Zuber v. Clarkson Const. Co., 42842
| Citation | 363 Mo. 352,251 S.W.2d 52 |
| Decision Date | 14 July 1952 |
| Docket Number | No. 42842,No. 1,42842,1 |
| Parties | ZUBER et al. v. CLARKSON CONST. CO |
| Court | United States State Supreme Court of Missouri |
Arthur B. Taylor, Independence, Walter A. Raymond, Kansas City, for appellants.
Tom J. Stubbs, Jack G. Beamer, Stubbs, McKenzie, Williams & Merrick, Kansas City, for respondent.
VAN OSDOL, Commissioner.
Plaintiffs, the infant children of John Stanley Zuber, deceased, instituted this action against defendant seeking the recovery of $15,000 for the wrongful death of their father.
Defendant, Clarkson Construction Company, filed its motion to dismiss plaintiffs' petition on the ground the petition failed to state a claim upon which relief could be granted against defendant. The trial court sustained defendant's motion and entered a final judgment of dismissal. Plaintiffs have appealed.
Plaintiffs in stating their claim alleged in their petition that on and prior to May 29, 1949, the defendant was engaged in constructing an earthen embankment or levee on the south bank of the Missouri River in the vicinity of 1700 North Monroe in Kansas City; that in doing this work defendant owned, used and operated certain large diesel or other motor-driven, earth-moving tractors and trailers known as 'Euclid Carry-alls'; that at the end of the day's work defendant customarily and for many days parked the Carry-alls on the levee or some public place adjacent thereto with the machinery in gear and the switches and ignitions unlocked, with fuel in the tanks, and with the brakes off and not in operating condition ready to be easily put in operation; that each evening curious adult persons gathered around the machinery and inspected it and some of the persons started the tractors and operated them up and down the levee to demonstrate how they worked and that such was the usual and customary proceeding each evening; that the defendant knew, or by the exercise of ordinary care could and should have known, prior to May 29th, of such operation of the machines by members of the public and dangers incident thereto; that at the close of the day's work on May 29th defendant parked two of its Carry-alls, numbers 712 and 101, and left them unattended in a public place on or near the levee; that the Carry-alls at the time and place were left in gear, with the ignition switches unlocked and the self-starters ready to operate but with the brakes off and not in an operating condition; that about 4:30 in the afternoon of May 29th and after the machines had been so parked and left unattended in the stated condition, plaintiffs' decedent, John Stanley Zuber, and one James W. Canterbury were attracted to the machines; that, while plaintiffs' decedent was standing near the left rear tractor wheel of defendant's Carry-all No. 101 which was then stationary, Canterbury started defendant's Carry-all No. 712 and drove it forward toward the north and upon and over plaintiffs' decedent thereby crushing him and inflicting upon him body bruises and internal injuries from which he died almost immediately thereafter; that said injuries and death of plaintiffs' decedent were directly caused by the negligence of the defendant as further specified in the petition.
In determining if a petition states a claim or cause of action, the averments of the petition are to be given a liberal construction, according the averments their reasonable and fair intendement--fair implication should be indulged from the facts stated. So considered, a petition should be held sufficient if its averments invoke substantive principles of law which entitle plaintiff to relief. A petition is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact. Boyer v. Guidicy Marble, Terrazzo & Tile Co., Mo.Sup., 246 S.W.2d 742; Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S.W.2d 25; Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; Section 509.250, RSMo 1949, V.A.M.S.
Plaintiffs-appellants contend their petition states facts imposing the duty upon defendant to take precautions to protect decedent from harm; that defendant was negligent in failing to discharge its duty; and that, as a direct and proximate result of defendant's negligence, plaintiffs' decedent was fatally injured. Plaintiffs-appellants urge that defendant's earth-moving tractors and trailers were left in gear in a public place with ignition switches unlocked and with inoperative brakes; and that defendant knew or should have known that on previous evenings curious people had gathered in this public place and operated the machines up and down the levee. In such circumstances, plaintiffs-appellants say, defendant owed plaintiffs' decedent the duty, and was negligent in its duty, to take appropriate measures to protect him from danger of the machines being started and operated by persons, some of whom no doubt were untrained in the control and the operation of the machines. Plaintiffs-appellants further urge defendant's negligence was the proximate cause or a concurring proximate cause, and the act of Canterbury in starting the Carry-all did not break the causal connection between defendant's negligent conduct and the injury.
Defendant-respondent asserts plaintiffs' petition fails to state a claim or cause of action, and the trial court correctly entered a judgment of dismissal. Defendant-respondent contends that it had no duty to protect plaintiffs' decedent from injury caused by the intentional or negligent act of a responsible third person, Canterbury, and, having no such duty, defendant was not guilty of negligence. Defendant-respondent says, its Carry-alls, while heavy and powerful, are nothing more than large motor trucks and not inherently dangerous in any circumstances; and defendant could not be reasonably said to have had reason to foresee that intermeddlers would unlawfully appropriate the machines and negligently injure others. But, defendant-respondent says, if it is determined that defendant had such a duty, the causal connection between defendant's alleged negligence and the injury was broken by the act of Canterbury--which act of Canterbury became the intervening efficient cause of the injury.
The parties, appellants and respondent, upon this appeal have cited many cases treating with factual situations wherein defendants, owners or operators of automobiles or motor trucks, had left their motor vehicles unattended and with ignition switches and starting equipment ready for use in circumstances in which the reviewing courts have said the defendants should or should not have foreseen that the vehicles would be started and driven by third persons, and in which cases the courts had varying views in the varying circumstances of the respective c...
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