Welch v. Hesston Corp.

• Decision Date: 06 July 1976
• Docket Number: 37091,Nos. 37087,s. 37087
• Citation: 540 S.W.2d 127
• Parties: Alvin L. WELCH, Plaintiff-Respondent, v. HESSTON CORPORATION and Alvin Adams, Jr., Defendants-Appellants. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 127

540 S.W.2d 127

Alvin L. WELCH, Plaintiff-Respondent, v. HESSTON CORPORATION and Alvin Adams, Jr., Defendants-Appellants.

Nos. 37087, 37091.

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

July 6, 1976.

Motion for Transfer Denied Aug. 18, 1976.

Schaper & Woods, Bowling Green, Kortenhof & Ely, Joseph M. Kortenhof, St. Louis, for defendants-appellants.

McIlroy & Millan, Bowling Green, for plaintiff-respondent.

McMILLIAN, Judge.

Defendants appeal from a jury verdict awarding $10,000 to plaintiff for personal injuries sustained while fighting a fire in a haystacker. We reverse.

Plaintiff submitted his case against Adams on a theory of negligence in the operation of a tractor used to pull the haystacker. Liability of Hesston Corporation (hereinafter referred to as Hesston) was founded on a theory of liability arising from a defect in the design and manufacture of the haystacker. On appeal both defendants allege that the trial court erred in denying their respective motion for directed verdicts.

Defendant Adams suggests that plaintiff should have been found to have assumed the risk as a matter of law. Defendant Hesston contends that no jury submissible case was made against it because plaintiff failed to introduce evidence to establish the cause of the fire or any defect in design of the haystacker. Both defendants contend that plaintiff's recovery should have been precluded because, as a matter of law, any conduct of the defendants was not the proximate cause of plaintiff's injuries. It is our evaluation and approval of this proximate cause contention of the defendants that prompts us to reverse the decision of the trial court.

In light of the basis for our reversal, the pertinent facts of this controversy become quite simple. Defendant Hesston designed the haystacker machine. Arguably, the design of the machine was defective in that because of a short front-connecting hitch the wheels of a dual-wheeled tractor of a kind often used to pull the haystacker would rub against a protective shield on the haystacker. Resulting friction could cause a fire. Defendant Adams had purchased a haystacker and was using it in conjunction with a dual-wheeled tractor to stack hay on a farm near Eolia, Missouri. Adams' use of a dual-wheeled tractor coupled with repeated sharp turns of the tractor resulted in a fire in the haystacker.

Since the regular fire department was unavailable, plaintiff, a retired volunteer fireman, was recruited to bring his truck with its 1000 gallon water tank to fight the fire. Plaintiff doused the haystacker with approximately 500 gallons of water putting out all of the flames. Suspecting, however, the hay inside the stacker would continue to smoulder and eventually begin to burn again, plaintiff suggested that chains be put around the hay and the hay thereby pulled out of the stacker by use of the tractor. Although the stacker was at the time still full of steam and smoke, plaintiff and another man climbed into the stacker to connect the chains. Plaintiff fell through a hole into the hay which was still burning beneath the surface. His right leg was severely burned.

As a preliminary matter we must dispose of plaintiff's contention that defendant Hesston has not preserved the proximate cause contention for appellate review. While the contention was not specified in Hesston's motion for a new trial, we feel that the issue was properly brought to the attention of the trial court by reference to it in Hesston's motions for a directed verdict at the close of plaintiff's case and at the close of all of the evidence. Identification of an issue in a motion for a directed verdict is sufficient to preserve the issue for appellate review, V.A.M.R. 78.07 and 72.01. In the motions for a directed verdict, Hesston contended that plaintiff should be found guilty of contributory negligence as a matter of law. This was sufficient preservation because the defense that Hesston and Adams are raising is, in reality, the Missouri 'rescue doctrine'. As will be discussed subsequently, the Missouri 'rescue doctrine' has two variants. One variant explains the doctrine in terms of proximate causation; the other treats the doctrine as one relating to contributory negligence as a matter of law. By Hesston's motion for a directed verdict it brought the second variant of the doctrinal defense to the attention of the trial court.

The Rescue Doctrine--in a long line of Missouri cases there has emerged a beneficient doctrine known as the 'imminent peril' or 'rescue' doctrine 'under which it is held not negligence to knowingly and voluntarily place one's self in a position where he is liable to receive a serious injury when the exposure is for the purpose of saving human life . . .' McConnell v. Pic-Walsh Freight Co., 432 S.W.2d 292, 299 (Mo.1968). The rescuer will be allowed to recover against the originally negligent wrongdoer for injuries sustained in the rescue attempt if the jury does not find that the rescuer's conduct was rash or reckless, Hammonds v. Haven, 280 S.W.2d 814, 816 (Mo.1955). ¹

Unlike a majority of other jurisdictions, ² Missouri has extended the benefits of this doctrine only to rescuers of persons and not to rescuers of property, Boyd v. Terminal R.R. Ass'n of St. Louis, 289 S.W.2d 33, 38 (Mo.1956); Johnson v. Terminal R.R. Ass'n, 320 Mo. 884, 8 S.W.2d 891, 893(Mo. Banc 1928); Eversole v. Wabash R. Co., 249 Mo. 523, 155 S.W. 419, 424--5 (Mo.1913) and Ellmaker v. Goodyear Tire & Rubber Co., 372 S.W.2d 650, 657 (Mo.App.1963).

In Missouri a rescuer of property rather than being afforded the special protection given to a rescuer of persons is barred as a matter of law from recovering against the original wrongdoer under one of two theories, boyd v. Terminal R.R. Ass'n of St. Louis, supra. Sometimes the bar to recovery is phrased in terms of a lack of proximate cause, that is, the rescuer's act is found to be the legally efficient cause of injury superseding the negligence of the defendant, Logan v. Wabash Ry. Co., 96 Mo.App. 461, 70 S.W. 734 (1902); McManamee v. Missouri Pac. Ry. Co., 135 Mo. 440, 37 S.W. 119, 121 (1896) and Johnson v. Terminal R.R. Ass'n, supra, 8 S.W.2d at 895. Sometimes the plaintiff is denied recovery because an attempt to rescue imperiled property by a method endangering the safety of the rescuer is deemed to be contributory negligence as a matter of law, Eversole v. Wabash R. Co., supra, 155 S.W. at 425. Under either...