Bunner v. Patti

• Decision Date: 16 November 1938
• Docket Number: 35721
• Citation: 121 S.W.2d 153,343 Mo. 274
• Parties: John V. Bunner v. Sebastian Patti, Fleisher Engineering & Construction Company, and Ring Construction Company, Appellants
• Court: Missouri Supreme Court

121 S.W.2d 153

343 Mo. 274

John V. Bunner v. Sebastian Patti, Fleisher Engineering & Construction Company, and Ring Construction Company, Appellants

No. 35721

Supreme Court of Missouri

November 16, 1938

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Reversed.

Leo T. Schwartz and Maurice J. O'Sullivan for appellants.

(1) The court erred in refusing to sustain the plea to the jurisdiction duly pleaded in the answer by these defendants and erred in excluding offer of proof of these defendants to establish the facts so pleaded, and erred in overruling demurrer offered by these defendants at the close of plaintiff's case, and erred in overruling demurrer offered by these defendants at the close of all of the evidence, because on the facts shown, and which are undisputed, any claim of plaintiff against these defendants was cognizable exclusively before the Missouri Workmen's Compensation Commission, and the court had no jurisdiction as to these defendants, or the subject matter of the action as to these defendants, and erred in refusing to dismiss these defendants. Sec. 3308, R. S. 1929; Wors v. Tarlton, 95 S.W.2d 1205; New York Cent. Railroad Co. v White, 243 U.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L. R. A. 1917D, 1; Solvuca v. Ryan & Reilly Co., 131 Md. 265, 101 A. 710; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 912; Stone v. Blackmer & Post Pipe Co., 224 Mo.App. 319, 27 S.W.2d 460; DeLonjay v. Hartford Acc. & Indemnity Co., 225 Mo.App. 35, 35 S.W.2d 911; Cummings v. Union Quarry & Const. Co., 87 S.W.2d 1041; Sec. 3374, R. S. 1929; Bowers v. Mo. Mutual Assn., 333 Mo. 505; St. Louis v. Center Comm. Co., 337 Mo. 247; State ex rel. v. Becker, 333 Mo. 277; Fox v. Dunning, 124 Okla. 228, 255 P. 582; White v. Fuller Co., 226 Mass. 1, 114 N.E. 829; White v. Macomber Co., 244 Mass. 195, 138 N.E. 239; Willard v. Bancroft Realty Co., 150 N.E. 511; Dresser v. New Hampshire Steel Co., 4 N.E.2d 1012; McEvilly v. Meyers, 211 Ky. 231, 276 S.W. 1068; Leebolt v. Leeper, 128 Kan. 61, 275 P. 1087; Phoenix Indemnity Co. v. Barton Torpedo Co., 137 Kan. 92, 19 P.2d 739; Lindsey v. Texas & N. & O. Ry. Co., 87 S.W.2d 864; Matheny v. Edwards Ice Machine & Supply Co., 39 F.2d 70. (2) The demurrers offered by these defendants at the close of plaintiff's evidence and at close of all the evidence should have been given, and the court erred in refusing same for the reason that under the facts shown in evidence the truck driver Dowdy, as a matter of law, was the servant of defendant Shaw and was not the servant of these defendants, and under the evidence these defendants were not liable for his negligence, if any. O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Dilallo v. Lynch, 101 S.W.2d 10. (3) The trial court committed reversible error as to the Patti defendants in giving plaintiff's Instruction and in refusing Instructions A-3, A-4 and A-7 offered by these defendants, because a verdict was authorized against these defendants without requiring a finding that these defendant had the right of control and power to command or direct the truck driver in the details of performing his work. Instruction 4 requiring no such finding and the court erroneously refused to give Instructions A-3, A-4 and A-7, which submitted such element and protected these defendants against adverse verdict unless such element was found. O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Hilsdorf v. St. Louis, 45 Mo. 98; Brady v. C. & G. W. Ry. Co., 114 F. 107; Garven v. C., R. I. & P. Ry. Co., 100 Mo.App. 617, 75 S.W. 193; Mason v. Down Town Garage Co., 53 S.W.2d 412; Burke v. Shaw Transfer Co., 243 S.W. 449, certiorari quashed 250 S.W. 384; Scherer v. Bryant, 273 Mo. 604, 201 S.W. 902; Boroughf v. Schmidt, 259 S.W. 881; Sargent Paint Co. v. Petrovitsky, 71 Ind.App. 353, 124 N.E. 881; Proffitt v. Farmers' Produce Exch. Coop. Assn., 64 S.W.2d 746; Norwegian News Co. v. Simkovitch, 182 N.Y.S. 595; Thatcher v. Pierce, 281 Pa. 16, 125 A. 302; Funston v. Ingenito, 282 Pa. 124, 127 A. 470; Erie City Iron Works v. Ferer, 263 S.W. 1008; Elkins v. St. Louis Pub. Serv. Co., 74 S.W.2d 600; 26 Cyc. 1522-1523. (4) Plaintiff's Instruction 4 was prejudicially erroneous as to these defendants because (a) the issues submitted were broader than the pleadings and the evidence, in that the instruction authorized a finding against these defendants on the respondeat superior theory as to Dowdy, without such theory and/or facts to support it being pleaded, and (b) it erroneously instructed the jury that if the truck driver unloaded the clamshell where he knew it was likely to roll and fall into the pier hole, such act ipso facto constituted negligence, although such act was not a violation of a statute or ordinance so as to make it negligence per se, and (c) because the last paragraph thereof usurps the province of the jury and presumed the truck driver unloaded the clamshell at the negligent request and direction of defendant Patti, which direction was denied by Patti and constituted a disputed issue. (a) The issues submitted by Instruction 4 were broader than the pleadings and the evidence. Kitchen v. Schlueter Mfg. Co., 323 Mo. 1179, 20 S.W.2d 676; State v. Thompson, 85 S.W.2d 600; Kelly v. K. C. B. & L. Assn., 86 S.W.2d 977; State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 724; Gandy v. St. L.-S. F. Ry. Co., 329 Mo. 459, 44 S.W.2d 638; Ducoulombier v. Baldwin, 101 S.W.2d 102; McCombs v. Ellsberry, 85 S.W.2d 138; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 562. (b) Instruction 4 was prejudicially erroneous because it erroneously instructed the jury that if the truck driver unloaded the clamshell where he knew it was likely to roll and fall into the pier hole, such act ipso facto, constituted negligence, although such act was not a violation of a statute or ordinance so as to make it negligence per se. Ducoulombier v. Baldwin, 101 S.W.2d 102. (c) Plaintiff's Instruction 4 was prejudically erroneous because the last paragraph thereof usurps the province of a jury and presumed the truck driver unloaded the clamshell at the negligent request and direction of defendant Patti, which direction was denied by Patti and constituted a disputed issue. Ducoulombier v. Baldwin, 101 S.W.2d 102; McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 138; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 562. (5) Instruction F given in behalf of defendant Shaw was prejudicially erroneous as to these defendants and constituted a misdirection to the jury, resulting in a verdict against these defendants, in that it authorized the jury to find a verdict in favor of the defendant Shaw if they found the truck driver was under the direction of these defendants "as to when and where to go and what to haul," although the mere finding of such matters would not make Dowdy a servant of these defendants, nor change the relationship of employer and employee as between Dowdy and Shaw, and would not change the relationship of independent contractor as between these defendants and defendant Shaw. The instruction prejudicially affected the liability of these defendants and is error of which they are entitled to complain. McCombs v. Ellsberry, 85 S.W.2d 139; Gabelman v. Bolt, 68 S.W.2d 915; Barr v. Nafziger Baking Co., 41 S.W.2d 563; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1088; Lawhon v. St. Joseph Veterinary Laboratories, 252 S.W. 48; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909; Sargent v. Clements, 88 S.W.2d 176; O'Hara v. Laclede Light Co., 244 Mo. 395, 148 S.W. 884. (6) The court erred in overruling motion of "Patti defendants" to enter judgment in their favor on the opening statement of plaintiff's counsel and erred in refusing to enter judgment in favor of such defendants on the opening statement, for the reason that it affirmatively appeared therefrom the truck driver was the servant of defendant Shaw, an independent contractor, for whose acts these defendants were not liable, and that it appeared from such statement there was no right of control over the truck driver by these defendants, so as to make them liable. Woods v. Wells, 270 S.W. 334; Oscanyon v. Winchester Arms Co., 103 U.S. 261, 26 L.Ed. 539, approved Eaton v. Curtis, 4 S.W.2d 824; Thompson v. Marley, 102 Mich. 479; Knoll v. Diamond Match Co., 106 Mich. 127.

Cliff Langsdale and Charles V. Garnett for respondent.

(1) The trial court was right in rejecting the various pleas of the Patti defendants under which they asserted exemption from liability for their negligence under the Workmen's Compensation Act. Under the law they occupy the status of "third parties" and are liable for their negligence. In those states where the general contractor is primarily liable to pay compensation to the injured employee of a subcontractor, his liability under the act is exclusive and he cannot be held liable at common law. Sec. 7285, Comp Okla. Stat. 1921; Fox v. Dunning, 255 P. 582; Sec. 18, Chap. 152, Gen. Laws Mass. 1921; White v. Fuller Co., 114 N.E. 829; McEvilly v. Myers Co., 211 Ky. 31, 276 S.W. 1068. In those states, including Missouri, where the general contractor is only secondarily liable, he is held as a "third party" for negligence resulting in injury to the employee of a subcontractor. Secs. 3308, 3309, R. S. 1929; Pruitt v. Harker, 43 S.W.2d 769; Sec. 3039, Comp. Stat. Neb. 1922; Matthews v. Crancer, 223 N.W. 661; Clark v. Monarch Engineering Co., 161 N.E. 436; Corbett v. Starrett Bros., 143 A. 352; Trimbell Cliffs v. Schackovsky, 161 N.E. 238; Artificial Ice Co. v. Waltz, 146 N.E. 826; Cermack v. Milwaukee Air Power Pump Co., 211 N.W. 354; Culbertson v. Kieckhefer Container Co., 222 N.W. 249; Houlihan v. Sulzberger & Sons Co., 288 Ill. 76, 118 N.E. 429. When a statute has been adopted from another state the judicial...