Beitz v. Hereford

• Decision Date: 08 July 1950
• Docket Number: No. 37865,37865
• Parties: BEITZ v. HEREFORD et al.
• Court: Kansas Supreme Court

Page 135

220 P.2d 135

169 Kan. 556

BEITZ v. HEREFORD et al.

No. 37865.

Supreme Court of Kansas.

July 8, 1950.

Syllabus by the Court

1. A person may be the general servant of one employer and at the same time a special servant of another.

2. Various tests have been employed by courts in determining whose servant a person is at a particular time. Among such tests are: Whose work was the person doing at the particular time? What person had authority to discharge the workman? Who had the right to exercise supervision and control over the workman and to determine the manner in which the work was to be done rather than who actually exercised such control?

3. Where a reasonable doubt exists with respect to whose servant or employee a person is the question is properly submitted to the jury.

4. The record in a damage action examined, considered, and held: (1) The trial court properly submitted to the jury the question whether an alleged tort-feasor was the employee of plaintiff or defendants and, if the latter, whether the injury arose in the regular course of the employee's services for defendant; (2) the trial court did not err in overruling (a) defendants' demurrer to plaintiff's evidence, (b) defendants' motion to strike certain special findings, (c) defendants' motion for judgment non obstante veredicto and (d) defendants' request for leave to amend their answer during a hearing on post-trial motions.

5. It is further held, reversible error in the instructions given or in the refusal to give requested instructions does not appear.

T. F. Railsback, of Kansas City, and James W. Putnam, of Emporia, on the briefs, for appellants.

Samuel Mellinger, of Emporia, and O. R. Stites, of Oklahoma City, Okl., on the briefs, for appellee.

WEDELL, Justice.

This was an action to recover damages for personal injuries. Plaintiff prevailed and defendants appeal.

Appellants, C. B. Hereford and R. T. Hereford, his son, were partners doing business as The Hereford Motor Company. They were engaged in the business of selling and repairing motor vehicles in a building located on the southeast corner of the intersection of Seventh and Merchant streets in the city of Emporia. Appellants rented the building from its owner, Katherine White, who under the terms of the lease was required to maintain the repairs on the exterior of the building including the entrance and exit doors. Emerson A. Rich was appellants' shop foreman and Fred Fish was their assistant foreman. Rich had notified C. B. Hereford the west entrance door to the building was out of repair. On or about a week before April 2, 1947, D. B. Hereford in turn notified C. C. Alexander, who looked after the repair of the building for the owner, that the door needed repairs. Alexander employed W. E. Beitz, appellee, to make the repairs. Appellee drove to the building to inspect the door at approximately 9:00 a.m. on April 2. On his arrival he parked his car at the west entrance door and to the north of the center of that door. He entered the building but found neither of the Herefords present. Rich, the shop foreman, was out testing an automobile on which work had been done. Appellee notified Fish, the assistant foreman, of his mission and Fish pointed out the west door as being the one in need of repairs. It was a double door bot in two parts and so connected as to permit the doors to be opened separately or the entire door to be rolled up overhead.

A large spring approximately four and one half to five feet long and three and one half inches in diameter which halped lift the weight of the north half of the door was broken. The north part of this west door is referred to in the record as the 'crippled' door and we shall so designate it. It appears the spring which was broken was the one at the south edge of the crippled door.

Evidence on behalf of appellee further, in substance, disclosed: After viewing the door appellee advised First it would require about two hours to fix it; at the assistant foreman of appellant it was the duty of Fish to direct the traffic so that it entered the west door and left through the north door of the building; appellee asked Fish if he would look after the traffic and see that the traffic did not enter the west door while the repair work was in progress and Fish agree to do so; although Fish did not readily admit he had so agreed he did admit with reference to a question an answer contained in a previous investigation that he had then made the statement he would undertake to so regulate the traffic; although both the foreman and assistant foreman directed the traffic at different times the assistant foreman always directed it in the absence of the foreman; after examining the door appellee reported to C. C. Alexander at the Emporia Gazette office and they brought a large new spring to the building; the spring was laid in the driveway at the west entrance in front, just west, of the two doors; Alexander and appellee went to a restaurant for coffee and finding it closed appellee returned to his car which, as previously stated, had been parked west of the west entrance to the building; the car was west of the crippled door; he removed the tool chest from his car and placed it just west of the west doors and a little south of his car.

With the car, tool thest and spring left on the outside of the west doors, as indicated, appellee entered the building and asked Fish to call some of his men to help raise the door; Fish complied but the men were unable to raise it; appellee asked Fish for a ladder, which was provided; appellee first set the ladder against the crippled or north half of the west door but in that location he was unable to release the old spring and a chain hooked to it, which was jammed in the door track; in that position he was required to work left-handed; he then moved the ladder somewhat to the south so that a part of it was east of the south half of the door which was not crippled; the upper part of the ladder rested against a beam, a short distance from the doors.

While appellee was on the ladder in the position indicated Rich, the foreman, returned to the shop and started lifting the south half of the west door; Fish had neither placed a guard on the outside of the west doors nor had he locked the door although customers honked a horn when arriving at the entrance door Fish knew it was the custom of employees not to honk a horn when they came to the entrance door; as Rich started raising the door appellee and the men on the inside hollered, 'Hold it. Hold it'; Rich stopped raising the door momentarily and then gave it another lift; the door rolled up overhead, struck the ladder and threw appellee off, resulting in serious injuries.

The overhead doors were built in sections and hinged onto each other; there existed a row of glass panes approximately thirty inches from the floor and another row at the top of the doors; the top row of panes was nine feet from the ground; the top of the lower row of panes was forty-eight inches from the floor; each pane was eighteen inches square and there were three panes in each row; there was a wood panel on each side of the glass panels in the center of the two doors; the wood panels in the center of the entire door obstructed vision through the doors at that point; Rich was five feet seven inches tall; appellee had done work in the building previously and had been given some assistance by the men in the shop; it appears, however, that on such previous occasions they were not directed to do so by the shop foreman of the appellants but did so on their own accord.

Rich had reported to C. B. Hereford that the west door was in need of repairs; he knew a person making the repairs would be required to mount a ladder on the inside; he did not see appellee that morning and did not knew there was a ladder standing on the inside; the first time he saw the ladder was when he stopped lifting the door and that was when the door was raised to about the level of his eyes; Rich tistified, in substance, it would be difficult to see through the panes of glass unless a person put his hands against the glass and then he would not see very much; no one flagged him down before entering the door; There was no car, tools or anything else lying in the driveway in front of either of the west doors.

The foregoing is not intended to be a complete statement of the testimony of all witnesses but we think it supplies a sufficient general background for consideration of errors urged by appellants other than rulings on post-trial motions. Some additional detailed facts will be supplied under specific contentions.

We shall treat alleged errors in the order they were raised in the trial. Appellants contend their demurrer on the ground appellee's evidence was insufficient to prove a cause of action should have been sustained. On that particular point they assert it was not their duty but the duty of the owner of the building to make the door repairs. That point is conceded. The owner did employ appellee and he proceeded to make the repairs under the circumstances stated.

Appellants assert appellee made appellants' servants, except Rich, his employees; that they were under his direction and control as to the manner in which the work was to be done and, therefore, appellee, as their immediate and special employer, was responsible for their negligent acts. In support of the doctrine that a person may be a servant of a general master and at the same time be the servant and employee of a special master and that the special master will be liable for the negligence of such servant in the event the servant is at the time performing the work of the special master and is subject to his supervision and control, appellants cite: Baker v. Magnolia Petroleum Co., 111 Kan. 555, 207 P. 789; Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P.2d 552; Moseman v. L. M. Penwell Undertaking Co., 151 Kan. 610, 100 P.2d 669; ...