O'Brien v. Rindskopf

• Decision Date: 19 April 1934
• Citation: 70 S.W.2d 1085,334 Mo. 1233
• Parties: Catherine O'Brien v. Herman Rindskopf, Appellant, Robert J. Ambruster and Carl Koehler
• Court: Missouri Supreme Court

70 S.W.2d 1085

334 Mo. 1233

Catherine O'Brien v. Herman Rindskopf, Appellant, Robert J. Ambruster and Carl Koehler

Supreme Court of Missouri

April 19, 1934

Appeal from Circuit Court of City of St. Louis; Hon. William H Killoren, Judge.

Judgment for $ 12,500 (entered upon condition).

Jones Hocker, Sullivan, Gladney & Reeder, Web A. Welker and Willard A. McCaleb for Herman Rindskopf Lawrence McDaniel of counsel.

(1) A servant, in the general employ of one person, may be so transferred to the service of another as to make him the servant of the latter. 18 R. C. L. 784, sec. 244; Healy v. Wrought Iron Range Co., 161 Mo.App. 483; Standard Oil Co. v. Anderson, 212 U.S. 222. (2) A person who hires or borrows the servant of another to do his work, and has the right to control the servant in the performance thereof, is liable for the negligent acts of the servant, committed while performing such work. Standard Oil Co. v. Anderson, 212 U.S. 215; State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 384; Haney v. Geraghty, 273 S.W. 780; Grothman v. Herman, 241 S.W. 461; Burke v. Shaw, 211 Mo.App. 353, 243 S.W. 449; Simmons v. Murray, 209 Mo.App. 248, 234 S.W. 1009; Mahany v. Railroad Co., 254 S.W. 16; Gorman v. Jackson & Kansas City Show Case Co., 19 S.W.2d 559. (3) The undisputed evidence in this case shows that Ambruster contracted for the funeral with Dr. Will and that he had exclusive charge and control of conducting the same. Rindskopf merely hired his truck and chauffeur to Ambruster to be used by him as he should direct, and from the time the driver reached the place where the services were being held Ambruster acquired the exclusive right to control and direct his performance of the work, and therefore became Hilton's master as a matter of law. Lang v. Hanlon, 157 A. 788; Denton v. Railroad, 284 U.S. 305; Healy v. Wrought Iron Range Co., 161 Mo.App. 489; Grothman v. Herman, 241 S.W. 461; Greenberg & Bond Co. v. Yarbrough, 106 S.E. 624; Hartell v. F. H. Simonson & Co., 113 N.E. 254; Isaacs v. Prince & Wilds, 97 So. 558; Phillips v. Armour & Co., 196 P. 245; Burns v. So. Pac. Co., 185 P. 875; Dippel v. Juliano, 137 A. 516; Carr v. Burke, 169 N.Y.S. 981; Finegan v. Piercy Cont. Co., 178 N.Y.S. 785; Braxton v. Mendelson, 179 N.Y.S. 845; Core v. Riska, 204 S.W. 1149; Philadelphia Coal & Iron Co. v. Barrie, 179 F. 50; Sexton v. Railroad Co., 99 N.Y.S. 1113; Muldon v. City Fireproofing Co., 119 N.Y.S. 320; Weber v. Becker, 136 N.Y.S. 119; Samuelian v. Am. Tool & Mach. Co., 46 N.E. 98. (4) Instruction 3, as modified by the court, was erroneous for the following reasons: (a) The instruction authorizes a finding that Rindskopf's driver was guilty of negligence without defining the term. Magrane v. Railroad Co., 183 Mo. 119; Hinzeman v. Railroad, 182 Mo. 624; Rayburn v. Phillips, 160 Mo.App. 534; Fay v. United Rys. Co., 205 Mo.App. 521; Cornett v. Railroad, 158 Mo.App. 367. (b) The instruction submits a question of law to the jury in that it authorizes a finding of negligence without defining the term, and without setting out facts which, if found, would constitute negligence. Casey v. Bridge Co., 114 Mo.App. 64; Goodwin v. Railroad, 75 Mo. 75; Yarnall v. Railroad, 75 Mo. 583; Winslow v. Railroad, 192 S.W. 125; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14; Barnhill v. Pateet, 211 S.W. 107; City Trust Co. v. Crockett, 309 Mo. 683; Dalton v. Redemeyer, 158 Mo.App. 190; Webb v. Carter, 121 Mo.App. 147. (c) The instruction fails to restrict the jury to the negligence pleaded. Allen v. Mo. Pac. Ry. Co., 294 S.W. 80; Feldewerth v. Wabash Ry. Co., 181 Mo.App. 630; State ex rel. v. Ellison, 272 Mo. 571. (d) The jury was authorized to consider antecedent negligence, which was improper under the theory of the instruction. Freeman v. Berberich, 60 S.W.2d 393; Kloeckener v. St. Louis Pub. Serv. Co., 53 S.W.2d 1043; Alexander v. Ry. Co., 327 Mo. 1012; State ex rel. Fleming v. Bland, 322 Mo. 565. (5) Instruction 4, given at the instance of defendant Ambruster, was erroneous, because: (a) It assumes a controverted fact, and thus invades the province of the jury. Miller v. Busey, 186 S.W. 983; Wright v. Fonda & Higgins, 44 Mo.App. 634; Stipel v. Piggott, 219 Mo.App. 223; Lorie v. Lumbermen's Mutual Cas. Co., 8 S.W.2d 81; Barr v. Nafziger Baking Co., 328 Mo. 423, 41 S.W.2d 559; Clark v. Atchinson & Eastern Bridge, 24 S.W.2d 143. (6) The damages are excessive. Crockett v. Kansas City Ry. Co., 243 S.W. 902.

Eagleton, Henwood & Waechter for Catherine O'Brien.

(1) A master is not relieved of responsibility for the negligent acts of one in his general employment unless at the time a new and similar relationship of master and servant exists between that person and a third party. (a) A servant in the general employment of one person must at the time be subject to and under the exclusive control and direction of a third party in order to relieve the general employer of responsibility for the servant's wrongful act. Burke v. Shaw Transfer Co., 211 Mo.App. 353, 243 S.W. 449; State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 384; Boroughf v. Schmidt, 259 S.W. 881; Standard Oil Co. v. Anderson, 212 U.S. 215; Garvin v. Ry. Co., 100 Mo.App. 617, 75 S.W. 193. (b) A person temporarily under the direction of a third party where the work done is part of a larger task, remains the servant of the general employer where such direction concerns matters of cooperation only. Standard Oil Co. v. Anderson, 212 U.S. 215; Scherer v. Bryant, 273 Mo. 596, 201 S.W. 900; Hurbut v. Wabash Ry. Co., 130 Mo. 657, 31 S.W. 1051. (2) The court's modification of an erroneous instruction is not error. (a) One of three defendants whose negligence contributed to cause the injury complained of cannot limit his liability by invoking the humanitarian doctrine. Nyberg v. Wells, 14 S.W.2d 529; Bradley v. Becker, 11 S.W.2d 8; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Taylor v. Grand Ave. Ry. Co., 137 Mo. 363, 39 S.W. 88; Miller v. United Rys. Co., 155 Mo.App. 528, 134 S.W. 1045; Carr v. St. Louis Auto Supply Co., 293 Mo. 562, 239 S.W. 827. (b) An instruction which does not purport to cover the whole case or direct a verdict is not erroneous because it is in general terms and does not submit facts constituting negligence where appellant failed to ask a more specific one. Pavlo v. Forum Lunch Co., 19 S.W.2d 510; Dauber v. Josephson, 237 S.W. 149; Sweeney v. K. C. Cable Co., 150 Mo. 385, 51 S.W. 682; Van Horn v. Union I. & F. Co., 31 S.W.2d 262; Corbin v. Ry. Co., 41 S.W.2d 832; Crockett v. K. C. Railway Co., 243 S.W. 902. (c) An instruction which is in general terms does not constitute reversible error as being broader than the pleading if the evidence covers only the specific acts of negligence complained of in the petition. Riley v. Independence, 258 Mo. 671, 167 S.W. 1022; Murphy v. Duerbeck, 19 S.W. 1040; Gately v. Ry. Co., 56 S.W.2d 54; Morris v. Union Depot Bridge & Term. Co., 8 S.W.2d 11. (3) An instruction which defines the rights of a codefendant, and which does not affect the liability of the other defendant cannot be relied upon as erroneous by the latter against whom judgment was rendered, simply because it is too favorable to the former. Maher v. Donk Bros. Coal & Coke Co., 20 S.W.2d 888; Neal v. Curtis & Co. Mfg. Co., 328 Mo. 389, 41 S.W.2d 543; Clark v. Railroad, 234 Mo. 396, 137 S.W. 583; O'Rourke v. Lindell, 142 Mo. 352, 44 S.W. 254; Beave v. Transit Co., 212 Mo. 355, 111 S.W. 52; Wiggins v. St. Louis, 135 Mo. 588, 37 S.W. 528; Leighton v. Davis, 260 S.W. 986; Brickell v. Fleming, 281 S.W. 95. (4) The verdict was fair and reasonable and should not be disturbed. (a) Where the verdict is not a mere matter of computation, it will be presumed to be fair and reasonable, and will not be disturbed unless it is so grossly excessive in reference to the evidence as to compel a conviction that it is the result of passion, prejudice or bias on the part of the jury. Manley v. Wells, 292 S.W. 67; Laughlin v. Rys. Co., 275 Mo. 459; Busby v. Tel. Co., 287 S.W. 434; Westervelt v. Transit Co., 222 Mo. 325; Hoover v. Ry. Co., 227 S.W. 77; Scare v. Ry. Co., 260 S.W. 85; Goetz v. Ambs, 27 Mo. 28; Gurley v. Railroad, 104 Mo. 211; Gott v. Shoe Co., 2 S.W.2d 785. (b) The award is fair and reasonable as compared with judgments upheld in similar cases. Lewis v. St. Louis Ind. Pack. Co., 3 S.W.2d 244; Kammerer v. Wells, 299 Mo. 247, 252 S.W. 730; Taylor v. Railroad, 279 S.W. 115; Margulis v. Stamping Co., 23 S.W.2d 1049.

Allen, Moser & Marsalek for Robert J. Ambruster.

(1) To relieve himself of liability, under the circumstances, it would have been necessary for appellant Rindskopf to show that he had surrendered complete control of Hilton and that Hilton at the time was under Ambruster's control exclusively. The evidence discloses a contrary state of facts. 18 R. C. L. 784, sec. 244; Standard Oil Co. v Anderson, 212 U.S. 215; State ex rel. v. Trimble, 250 S.W. 384; Garven v. Ry. Co., 100 Mo.App. 620; Boroughf v. Schmidt, 259 S.W. 881; Hamble v. Ry. Co., 164 F. 410. (a) It is necessary to carefully distinguish between authoritative direction and control and mere suggestion as to details or necessary co-operation, where the work furnished is part of a larger undertaking. The distinction applies most pertinently to the relationship between Hilton and Rindskopf as compared with Hilton and Ambruster. Standard Oil Co. v. Anderson, supra; State ex rel. v. Trimble, supra; Scherer v. Bryant, 273 Mo. 596; Boroughf v. Schmidt, supra. (b) The question of control is one for the jury. State ex rel. v. Trimble, supra; Hurlbut v. Wabash Ry. Co., 130 Mo. 657; Scherer v. Bryant, 273 Mo. 605. (2) It is not error to assume in instructions the existence of an uncontroverted fact. McGuire v. Amyx, 317 Mo. 1074; ...