Aubuchon v. Security Const. Co.

• Citation: 291 S.W. 187
• Court: Missouri Court of Appeals
• Decision Date: 11 January 1927
• Parties: AUBUCHON v. SECURITY CONST. CO., Inc. (No. 19692.)

291 S.W. 187

AUBUCHON v. SECURITY CONST. CO., Inc. (No. 19692.)

St. Louis Court of Appeals. Missouri.

January 11, 1927.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Albert Aubuchon against the Security Construction Company, Inc. Judgment for plaintiff, and defendant appeals. Affirmed.

Watts & Gentry, of St. Louis, for appellant. Foristel, Mudd, Hezel & Habenicht and James T. Blair, all of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries sustained by plaintiff while engaged in the operation of a pressure pump used for the purpose of spraying fruit trees with a solution of slaked lime. The verdict of the jury was in favor of plaintiff in the sum of $5,000, and judgment was duly rendered thereon, from which, after an unavailing motion for a new trial, defendant has appealed.

The petition proceeded upon the theory that at the time his injury was received plaintiff was in the employ of defendant. The negligence pleaded and submitted to the jury was the act of defendant in furnishing plaintiff with a pump that was defective in certain particulars. The answer was a general denial.

The evidence disclosed that on April 25, 1924, defendant was engaged in making certain improvements in a subdivision located near the city of Ferguson, Mo. About two days prior thereto defendant's superintendent, Mr. L. E. Jeffrey, had stated that he desired the trees which were standing on the subdivision to be sprayed so that the premises would have an attractive appearance on the Sunday, when he was expecting prospective purchasers of lots to inspect the subdivision. Defendant had no spraying apparatus, but Jeffrey arranged that a pump be procured from a man in the neighborhood who owned one and had loaned it to defendant on a previous occasion.

This apparatus was constructed from anordinary barrel which was laid upon its side. In the part which was turned upward while pump was in operation there was a square hole through which the pump proper was down into the barrel. The pump was operated by a man standing on a wagon, the spraying solution was thus forced through a hose, to the end of which a nozzle was attached.

Plaintiff was associated in this work with a man named Clarence Koppel. When they first prepared to use the pump, the hose was wrapped around it. Jeffrey, however, unwrapped the hose, which was found to be and a crackling sound was heard inside of it. Neither the hose nor the barrel was cleaned out; Jeffrey having advised the men that the apparatus was all right, and that they should proceed to use it.

Plaintiff mixed up a solution of lime and water for the whitewash, which, however, Jeffrey would not permit them to use, for the reason that it was too gray. Jeffrey there-upon mixed up a new solution according to his own taste, and plaintiff and Koppel commenced the work. While plaintiff was engaged in spraying a certain tree, the nozzle at the end of the hose became stopped up. Plaintiff struck the nozzle against the wheel the wagon several times, and also against trunk of the tree, whereupon lime and water gushed out into plaintiff's face and eyes, with the result that, while the right eye was inflamed for a short time, it recovered, but the sight of the left was totally destroyed.

Defendant has but one assignment of error—that the court should have sustained the demurrer to the evidence requested at the close of the whole case—and candidly submits that the sole question to be presented on this appeal is whether plaintiff at the time his injury was received was a servant of defendant, or was employed by a firm of independent contractors. The determination of this question necessitates a review of the evidence bearing upon such issue, with plaintiff to be given the benefit of all the evidence the case tending to support his cause of action, in addition to which he must be al lowed the benefit of all reasonable inferences of fact on all the proof. Williams v. Kansas City S. R. Co., 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443; Stauffer v. Metropolitan St. R. Co., 243 Mo. 305, 147 S. W. 1032; Larkin v. Wells (Mo. App.) 278 S. W. 1087;

Gehbauer v. Hahn Bakery Co. (Mo. App.) 285 S. W. 170.

Plaintiff had been in the employ of defendant as a laborer for two or three months when his injury was sustained. He received his orders from Jeffrey, the superintendent, or, in case Jeffrey was not present, from his brother, Thomas Aubuchon, who, according to the testimony of plaintiff himself, was defendant's foreman.

There was a partnership arrangement between Thomas Aubuchon and one William Koppel, under which both men had been previously engaged in farming. Having quit the farming business, however, they nevertheless continued as partners, and began the and work of laying out a subdivision.

Thomas Aubuchon was employed at a salary by defendant in April, 1924, and also received his orders from Jeffrey, passing them on in turn to the men engaged at the work being done. Such work did not at all times require the same number of men, and, when more men were needed, Jeffrey would select them himself, or else ask Aubuchon to employ them. It was through Aubuchon that plaintiff and Clarence. Koppel were engaged to spray the trees.

It was Aubuchon's duty to keep a record of the time of the men and teams, and to make up the pay roll, based upon a definite rate of pay per hour for each helper and team, and then to turn such record over to Jeffrey, by whom a check to cover the total amount of the pay roll was thereupon drawn in favor of the firm of Aubuchon & Koppel. The check was then sent to Aubuchon, who acted as paymaster in giving the men their wages. The check also covered whatever sum was due Aubuchon and Koppel personally. It appears that, when Jeffrey was otherwise engaged, Aubuchon would go down to the office and bring out the money to meet the pay roll. Plaintiff testified that he had been on occasions paid by Jeffrey himself.

Aubuchon testified that he at no time had agreed with defendant to do a specific amount of work for a specific price; that plaintiff was employed by defendant; and that all the men he hired knew that they were working for defendant; that he was in charge of the work only at such time as Jeffrey was not present; and that it was the duty of the men to obey such orders as Jeffrey gave them. Jeffrey, called as a witness for defendant, testified that there was no written contract of any sort between defendant and the firm of Aubuchon & Koppel; that they were simply hired and did the work under his direction; and that he had...