Porter v. The Withers Estate Company
| Decision Date | 27 January 1919 |
| Citation | 210 S.W. 109,201 Mo.App. 27 |
| Parties | STEPHEN D. PORTER, Respondent, v. THE WITHERS ESTATE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit.--Hon. Daniel E. Bird, Judge.
AFFIRMED.
Judgment affirmed.
Warner Dean McLeod & Langworthy and Roy B. Thompson for appellant.
Brewster Kelley, Brewster & Buchholz for respondent.
Plaintiff recovered a verdict and judgment in the sum of $ 3,000 for personal injuries sustained by him on June 3, 1917, as the result of the negligence of the defendant in whose employ he was at the time of his injury.
Defendant's first point is that its demurrer to the evidence should have been sustained. In this connection it urges that one Batty, whom plaintiff claims to have been his foreman, was an independent contractor, and that plaintiff was the servant of Batty and not of the defendant. The facts in connection with this subject show that the defendant was the owner of a considerable amount of improved real estate in Kansas City, Missouri, owned by the late Webster Withers. Upon his death defendant company was organized and nearly all of its stock at the time of the trial was owned by his widow. Mr. W. W. Goodwin married one of Mrs. Withers' daughters and was the agent of the defendant. He looked after the renting of property the collection of rent, and repairs to be made.
Plaintiff, hearing that the defendant desired the services of a painter, met Batty on March 17, 1917, at Southwest Boulevard and 19th Street, and Batty told him that "he had--The Withers Estate had a lot of work to do and they wanted to get a man to help." Plaintiff asked Batty "what they were paying" and Batty replied, forty cents an hour. Batty told him that the work was not piece work but day work and to report at 1120 Walnut Street, a building owned by the defendant. On the 19th day of March plaintiff reported as directed by Batty and found Mr. Goodwin, who, having known plaintiff for sometime, greeted him by his first name. Plaintiff asked Mr. Goodwin for whom was plaintiff working, and Mr. Goodwin replied, "You are working for us; The Withers Estate." Plaintiff said to him, "Batty tells me that you are only paying forty cents." Mr. Goodwin replied, Plaintiff said to Mr. Goodwin that he thought he ought to have more but Mr. Goodwin replied that he could not pay more. Mr. Goodwin further said to plaintiff, "Mr. Batty is your foreman; go ahead; he will instruct you what to do." These conversations in the form testified to by plaintiff were denied by Batty and Goodwin. Plaintiff worked under Batty for five weeks at 1120 Walnut Street and thereafter about eight days at Mr. Goodwin's residence; one week at the residence of Dr. Chambers; thereafter at 31st and Paseo; at the Westover Building, owned by defendant; at 3236 Main Street, a residence owned by one of defendant's attorneys; the Withers Building at 31st and Troost, owned by the defendant; and, finally, at the Westover Building, owned by defendant, where he was injured on June 3rd. So he was injured not quite three months after the conversation had between Batty and plaintiff and between Mr. Goodwin and plaintiff, when the latter went to work. During all of this time plaintiff was working under Batty and the latter told him what to do.
At the trial defendant introduced a contract, dated March 6, 1917, or thirteen days before plaintiff first went to work, executed between defendant and Batty. It is headed "Painting Contract" and recites that it is agreed that Batty "shall do all painting, both inside and outside, on the properties either owned or managed" by Goodwin, in Kansas City, Missouri, as ordered by Goodwin, "during the spring and summer of the year 1917 on the following basis." Goodwin to pay the actual cost of all painting materials used in the work. Batty to be paid fifty cents per hour for all time actually put in by him on the work and the actual cost of all additional labor employed by him. Batty to furnish at his own expense all brushes, ladders, scaffolding, drop cloths and equipment necessary to safely and economically carry on the work.
It is defendant's contention if there was any verbal contract at all between plaintiff and Batty and plaintiff and Goodwin wherein defendant and not Batty employed plaintiff, that that employment was merely for the first job done, or for work in the building at 1120 Walnut Street. This because plaintiff, between the time of the Walnut Street work and the job where he was injured, did a great deal of other work under Batty on other buildings, some of which were not owned by the defendant, showing a change in plaintiff's employment. Consequently, defendant says that the work plaintiff was doing at the time he was injured was being done as an employee of Batty and not of defendant. There is no evidence of any other employment except the oral one with Batty and Goodwin claimed by plaintiff and the painting contract claimed by defendant as engaging Batty as an independent contractor. Plaintiff does not admit that the "painting contract" was executed. We take it that defendant's contention is that the work being done at the time plaintiff was injured was being done under the written painting contract that defendant had with Batty. We prefer not to go into the matter as to whether the jury was required to believe that the painting contract was in fact executed, or, believing that it was so executed, that plaintiff was not working under the same at the time he was injured, but rather under his verbal contract with Batty and Goodwin. But, for the purpose of this case, we will assume that the work being carried on at the time plaintiff was injured was under the painting contract that Batty had with defendant, unless said contract was abandoned.
The painting contract upon its face suggests that Batty was merely to be the employee of Goodwin, defendant's agent. It does not engage Batty by the job but by the hour at a stipulated sum. Goodwin was also required to furnish or pay for all the materials. The men to be hired by Batty were to be paid what their services actually cost Batty. In other words, Batty was to be reimbursed by defendant for the money he should pay out for hire. While the mode of payment and the question as to who is to furnish the materials is not a decisive test by which to determine as to whether the party employed is an independent contractor or an employee, these matters may be taken into consideration with other facts and circumstances throwing light on the question, especially in connection with the matter as to whether the proprietor has control over the person employed. [1 Thompson on Neg., sec. 629, p. 578; Shearman and Redfield on Negligence (6 Ed.), sec. 165, p. 400; 1 Labatt's Master and Servant, sec. 66, p. 233; 16 Amer. and Eng. Ency. of Law (2 Ed.), pps. 189, 190.]
We think that the painting contract on its face by no means is to be construed as meaning that defendant's agent, Goodwin, was not to have control over the method and details of the accomplishing of the work or that Batty was not to be under the immediate supervision and control of Goodwin. The work was to be done "as ordered by" Goodwin. Whether this means, as defendant assumes, that Batty was to do the various jobs of work as ordered by Goodwin in accordance with his (Batty's) methods, defendant to have control only of the result of the work, or whether Goodwin was to have the right to order Batty, not only as to what jobs to be done but in reference to the details and method of the accomplishing of the work, is not clear. However a reading of the contract suggests that Batty could not well refuse to obey Goodwin's directions as to the mode in which the work should be done. But we will assume that the contract is ambiguous on this point, so we must resort to the construction put upon it by the conduct of the parties subsequent to its execution. [Sedalia Brewing Co. v. Sedalia Water Works Co., 34 Mo.App. 49.]
We think there is no question but that the subsequent conduct of Goodwin and Batty was such as to show that defendant was directing and controlling the manner of the execution of the work. In this connection the facts show that at the time the written painting contract was entered into Goodwin told Batty that instead of allowing forty cents an hour for the men as provided in the contract he would allow forty-five cents an hour; that if he, Batty, could get any good men for less than forty-five cents an hour Goodwin, nevertheless, was to pay him forty-five cents, and that if Batty had to pay more than forty-five cents an hour later, that the defendant would reimburse Batty to the actual amount paid out by him. Goodwin testified that he was willing to pay Batty forty-five cents an hour for the men that Batty should hire even though Batty obtained such men for forty cents an hour; that the men so hired must be satisfactory to Goodwin. Plaintiff was hired at forty cents an hour. Plaintiff testified that Goodwin was on the work at 1120 Walnut Street, and that "he would give directions what to do and what colors to use and where to paint," and that he would direct Batty with a suggestion "about how high up we were painting this border," and that he directed Batty what to do, "how to paint it, and so on." We thus see that defendant was interfering in the work to the extent of insisting upon the kind of men that should be employed and giving directions to Batty as to details. All of which, in connection with the other facts in the case, is inconsistent with the...
To continue reading
Request your trial