Fowler v. Park Corp.

DONNELLY, Judge,

dissenting.

Appellant Park Corporation operates a railroad industrial yard where it provides railcar switching services to its tenants. On October 2, 1978, Park placed a newly purchased engine in operation at the industrial yard. From October 2, 1978, until October 10, 1978, Park operated the engine and provided switching services to its tenants during the daytime. During this same period, St. Louis Railcar Repair, a wholly owned subsidiary of Park and one of its tenants at the industrial yard, borrowed and operated the engine at night.

Respondent Herbert J. Fowler, Jr., was employed by Railcar Repair. On the night of October 10, 1978, Fowler was sandblasting the inside of a “hopper” car. On that same night two other Railcar Repair employees, Michael DeHart and Joseph Mitán, were using the borrowed engine to switch cars for Railcar Repair. They inadvertently coupled onto the “hopper” car on which Fowler was working and moved it several hundred feet. The unfortunate result was that Fowler was thrown underneath the “hopper” car and both of his legs were severed from his body.

Fowler filed suit against Park, asserting (1)that the two Railcar Repair employees conducting the switching operations were “agents” of Park, and (2) that Park negligently entrusted the engine to them. The jury returned a verdict for Fowler and against Park for $6,000,000.00.

Fowler submitted his case to the jury on alternative theories of agency and negligent entrustment. It is settled in Missouri that a “jury should not be instructed on a theory of recovery * * * not supported by the evidence and that any such submission, whether in the conjunctive or disjunctive, * * * is reversible error.” MAI 3rd [1981 § 1.02, at 8]; Hardy v. St. Louis-San Francisco Railway Co., 406 S.W.2d 653 (Mo.1966).

In Evans v. Allen Auto Rental and Truck Leasing, Inc., 555 S.W.2d 325, 326 (Mo. banc 1977), this Court held that the elements which must be shown in order to invoke the doctrine of “negligent entrustment” are:

(1) that the entrustee is incompetent by reason of age, inexperience, habitual recklessness or otherwise;

(2) that the entrustor knew or had reason to know of the entrustee’s incompetence;

(3) that there was an entrustment of the chattel; and

(4) that the negligence of the entrustor concurred with the conduct of the entrus-tee as a proximate cause of the harm to plaintiff.

There is no evidence in the record that any Park official knew of the operation of the engine by DeHart and Mitán. In this circumstance, (2), (3), and (4) of the Evans elements are missing. The giving of the “negligent entrustment” instruction was prejudicial error.

The principal opinion dismantles further the law of torts constructed by our predecessors. See also Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881 (Mo. banc 1983) and Johnson v. Pacific Intermountain Express Co., 662 S.W.2d 237 (Mo. banc 1983). It evidences again an abandonment of the traditional common law process and the adoption of a model which “would legitimate the use by a judge of his individual feeling as the standard by which he would decide [law] questions.” Donnelly, The State of the Judiciary in Missouri-1982, 3 St. Louis U.Pub.L.Forum 101 (1983). See R. Bridwell and R. Whit-ten, The Constitution and the Common *762 Law 14 (Lexington, Mass.: Lexington Books, 1977).

I have no taste for judicio-political sub-jectivism. It serves to impose “WILL instead of JUDGMENT.” The Federalist, No. 78. '

I respectfully dissent.