Bland v. IMCO Recycling, Inc.

PHILLIP R. GARRISON, Judge,

dissenting.

I concur in the result reached in the principal opinion except as it relates to the issue of whether a submissible case was made against IMCO Recycling, Inc. (“IMCO Recycling”). I believe that it was not, and respectfully dissent from that portion of the opinion holding otherwise.

Prior to October 1, 1995, Pittsburg Aluminum, Inc. (“Pittsburg”) and Marnor Aluminum Processing, Inc. (“Marnor”) were wholly owned subsidiaries of Metal Mark, Inc. (“Metal Mark”) which was, in turn, a wholly owned subsidiary of Alumar, Inc. (“Alumar”). On that date Alumar merged with IMCO Recycling of Illinois, Inc. (“IMCO of Ill.”), the wholly owned subsidiary of IMCO Recycling. Consequently, Metal Mark became the wholly owned subsidiary of IMCO of Ill. On June 3, 1996, Marnor merged with Metal Mark, which was the surviving corporation.

The principal opinion refers to the decision to close the Pittsburg plant that had been operated in Pittsburg, Kansas by Pittsburg. That decision was made at some point after Alumar merged with IMCO of Ill. According to the president of Metal Mark, Jonathan Markle, that decision was made by the “management of IMCO.” At that time, however, there were two corporate entities that could have been known as IMCO, i.e., IMCO Recycling and IMCO of Ill. Mr. Markle did not specify which IMCO he was referring to. The same was true of Mr. DuFor, who said that the decision to close the Pittsburg plant was made by the management of IMCO Recycling. This could have referred to IMCO Recycling, Inc. or IMCO Recycling of Illinois, Inc.1 None of this testimony, however, specifically or necessarily dealt with the later decision to move the furnace to the Marnor plant in Sikeston.

Mr. Markle also said that when the Pittsburg plant was closed “we decided to move the plant — move the furnace to Sike-ston to hold it there.” When asked who “we” was, he said “[t]he we was myself in coordination with Dallas.” He explained that at that time, Metal Mark, which was the parent corporation of Pittsburg, was *686the wholly-owned subsidiary of IMCO Recycling in Dallas;2 that he was accountable and responsible to IMCO Recycling in Dallas for the performance of Metal Mark; and that when he made major capital decisions, he typically talked with them about “yes or no.” In this instance, he said that he suggested to them that it would be appropriate to move that furnace.

First, I believe that this testimony was insufficient to permit the trier of fact to determine the extent, if any, of IMCO Recycling’s involvement in the decision to move the furnace. While IMCO Recycling acknowledges in its brief that the reference to “Dallas” in Mr. Markle’s testimony that he made the decision “in coordination with Dallas” refers to “presumably ... someone at IMCO Recycling, Inc.” there is no indication about what “coordination” meant. Mr. Markle did not explain what he meant by that phrase. In particular, there is no indication whether he merely consulted with “Dallas”; whether he made the decision and told “Dallas” about it later; whether “Dallas” merely consented to a decision he had made as president of Metal Mark; whether he asked for and received authority from “Dallas” for permission to move the furnace, and if so whether the person consulted had authority from IMCO Recycling to make such a decision; or whether he was told by someone at “Dallas” to move the furnace, and if so, if that person had authority to do so. While Mr. Markle may have “talked” to IMCO Recycling about major capital decisions, there is no indication that it made the ultimate decision or that this situation was one that would fit in that category. The fact that he suggested to IMCO Recycling that it would be appropriate to move the furnace does not necessarily indicate that IMCO Recycling was the supplier. In fact, Mr. Mecom, who is corporate counsel and keeps all the corporate records of IMCO Recycling and its subsidiaries, said that “in general [Mr. Markle] would keep people in like operating side [sic] of the business in Dallas informed of what he was doing.”

To reach the conclusion espoused by Plaintiff that IMCO Recycling supplied the furnace requires the inference from Mr. Markle’s testimony that IMCO Recycling made the decision and directed that the furnace be moved to Marnor. As indicated above, that testimony is susceptible to several equally plausible conclusions, some of which would indicate that IMCO Recycling directed the move of the furnace, and some that it did not.

Plaintiff had the burden of proving all facts and circumstances essential to submission of the negligence charged. Michaud v. Burlingame, 490 S.W.2d 680, 684 (Mo.App.Spfd.1973). A case is not to be submitted unless each and every fact essential to liability is predicated on legal and substantial evidence. Shackelford v. West Central Elec. Co-op., Inc., 674 S.W.2d 58, 63 (Mo.App. W.D.1984). In determining whether a submissible case is made, we view the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiffs case and disregard all evidence to the contrary. Bond v. California Comp.l and Fire Co., 963 S.W.2d 692, 696 (Mo.App. W.D.1998). Each and every element essential to establish liability must be supported by substantial evidence. Id. Substantial evidence is competent evidence from which a trier of fact can reasonably decide the case. Id. No fact essential to submissibility can be inferred in the absence of a substantial evidentiary basis. Schubiner v. Oppenheimer Indus., Inc., *687675 S.W.2d 63, 78 (Mo.App. W.D.1984). A plaintiff can carry his burden by circumstantial evidence, which is broadly defined as “evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact does exist.” Bridgeforth v. Proffitt, 490 S.W.2d 416, 422 (Mo.App.Spfd.1973). Liability, however, cannot rest on guesswork, conjecture, or speculation beyond inferences that can reasonably decide the case. Mathis v. Jones Store Co., 952 S.W.2d 360, 366 (Mo.App. W.D.1997); Bond, 963 S.W.2d at 696; Schubiner, 675 S.W.2d at 78. An inference is a logical a priori conclusion drawn by reason from proven or admitted facts. Wright v. Over-The-Road, 945 S.W.2d 481, 495 (Mo.App. W.D.1997). It is more than, and cannot be predicated on, mere surmise or conjecture. Id. It is not a possibility that a thing could have happened or an idea founded on probability that a thing may have occurred. Id. While we liberally view the legitimacy of inferences in the plaintiffs favor, such liberal view does not include speculative free leaps to the desired inference. Id. “If two or more inferences may be deducted of equal reasonableness, then there is no inference that may be indulged without mere speculation.” Id. See also Mathis, 952 S.W.2d at 360(“We will not supply missing evidence or give the plaintiff the benefit of unreasonable, speculative, or forced inferences.”); Hurlock v. Park Lane Med. Ctr., Inc., 709 S.W.2d 872, 880 (Mo.App. W.D. 1985)(“where evidence equally supporting two inconsistent and contradictory factual inferences as to ultimate and determinative facts is solely relied on to make a submissible case, there is a failure of proof as the case has not been removed from the tenuous status of speculation, conjecture and surmise.”). The determination of whether or not there is sufficient evidence to submit an issue to the jury is a legal question and not an exercise of judicial discretion. Shackelford, 674 S.W.2d at 63. Consequently, such a determination is a judicial function. Hurlock, 709 S.W.2d at 880; Rossmann v. G.F.C. Corp., 596 S.W.2d 469, 472-73 (Mo.App. E.D.1980).

In this case I believe, from the sparse evidence presented, that Plaintiff presented insufficient evidence concerning the extent of IMCO Recycling’s involvement in the decision to move the furnace to the Marnor plant in Sikeston to remove it from the realm of speculation, surmise, guesswork, and conjecture. Concurrently with that conclusion, I believe that the evidence was insufficient to establish that IMCO Recycling was a “supplier” of the furnace, one of the necessary elements of Plaintiffs case. This furnace belonged to Pittsburg, which was a wholly owned subsidiary of Metal Mark, which was a wholly owned subsidiary of IMCO of Ill., which was a wholly owned subsidiary of IMCO Recycling. IMCO Recycling was three corporate entities removed from Pittsburg, the owner of the furnace. The fact that IMCO Recycling owned the stock of IMCO of Ill., which owned the stock of Metal Mark, which owned the stock of Pittsburg is, in itself, insufficient to establish that IMCO Recycling supplied the furnace to the Marnor plant. Generally, two different corporations are treated as two different persons, even if one corporation is the sole shareholder of the other. Hefner v. Dausmann, 996 S.W.2d 660, 664 (Mo.App. S.D. 1999). A parent corporation is not responsible for the acts of its subsidiary except where the wronged party pierces the corporate veil. Id. “Two separate corporations may be treated as one only where there is such dominion and control that the controlled corporation has no separate mind, will or existence of its own and is but an alter ego for its principal. Such dominion and control must be established by evidence, and is not presumed.” Id. Absent *688evidence that the controlled corporation has no separate mind, will or existence of its own, the parent corporation is not liable for the acts of the subsidiary. Id. No attempt was made in the instant case to establish that Metal Mark or Pittsburg was the alter egos of IMCO Recycling.

The issue of who qualifies as a “supplier” in a negligence action for supplying a dangerous instrumentality has surprisingly received little reported judicial attention beyond the obvious cases involving an immediate seller, lessor, donor, or lender. Section 388 of the Restatement (Second) of Torts (1965) concerns liability of “[o]ne who supplies directly or through a third person a chattel ...” Similar language appears in Section 392 entitled “Chattel Dangerous for Intended Use.” Comment c of Section 388 is titled “Persons included as ‘suppliers’ ” and references “any person who for any purpose or in any manner gives possession of a chattel for another’s use.” It also says that “[tjhese rules, therefore, apply to sellers, lessors, donors, or lenders, irrespective of whether the chattel is made by them or by a third person. They apply to all kinds of bailors, ...” Restatement (Second) of Torts Section 388, Comment c (1965). The principal opinion correctly notes that Comment c to Section 392 is titled “Ownership of chattel immaterial,” but it should be noted that the comment proceeds to say:

In order that the rule stated in this Section shall apply, it is not necessary that the chattel be owned by the one who supplies it. It may be leased to him or borrowed by him. It is enough that he has had possession or control of it for the purpose of using it in connection with his business, and that he has supplied it for such purpose....

In the instant case, the furnace was owned and possessed by Pittsburg, an entity separate from IMCO Recycling.3 There is no evidence that IMCO Recycling ever had possession of it, or, for that matter, that it had ever been seen by one of its employees. In fact, Mr. Mecom testified that IMCO Recycling never had possession of the furnace and that it was supplied to the Marner facility by Pittsburg. This is consistent with the bill of lading showing Pittsburg as the shipper.

Is the possibility that IMCO Recycling may have concurred in a decision made by the president of one of its subsidiaries to deliver the furnace to the Marnor plant sufficient to impose liability on IMCO Recycling as a supplier? The same could be asked if IMCO Recycling was merely made aware of the decision. I would not so hold. To do so would impose liability on a parent corporation (a separate entity) under any number of factual scenarios that surely were never intended by the Restatement. It would also ignore the fact that, in the absence of a piercing of the corporate veil, the corporations are separate and distinct. I believe to so hold is an improper application of the concept of “supplier” under the Restatement.

A few cases from other jurisdictions are instructive on this issue. For instance, in Bloemker v. Detroit Diesel Corp., 720 N.E.2d 753, 755 (Ind.App.1999), the issue was whether Detroit Diesel and North Manchester Foundry, Inc. were suppliers under Sections 388 or 392 of the Restatement (Second). Detroit Diesel owned a pattern (a master model used to make a mold into which molten iron is poured to form a casting). While making modifications to a pattern, it exploded and injured the plaintiff. The pattern was owned by Detroit *689Diesel but was in the possession of North Manchester. When Detroit Diesel needed the product created through use of the pattern, it would contact its supplier, who, in turn, would contact North Manchester. North Manchester would make the product and deliver it to Detroit Diesel’s supplier, which would perform finish work on the product before delivering it to Detroit Diesel. Detroit Diesel’s supplier, without Detroit Diesel’s knowledge, requested plaintiffs employer to modify the pattern. The plaintiff contended that Detroit Diesel was a supplier because it had control over the pattern, power to exercise and direct authority over it, and power to determine who could use the pattern. Id. at 758. The court held that Detroit Diesel was not a “supplier” of the pattern under Sections 388 or 392 of the Restatement (Second) since it was merely a technical owner of the pattern, and never possessed nor maintained control over it. Id. at 761.

Papastathis v. Beall, 150 Ariz. 279, 723 P.2d 97 (App.1986), is another case involving the application of Section 388 of the Restatement (Second) to determine whether Southland Corp. was a supplier of racks for the display of Coca Cola in “7-11” stores. A can fell from the rack and struck the decedent in the head. It was contended that Southland was a supplier of the racks, which were alleged to be defective, because it had inspected, suggested and endorsed the racks to its franchisees. The racks themselves were owned by Coca Cola and were actually delivered to the franchisees by it. The court held that Southland was not a supplier under the Restatement, saying:

Since Coca-Cola at all times owned the racks and Coca-Cola gave possession to the franchisee, Southland cannot possibly fit within the above-mentioned categories. Southland’s connection to these racks was in inspecting, suggesting and endorsing these racks to its franchises. In effect Southland was the facilitator of this arrangement. Southland did, however, voluntarily undertake to request that franchisees install the racks in their stores.

Id. at 99-100.

Like Southland, under the evidence here, IMCO Recycling may or may not have directed the delivery of the furnace to the Marnor plant. It is just as likely under the evidence, that its only involvement was to receive from Mr. Markle his decision to move the furnace or to consent to his suggestion that it be done. Under that scenario, its involvement could at most be described as a facilitator, something Pa-pastathis holds is insufficient.

In United States v. Page, 350 F.2d 28, 32-33 (10th Cir.1965), the court refused to hold the United States liable as a supplier of a defective chattel where the government owned the mold in question but never possessed it or exercised control over it. In referring to Section 392 of the Restatement, the court said that “[t]he rule there stated is limited to circumstances where the chattel is ‘supplied’ by the person sought to be held liable, and was at one time in its control and possession.” Id. at 33. See also Dooley v. Parker-Hannifin Corp., 817 F.Supp. 245 (D.R.I.1993)(refusing to impose liability on the owner of a defective die which was, and always had been, in the possession of another party where the court noted that the owner did not engage in any transaction remotely resembling a sale, did not place the die in the stream of commerce, and never had possession of the due and was in no position to learn of or guard against any defects); and White v. Chrysler Corp., 421 Mich. 192, 364 N.W.2d 619, 623 (1984).

Based on the above, I would reverse the judgment against IMCO Recycling.

. It is stated in the principal opinion that IMCO of Ill. never had its primary place of business or management personnel in Dallas. This apparently refers to testimony by Mr. Markle, referred to infra, that he made the decision to transfer the furnace "in coordination with Dallas.” There was no evidence about whether IMCO of Ill. had an office or management personnel in Dallas. As indicated infra, the burden of proof was on Plaintiffs. In any event, Mr. Markle's testimony ("in coordination with Dallas”) was in response to questions about the transfer of the furnace and not the decision to close the Pittsburg plant. The decision to close the Pittsburg plant is not, in my view, determinative of who "supplied” the furnace to the Marnor plant in Sikeston.

. Under the undisputed facts here, Metal Mark was the wholly owned subsidiary of IMCO of ill.

. Although the Pittsburg plant was closed, there was evidence indicating that Pittsburg Aluminum, Inc. may still be in existence.