately 55 feet long and weighed over 15 tons. The Castings Company in turn subcontracted the job of placing this beam in position to John Haggard, Jr., d/b/a Haggard Heavy Hauling. On Friday, August 17, 1962, two things became apparent to Haggard. First, the beam should be positioned on Monday, August 20, 1962, and second, none of Haggard's large heavy duty cranes would be available for use on that date. In the past in such emergencies, Haggard had used cranes belonging to the defendant Belger Cartage Service, Inc., and Belger had on occasion used Haggard's equipment. In any event, on Friday, August 17, John Haggard called Belger by telephone and talked with Albert Schons, crane operator, and made arrangements for Belger to have a Bay City 35 ton crane on the job on the following Monday morning. Gene Larson, Haggard's foreman on the job, knew and had worked before with one of Belger's crane operators, Virdus (Bill) Hurst, so it was requested that Hurst come also. Hurst, James Henak, an oiler, and the crane arrived on Monday morning. There is some little dispute as to whether the crane was a 35 ton type or not. It really makes little difference.

According to custom, Mr. Hurst brought with him Belger's written 'work order' and it was signed by Gene Larson, foreman for Haggard, the lessee. In part it contained the following statements:

'7. The lessee understands and agrees that all control of and any rights of control over personnel and equipment furnished are expressly relinquished and surrendered by Belger Cartage Service, Inc., and assumes the exclusive right to supervise and control them during the continuance of this agreement.

'The lessee specifically agrees that there is a complete surrender of control in regard to the aforementioned employees and equipment and not simply a division of control. This lease is upon the agreement by Belger Cartage that no personnel may be replaced or substituted by Belger Cartage except at the direction and with the approval of the lessee and that the lessee shall have the right to control all of the details of operation of the equipment and personnel furnished.

'The person signing this agreement specifically represents that he has the right and authority to agree to the foregoing terms. Any disputes or disagreements concerning the right of control over personnal or equipment furnished shall be resolved in favor of such control being in the lessee'.

This agreement described the equipment furnished as a 35 ton crane and named the personnel as 'Hurst and J. Henak'.

When Hurst arrived at the job site, he, Gene Larson and Henak set the crane in position. The ground was loose although it had been watered down and run over by a caterpillar, but it was not solid and therefore Mr. Larson secured some timbers to 'shore up' around the crane and its outriggers. Hurst operated the crane. Larson was up on a wall, giving directions, largely by hand motions and was in charge. Another Haggard employee was on the ground helping direct. The large beam was picked up, but before it could be placed in position the shoring timbers or the soft ground, or both, gave way, and the crane began to tilt. Mr. Hurst then dropped the beam. It was generally agreed he had no other wise alternative. The beam fell on part of the uncompleted construction, and under the agreement of all parties, caused damages of.$5,178.93.

Thereafter, on May 8, 1963, an 'assignment agreement' was entered into between Haggard Heavy Hauling, Kansas City Castings Company and Weeks-Maxwell Construction Company, Inc. The subject matter of the agreement was the accident of August 20, 1962, which we have just described. Under its terms Haggard agreed to pay to Castings Company and to Weeks-Maxwell the sum of.$5,178.93, the amount agreed upon as the damage done to the uncompleted sewage treatment plant when the 15 ton beam was dropped and fell. This payment concededly was made by Haggard and all of it actually went to plaintiff, the prime contractor, which was ultimately liable to repair the damaged construction. This agreement also recited assignment and subrogation to Haggard of all claims which Castings Company and Weeks-Maxwell might have against Belger Cartage Service for damages arising from the accident.

Chronologically, the next event occurred on June 18, 1963, when Weeks-Maxwell and Kansas City Concrete Company filed the first petition in the present action against Belger Cartage Service. The Kansas City Concrete Company or Castings Company was early and voluntarily dismissed as a party plaintiff as it had no interest in the subject matter of the contest.

Knowledge that whatever claims Weeks-Maxwell and Kansas City Castings had against Belger had been assigned to Haggard having come to the attention of defendant, a motion to dismiss was filed on the ground that Haggard, a necessary party and the real party in interest, was not joined. Thereafter, on February 8, 1965, Haggard reassigned to Kansas City Concrete and Weeks-Maxwell the cause of action for the sole purpose of controlling and distributing the net proceeds after expenses' to Haggard, which had already paid the full amount of the damages.

Defendant asserted before the trial court and before trial that even if Belger were negligent as plaintiff claimed, then at most Haggard and Belger were joint tort-feasors, and Haggard, having paid the damage claim in full, could not either in his own name or in the name of his assignee, maintain a suit or make a recovery against his joint tort-feasor. The trial court did not adopt this view of the law, and the case was apparently tried on the theory that plaintiff Weeks-Maxwell...