Semper v. American Press

• Decision Date: 02 June 1925
• Docket Number: No. 18717.,18717.
• Citation: 273 S.W. 186
• Parties: SEMPER v. AMERICAN PRESS.
• Court: Missouri Court of Appeals

273 S.W. 186

SEMPER v. AMERICAN PRESS.

No. 18717.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Rehearing Denied June 24, 1925.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by August F. Semper against the American Press. Judgment for plaintiff, and defendant appeals. Affirmed.

Buder & Buder, of St. Louis, for appellant.

Harry F. Russell and Marsalek & Stahlhuth, all of St. Louis, for respondent.

SUTTON, C.

This is a personal injury case. Plaintiff sues to recover damages for injuries to his left eye alleged to have been inflicted by the defendant through its servants and agents. The cause was tried to a jury, there was a verdict and judgment in favor of plaintiff for $1,500, and the defendant appeals.

The accident in which plaintiff received the injuries for which he sues occurred at the northwest corner of Fifteenth and Market streets, in the city of St. Louis, late in the afternoon, on September 15, 1921. The defendant, a Missouri corporation, was engaged in the business of publishing and distributing a newspaper known as the St. Louis Times. Its plant was located at Broadway and Chestnut street in said city. One George D. Bresler delivered the baseball edition of the Times to dealers for defendant on what was known as the Manchester run. Bresler used a Ford touring car in making these deliveries. The papers were wrapped in bundles at defendant's plant, and labels were placed on the bundles showing where and to whom the bundles were to be delivered. Bresler sometimes permitted a boy by the name of Schrell to assist him in delivering the papers. Schrell was assisting in the deliveries at the time of the accident. Bresler drove the automobile, and Schrell rode in the back seat "and threw the bundles from the automobile at the places of delivery. The northwest corner of Fifteenth and Market was on the Manchester run, and Bresler was required to deliver a bundle of papers at that place for a dealer by the name of Samuels. At the time of his injury, the plaintiff was standing on the sidewalk at the northwest corner of Fifteenth and Market. Bresler in making his deliveries drove westward on Market street, and, as he passed the northwest corner of Fifteenth and Market, Schrell threw a bundle of papers from the automobile and struck the plaintiff with it in the left eye, inflicting the injuries for which he sues.

Plaintiff testified:

"I was walking west along Market street and stopped for a moment to wipe my forehead, and the next thing I thought lightning struck me. I didn't know what happened. I felt like all the light had gone out of me. It was a sudden shock. I didn't know what in the world was going on. I was hit by something. Immediately after the bundle struck me I didn't see anything. When I sufficiently recovered my composure, I saw that bundle of papers lying at my feet, and I saw an automobile about a block away, going west. I saw two persons in the automobile; they were looking backwards. They were not near enough for me to identify them. The bundle you now show me is the bundle I found lying at my feet. It contains copies of the St. Louis Times. That is the bundle that hit me. The spot on the bundle is blood. I was bleeding so profusely that the blood was just all over the sidewalk, and some of it got on the bundle. After the accident, I went to the City Dispensary and the surgeon in charge laid me out on a slab there, and made two or three stitches in the wound, which was a cut over the lower lid in the inner corner of the left eye. There is a mark there yet. It cut through the lower lid. I am 53 years old and reside at Chicago. At the time of my injury, I was employed as a railway mail clerk, distributing mail en route between Chicago and St. Louis, and received a salary of $2,300 per year. After they finished with me at the City Dispensary I went to where I generally stopped, where I sleep here, and when I got there the man in charge of the building told me somebody had been there from the Times to see me. I then went home to Chicago. I did not work back; the run went by default; I was unable to make the run. In Chicago I obtained medical treatment for my eye. I was under treatment of a physician there from September 15th to October 7th. My face was bandaged and I had to have the doctor examine the eye and dress the wound. My bill for treatment was $29. On the latter date I returned to my work. On going back to work I discovered my, eyesight was very much weakened, so much so in fact I had to use a magnifying glass, to decipher addresses that were poorly written. I never had to do this before I was injured. My eye has continued in the condition I have just described I might say practically to this day. It has gained in strength, that is, I do not have to use a magnifying glass, but I am never able to do anything without glasses at all. I have never since the accident been able to read without glasses. Prior to my injury I never had to use glasses except to work at night. Now I cannot work at any time without glasses. I found that bundle of papers at my feet and from that I mane the deduction that it was what hit me."

The bundle identified by the plaintiff was introduced in evidence. It contained 10 copies of the baseball edition of the St. Louis Times, and was labeled thus: "Manchester run. Samuels Sat 5 D 10 15th and Market." It was wrapped in cylindrical form, was about 18 inches in length, 3 or 4 inches in diameter,, and weighed about three pounds. It has been brought here with the record for the inspection of the court by the consent of the parties.

Dr. John Ryburn of the St. Louis City Dispensary, produced on behalf of plaintiff, testified that he treated plaintiff on September 15, 1921, for a laceration of the lower lid of the left eye, about one-half inch in length; that he treated the wound and took one stitch in same; and that on his examination he did not detect any injury at that time to the eye.

George D. Bresler, produced on behalf of plaintiff, testified:

"During the baseball season I had a contract with defendant to deliver papers for it in the late afternoon with my own machine, at $5 per run, amounting to $35 per week. I only delivered papers for defendant during the baseball season. During the rest of the year I sold papers at corner boxes. I made arrangements to deliver papers for defendant, with Mr. Pollard, defendant's circulation manager, about four years prior to 1921. I was hired by Mr. Pollard. After I made that arrangement with Mr. Pollard, I came down every season and went back to work. I would come down and find out if I would get my job back. I got my job back in 1921 when the baseball season started. Mr. Pollard was not there then. Mr. Bangor was the one who told me to come back. I just came to him and said, `Bill, am going back this year?' and he said, `Certainly.' He said, `You go back on your job.' After that I came there every evening and delivered this run. Bangor had charge of the papers when they left the press room to be put on the machines to be sent out to the different stations. On the day that the plaintiff was hurt, I left the corner of the Times building on my regular run. I went out Chestnut to Fourteenth, south to Market, then west, until I got to the city limits. I had a bundle to deliver at Fifteenth and Market. The boy, Schrell, who was with me that day, threw the bundle off. I let him go with me every day. If he would be there going out I would take him. He went with me two or three times a week, throwing off bundles. On the various occasions when he rode with me, he sat in the back of the car and dropped the bundles off for me until we got to Eighteenth street. As I passed the corner of Fifteenth and Market on the day the accident happened, the bundle was thrown off. I slowed down for the bundle to be thrown off. Schrell was employed in the post office department and weighed mail at the Times office. Every time I would see him he would say, `Are you going west,' and I would say, `Sure.' I would give him a lift, and he would throw these bundles off to help me out. I did not pay him anything to do that."

Defendant offered no evidence. Schrell, Pollard, and Bangor were not produced as witnesses, nor were they accounted for.

The defendant assigns reversible error upon the refusal of its demurrer to the evidence. The chief ground urged in support of this assignment is that the evidence conclusively shows that Bresler was an independent contractor, and not a mere servant of defendant. It is argued that the undisputed evidence shows that Bresler was under contract with defendant to deliver its papers during the baseball season, for a round sum, employing his own means and methods, without being subject to the control of defendant except as to the results of his work, and that therefore he should be adjudged an independent contractor as a matter of law.

"The general rule is, that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work, not in itself unlawful or attended with danger to others, according to the contractor's own methods, and without his being subject to control, except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractor, or his servants, committed in the prosecution of such work. An independent contractor is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished." Gayle v. Missouri Car & Foundry Co., 177 Mo. 427, loc. cit. 446, 76 S. W. 987, 992; Crenshaw v. Ullman, 113 Mo. 633, loc. cit. 639, 20 S. W. 1077; McGrath v. St. Louis, 215 Mo. 191, loc. cit. 210, 114 S. W. 611; Fink v. Missouri Furnace Co., 82 Mo. 276, loc. cit. 283. 52 Am. Rep. 376.

"The general rule is that one employing a competent person, exercising an independent occupation, to do a work...