Baker v. Scott County Milling Co.

• Citation: 20 S.W.2d 494,323 Mo. 1089
• Decision Date: 09 October 1929
• Docket Number: 28009
• Parties: Henry Baker, Appellant, v. Scott County Milling Company
• Court: Missouri Supreme Court

20 S.W.2d 494

323 Mo. 1089

Henry Baker, Appellant, v. Scott County Milling Company

No. 28009

Supreme Court of Missouri

October 9, 1929

Rehearing Overruled August 6, 1929.

Motion to Transfer to Court en Banc Overruled October 9, 1929.

Appeal from Circuit Court of City of St. Louis; Hon H. A Rosskopf, Judge.

Reversed and remanded.

John P. Griffin for appellant.

(1) It is error to give an instruction which is not predicated on sufficient evidence. Defendant's Instruction 5 reads "The court instructs you that if Bryant, acting as a reasonably prudent man, thought it safe to pick under the concrete and then have the dirt shoveled out, the plaintiff cannot recover." Bryant did not testify, and he was the only person who could tell what he "thought;" therefore, what he thought is not in the record. Even though what he "thought" was in the record, it would not be evidence on which to base this instruction. There is not a scintilla of evidence in the record to support this instruction, and it was error to give it. Champion Coated Paper Co. v. Shilkee, 237 S.W. 109; Baker v. Contracting Co., 282 Mo. 701, 223 S.W. 45. (a) It is erroneous and reversible error to give an instruction which singles out and comments on one piece of evidence, or the evidence of a particular witness, or has a tendency to comment on some part of the evidence. This instruction violates all these rules in that it refers to one person who is not even a witness, and singles out and anticipates what he would think if he were present. Costello v. Kansas City, 280 Mo. 576, 219 S.W. 386; Huff v. Railway Co., 213 Mo. 495; Zumwalt v. Railroad, 266 S.W. 726; Burtch v. Railway Co., 236 S.W. 346; Rice v. Bridge & Transfer Co., 216 S.W. 751; Zander v. Transit Co., 206 Mo. 445. (b) This instruction also is erroneous for the reason that it assumes that Bryant was a reasonably prudent man. It is error to assume any controverted fact. Miller v. Busey, 186 S.W. 985. (2) The court of its own motion gave instruction numbered 7, which is a "stock" instruction and an attempt to define the burden of proof. This instruction has been condemned and held to be error in many recent opinions of this court. Peppers v. Railroad, 295 S.W. 757; Trautmann v. Trautmann, 300 Mo. 314, 254 S.W. 286; Hite v. Railroad, 225 S.W. 916; Brown v. Am. Car Foundry Co., 271 S.W. (Mo. App.) 543. (3) The plaintiff requested the court to give instructions 2, 9 and 10, submitting his theory of the case to the jury. The court refused to give Instruction 2 as requested by the plaintiff, and modified it to such an extent that it did not submit the plaintiff's theory of the case. The court refused to give instructions 9 and 10. There was abundant evidence in the record to support the plaintiff's theory of the case on which these instructions were based, and he was therefore entitled to have his theory submitted to the jury. Williams v. Fleming, 284 S.W. 796; Jennings v. Cooper, 230 S.W. 328; Rooker v. Railway Co., 204 S.W. (Mo. App.) 558; Darr v. Building Co., 198 S.W. 483. The defendant claimed that it was not liable to the plaintiff because it hired an independent contractor to wreck the elevator on which the plaintiff was working at the time he was injured. There are exceptions to the rule that even though the defendant hired an independent contractor it would not relieve it of liability. The exceptions relied on are that the defendant did not employ a person who was competent and had acquired ordinary skill in doing that kind of work, and that defendant retained control over the said independent contractor as to the method of doing the work, and that the work was dangerous. The above described instructions were based on these exceptions and offered to submit to the jury that even though they found that the defendant did hire an independent contractor it would be liable, nevertheless, if it failed to hire a competent person who had acquired ordinary skill in the doing of that work, or if it kept control over the said contractor as to the method of doing the work. There is abundant evidence in the record to show that the alleged contractor was only an ordinary laborer, and had no vocation except it be that of a prize fighter, and that the defendant exercised and supervised the doing of the entire job, in fact, it commenced and finished the job with its own regular employees and its own tools and equipment. Under these circumstances, defendant was liable to the plaintiff, and the instructions should have been given. Thomassen v. Water & Light Co., 278 S.W. 979; Mallory v. Pure Ice & Supply Co., 6 S.W.2d 622; Wendt v. Real Estate Trust Co., 299 S.W. (Mo. App.) 66; Hoelker v. American Press, 296 S.W. 1008; Semper v. American Press, 273 S.W. (Mo. App.) 188; Vaughn v. Davis, 221 S.W. (Mo. App.) 785. (4) The defendant put in evidence over the objection of the plaintiff a ledger sheet showing payments amounting to $ 452.38 to Otis Bryant. These documents should not have been admitted because they were not competent for any purpose. The ledger sheet was a self-serving declaration, and according to the defendant's own evidence as to its custom of handling the canceled checks, it should have kept the checks, and having failed to do so should not be allowed to use the stubs. This evidence was incompetent for the further reason that it was not material who paid the plaintiff or whether his name was on the payroll of the defendant, the vital question being who had control and the right to direct. Vaughn v. Davis, 221 S.W. (Mo. App.) 785; Porter v. Withers, 201 Mo.App. 27, 210 S.W. 109; Fitzgerald v. Cardwell, 207 Mo.App. 514, 226 S.W. 971.

Bailey & Bailey and Anderson, Gilbert & Wolfort for respondent.

(1) Plaintiff proved no negligence. The demurrers to the evidence should have been sustained. (2) The plaintiff did not prove that he was working for the Scott County Milling Company, as alleged in his petition. (3) There was no error in Instruction 5. This instruction is merely the converse of Instruction 1 submitted by plaintiff. (4) Instruction 2, as requested by plaintiff, should not have been given either under the pleading or proof, nor should the instruction as modified by the court have been given under the pleading or the proof. There was no error against the appellant in giving that instruction. The only error was against respondent. Instructions must be within both the pleading and the proof. Degonia v. Railroad, 224 Mo. 565; Neeper v. Himbach, 249 S.W. 440; Schriver v. Railroad, 260 Mo. 421; Riley v. Independence, 258 Mo. 671. Plaintiff can only submit to the jury specific acts of negligence pleaded. Clark v. Motor Car Co., 177 Mo.App. 623; Beaver v. Transit Co., 212 Mo. 331; State ex rel. v. Railways, 260 S.W. 746. (5) The payrolls of defendant were competent evidence to show that the appellant was not in its employ, but was in the employ of Bryant, an independent contractor.

Cooley, C. Davis and Henwood, CC., concur.

OPINION

COOLEY

Plaintiff sued the defendant corporation in the Circuit Court of the City of St. Louis to recover for personal injuries sustained while working in the wrecking of an elevator of defendant at Sikeston, Missouri. The jury returned a verdict for defendant, and from the judgment thereon plaintiff appealed.

Defendant had on its premises two steel elevators or grain tanks, generally referred to in the evidence as elevators, which it desired to have taken down, and to that end engaged one Otis Bryant, who employed plaintiff and two other laborers to assist with the work. There is sharp contention as to Bryant's relationship to the defendant company, defendant contending that he was an independent contractor for whose negligence, if any, defendant is not liable; plaintiff, contra. This issue will necessitate somewhat minute notice of the evidence.

The elevator which was being wrecked at the time of plaintiff's injury (the other structure being similar) is described as being a large one, forty or fifty feet high and about forty feet "across" (apparently circular), built of steel with wooden partitions dividing it into eight compartments, and resting upon a flat steel-covered rock foundation. At the bottom earth had been packed in, sloping in all directions from the bottom at the center to a height of about eight feet at the outer edge, upon which had been laid concrete four to six inches in thickness, making the bottom of the elevator "funnel shaped" or "hopper shaped," so that grain would "run to the center."

At the time of plaintiff's injury, May 12, 1924, the elevator he was working on had been razed to the dirt and concrete portion at the bottom; that is, the steel and lumber had been taken down and he and his fellow-workmen were engaged at the time of his injury in taking out the dirt and its concrete covering, under the direction of Bryant, who was also helping with the work. Two compartments had been worked out, and they had been busy for a short time on the third. Plaintiff had not helped with work on the other two. The method of procedure apparently was to begin at the outside, remove the dirt from under the concrete -- "undermine" the concrete -- for a short distance, perhaps two feet or so, and then break off the concrete with a pick or a sledge. The dirt was packed too hard to remove with a shovel, and a pick was used to loosen it, that is, pick it down to the intended depth and to a height of about four feet, then go to the top and tap the concrete with a sledge, thereby jarring and loosening the dirt to the depth it had been undermined, causing the undermined dirt to fall, and then break off the overhanging concrete. There is no evidence whether or not dirt had fallen after being thus undermined without tapping on the concrete prior to the fall that injured plaintiff.

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