Kipp v. Oyster

• Decision Date: 07 December 1908
• Parties: JOHN L. KIPP, Appellant, v. DAVID OYSTER, Respondent
• Court: Kansas Court of Appeals

114 S.W. 538

133 Mo.App. 711

JOHN L. KIPP, Appellant, v. DAVID OYSTER, Respondent

Court of Appeals of Missouri, Kansas City

December 7, 1908

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

Judgment affirmed.

Ward Hadley & Neel for appellant.

(1) Where there is some evidence that the relation of independent contractor does not exist between the owner and employee, or where the alleged contract of employment is oral, then the question of whether or not such independent contractor relationship exists is one for the jury. Gayle v. Car & Foundry Co., 177 Mo. 447; 16 Am. & Eng. Enc. of Law, p 191.

Keplinger & Trickett and W. R. Thurmond for respondent.

(1) The trial court was right in sustaining motion for new trial "because plaintiff is not entitled to recover." Mathis v. Stock Yards, 185 Mo. 434; Lee v Railroad, 112 Mo.App. 372; Porter v. Railroad, 71 Mo. 66; Fugler v. Bothe, 117 Mo. 475; Steinhauser v. Spraul, 127 Mo. 562. (2) All of the evidence introduced in this case was to the effect that Casey was an independent contractor and not the agent for Oyster. And Casey being an independent contractor, there was no liability on the part of Oyster for Casey's negligence, if any.

OPINION

JOHNSON, J.

Action by a servant against his master on account of personal injuries alleged to have been caused by the negligence of the master. Plaintiff was employed by Michael J. Casey to work as a carpenter on a business building being erected on lots in Kansas City owned by David Oyster and Emily Fiedler. He alleges that his injury occurred during the employment; that it was caused by negligence of Casey in failing to exercise reasonable care to provide him a safe place in which to work, and that Casey was the vice-principal of Oyster and Fiedler, the owners of the property. All of these persons were joined as parties defendant, but during the trial, plaintiff, compelled by adverse rulings of the court, took a nonsuit as to defendants Fiedler and Casey and proceeded with the action against Oyster as the sole defendant. The jury returned a verdict for plaintiff in the sum of $ 3,800, but afterward the court sustained defendant's motion for a new trial on the ground that "plaintiff is not entitled to recover" and plaintiff appealed.

The defenses pleaded in the answer are a general denial, a plea of contributory negligence and a plea that Casey, the employer of plaintiff was not the agent of defendant, but was an independent contractor. The court refused to give the jury a peremptory instruction to find for defendant. A careful examination of the facts of the case and of the principles and rules of law applicable thereto convinces us that the instruction should have been given on the ground that the relationship of Casey to Oyster was that of independent contractor. We concede for argument that plaintiff adduced some evidence--meagre, it is true, but still of substance--from which the conclusion might reasonably be drawn that the injury was caused by the negligence of Casey in the construction and maintenance of a certain scaffold on which plaintiff was required to work and which collapsed under the weight of plaintiff and his fellow-workmen. From this standpoint, we turn to the facts in evidence that bear on the issue we consider to be of controlling importance.

Plaintiff testified that about three weeks before the injury, he was employed to work as a carpenter by Casey, who is described in the evidence as boss carpenter and contractor. He worked on a number of buildings for which Casey was doing the carpenter work, was paid thirty-five cents an hour by Casey and looked to Casey alone for orders. Another workman similarly employed, who was introduced as a witness by plaintiff; testified that on the day he entered the services of Casey, he was at work on defendant's building when defendant approached him and inquired for Casey, remarking, "Mr. Casey is my foreman and I am waiting here to see him." From the evidence of defendant, it appears that Mrs. Fiedler and Oyster, who owned adjacent lots on Southwest Boulevard, decided to build a two-story building on the two lots, the first story to be used for business purposes, the second as a hall. They did not employ an architect but adopted plans prepared for them by Casey who also submitted an estimate of the cost of the building and a statement of the materials required in its construction. An oral agreement then was made with Casey, the nature of which appears in the following extract from his testimony:

"Q. Well, just state the arrangement, Mr. Casey, between you and Mr. Oyster, upon what terms you were to erect that building? A. I was to do all the carpenter work for so much money; they asked me to make an estimate on the cost of the entire building; I done so. Then they told me to get contractors to figure on the different parts of the work; I sent out postal cards to two or three or four different graders; Mr. Oyster didn't know any; I told him I knew some and I would send them postal cards to come around. There was three or four came and I gave it to one grader. I don't know who he was. Mr. Oyster let the stonework himself, and also let the brick work. I had nothing to do with that, nor the plastering, nor the plumbing. He asked me about lumber, about where to get the lumber at; I suggested two or three different firms. We got the lumber from the Kansas City Lumber Company. They gave us the best figures. He asked about the mill work and I suggested two or three mills, and he contracted with the Western Sash & Door Company for the mill work, and for the roof with the Standard Roofing Company. All I had to do was to do all the carpenter work and look after the locating of windows, doors, chimneys and such as that; to see that everything went right and wouldn't interfere with my work.

"The Court: Were you paid for that work in advising him about the names of these contractors? A. No, sir, I didn't get no pay for it.

"The Court: Go ahead.

"Q. Mr. Casey, who hired the men for doing the carpenter work? A. I hired them myself. Q. And Mr. Oyster didn't hire any of them, did he? A. No, sir. Q. State whether or not Mr. Oyster had any authority over your men either to hire or discharge...