Clayton v. Wells

• Decision Date: 07 April 1930
• Docket Number: 28444,28445
• Parties: Leslie Clyde Clayton, By Joseph H. Clayton, His Next Friend, Appellant, v. Rufus Wells, Jr. Leslie Clyde Clayton, By Joseph H. Clayton, His Next Friend, v. Hydraulic-Press Brick Company, Appellant, and Rufus Wells, Jr
• Court: Missouri Supreme Court

26 S.W.2d 969

324 Mo. 1176

Leslie Clyde Clayton, By Joseph H. Clayton, His Next Friend, Appellant, v. Rufus Wells, Jr. Leslie Clyde Clayton, By Joseph H. Clayton, His Next Friend, v. Hydraulic-Press Brick Company, Appellant, and Rufus Wells, Jr

Nos. 28444, 28445

Supreme Court of Missouri

April 7, 1930

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

Affirmed.

Eliot Blayney & Bedal for appellant, Hydraulic-Press Brick Company.

(1) Plaintiff was not a servant of the brick company. The test of an independent contractor is not the fact of actual interference with control, but the right to interfere. Aubuchon v. Const. Co., 291 S.W. 187; Burgess v Garvin, 272 S.W. 108; Borah v. Motor Car Co., 257 S.W. 145; Fitzgerald v. Cardwell, 207 Mo.App. 514; 39 C. J. 1316, par. 1518. (2) The court should have declared as a matter of law that the brick company was an independent contractor, as the construction of the contract was for the court and the contract showed no retention of any control as to the details of the work. Gayle v. Car & Fdry. Co., 177 Mo. 427; Kipp v. Oyster, 133 Mo.App. 711; Long v. Moon, 107 Mo. 334; Mallory v. Pure Ice Co., 6 S.W.2d 623. (3) Even on plaintiff's testimony the supervision by the brick company of the elements of getting the clay, where to dump the clay and where to drive in the shed in order to dump the clay did not constitute plaintiff a servant of the brick company. Fink v. Furnace Co., 82 Mo. 276; Kiser v. Suppe, 133 Mo.App. 19; Casement v. Brown, 148 U.S. 615; Salmon v. Kansas City, 241 Mo. 14; Gerber v. Kansas City, 263 S.W. 432; McGrath v. St. Louis, 215 Mo. 191; Jackson v. Butler, 249 Mo. 342; Thurston v. Ry. Co., 168 S.W. 236; 39 C. J. 1319, par. 1521; 39 C. J. 1323, par. 1526; 39 C. J. 1322, par. 1524. (4) Plaintiff's case showed that he was guilty of contributory negligence as a matter of law. Goetz v. Brick Co., 9 S.W.2d 606; Slagel v. Lbr. Co., 138 Mo.App. 432; Forbes v. Dunnavant, 198 Mo. 193; Watson v. Carthage Co., 290 S.W. 649; Gwinn v. Hydro-Power Co., 195 S.W. 504; Modlagl v. Iron & Foundry Co., 248 Mo. 587; Humphrey v. Lusk, 196 Mo.App. 442. (5) Instructions 1 and 3 were broader than the pleadings and the proof, and were therefore erroneous. Owens v. McCleary, 281 S.W. 685; Crone v. Railways Co., 236 S.W. 656; Allen v. Transit Co., 183 Mo. 411. (6) The amount allowed by the jury was excessive. Davenport etc. v. Elec. Co., 242 Mo. 111; Campbell etc. v. Rys. Co., 243 Mo. 141; Chitty v. Railroad Co., 166 Mo. 435; Henry v. Ry. Co., 282 S.W. 423; Wagner v. Constr. Co., 220 S.W. 890; Bryant v. Ry. Co., 228 S.W. 472; Jones v. Railroad Co., 228 S.W. 780; Fitzsimmons v. Railroad Co., 242 S.W. 915; Rose v. Railroad Co., 289 S.W. 913. (7) The court having permitted a disclosure that there was liability insurance in the case, should have permitted appellant to disclose it carried no liability insurance.

N. Murry Edwards for respondent.

(1) Plaintiff was a servant of the brick company in the hauling of clay at its plant where he was injured. The evidence showed that the company in its written contract with Wells reserved the right of control by designating the number and kind of teams and drivers, fixing the rate of wages to be paid them and reserving the right to designate the place where and time when they should work and by actually supervising and controlling the work with respect to the manner in which the details were performed. Lawhon v. Veterinary Laboratories (Mo.), 252 S.W. 48; Diehl v. Fire Brick Co., 299 Mo. 641; Porter v. Estate Co., 201 Mo.App. 27; Aubuchon v. Const. Co. (Mo. App.), 291 S.W. 189; Simmons v. Murray, 234 S.W. 1009. (a) Although plaintiff received his wages from Wells he was a servant of the company because that company had the right to and did control and direct him in his work. Holloway v. Schield, 294 Mo. 512; Karguth v. Coal & Coke Co., 299 Mo. 580. (b) As the evidence showed that plaintiff was subject to the direction and control of defendant company in the manner, method and means in which he did the work required, the court did not err in refusing to declare as a matter of law that the brick company was an independent contractor. Hoelker v. Am. Press Co. (Mo.), 296 S.W. 1011; Lawhon v. Veterinary Laboratories (Mo.), 252 S.W. 48. (2) Plaintiff was not guilty of contributory negligence as a matter of law because the evidence showed that he could not see the condition into which he was moving and did not know how close the clay was to the cross-beams ahead of him as he drove north just before he was injured. The danger was not so glaring as to warrant an ordinarily careful and prudent person of plaintiff's age and experience to refuse to obey the order of his superior, to drive through the clay shed where he was injured. Ingram v. Coal Co. (Mo.) 5 S.W.2d 415; Brann v. Brick Co. (Mo. App.), 288 S.W. 943; Schlavick v. Shoe Co. (Mo. App.), 137 S.W. 81. The evidence showed that plaintiff was ordered to drive through the shed at the place where he was injured, by the company's superintendent. Therefore, plaintiff had a right to assume that he could drive through said place with safety, and was not guilty of contributory negligence as a matter of law in obeying said order. McCarver v. Lead Co., 216 Mo.App. 370; Rutledge v. Swinney, 170 Mo.App. 251; Clayton v. Metalscrafts Corp. (Mo. App.), 12 S.W.2d 940; Gale v. Mill Co., 159 Mo.App. 653. (3) Instructions 1 and 3 are within both the scope of the pleadings and the evidence, and, therefore, proper. (a) Instruction 13 correctly stated the law. Diehl v. Fire Brick Co., 299 Mo. 641; Porter v. Withers Estate, 201 Mo.App. 27; Lawhon v. Veterinary Lab., 252 S.W. 44. (b) If Instruction 5 is in conflict with Instruction 13, which is correct, then Instruction 5 is erroneous and the court did not err in giving said Instruction 13. Moran v. Rys. Co. (Mo. App.), 232 S.W. 1113, Turner v. Morris, 142 Mo.App. 60; Shubart v. Mines etc. Co., 143 Mo.App. 574; Sparks v. Harvey, 214 S.W. 251. (4) The judgment of $ 16,000 is not excessive. The evidence showed plaintiff was seventeen years old at the time he suffered a fracture of the third lumbar vertebra, underwent an operation in which a piece of bone was removed from his shin and implanted in his back, spent eight months in the hospital and during most of the time was compelled to lie in a rigid position. Since leaving the hospital he has had to wear braces around his body. Three lumbar vertebrae joints are locked and his back is permanently stiff and weak, and he will never be able to do manual labor. His pain and suffering have been and will be severe and continuous. (5) The court did not err in refusing to permit the company to disclose to the jury that it carried no liability insurance on the showing, out of the hearing of the jury, that Wells carried insurance. Smith v. Cab Co. (Mo.), 19 S.W.2d 467; Malone v. Small (Mo. App.), 291 S.W. 163; Foulks v. Lehman, 17 S.W.2d 994; Maurizi v. Coal & Mining Co. (Mo.), 11 S.W.2d 275. (6) There was evidence tending to prove that the light where plaintiff was injured was insufficient; therefore, the court erred in refusing to give instruction lettered F offered by the plaintiff, which submitted to the jury the question of whether defendant Wells had furnished plaintiff with reasonably sufficient light to do the work required of him. Eaton v. Wallace (Mo.), 287 S.W. 616; Oakley v. Richards, 275 Mo. 266; Arnold v. Graham, 219 Mo.App. 249; Wendler v. House Furnishing Co., 165 Mo. 527; Carney v. Brewing Assn., 150 Mo.App. 437; Yost v. Cement Co., 191 Mo.App. 422. (7) The general instruction numbered 2 given by the court on behalf of plaintiff submitting the assignment of negligence against defendant Wells as to his failure to furnish a safe place to work, although it required the jury to find as one of the elements of an unsafe place that there was not sufficient light, did not deprive the plaintiff of the right to have his case submitted under Instruction F on the sole ground of light as to defendant Wells, because the jury might have returned a verdict against defendant Wells under Instruction F while finding for him under general Instruction 2. Northam v. Rys. Co. (Mo.), 176 S.W. 227; Evans v. Klusmeyer, 301 Mo. 352.

Jones, Hocker, Sullivan & Angert and Robert L. Aronson for respondent, Wells.

(1) The refusal of the trial court to give appellant's Instruction F was not prejudicial error. (a) The matter contained therein was embodied in Instruction No. 2, which had been given, and it is not reversible error to refuse an instruction covered by others. Leighton v. Davis, 260 S.W. 986; Flenner v. Southwest Mo. R. Co., 290 S.W. 78; Rock v. Keller, 312 Mo. 458; Metropolitan Paving Co. v. Investment Co., 309 Mo 638. (b) Respondent's mastership and control over appellant had been relinquished temporarily while the latter was performing the work of a third person. Consequently, respondent was not bound to provide sufficient light for the work of appellant and the instruction was improper. Hardy v. Shedden Co., 78 F. 610, 24 C. C. A. 261, 37 L. R. A. 33; Winkleblack v. Mining Co., 187 S.W. 95; Simmons v. Murray, 234 S.W. 1009; Grothmann v. Hermann, 241 S.W. 461; Healy v. Stove Co., 161 Mo.App. 483. (c) Instruction F was improper under the rule that a master is not bound to provide a safe working place or proper light when the service is performed on premises belonging to and controlled by a third person. Channon v. Sanford Co., 70 Conn. 573, 41 L. R. A. 200; Roche v. Ironworks Co., 140 Cal. 563; Wilson v. Improvement Co., 69 W.Va. 778, 45 L. R. A. (N. S.) 271; Lochring v. Const. Co., 118 Mo.App. 163; Lofty v. Const. Co., 256 S.W. 83; Powell v. Walker, 195 Mo.App. 150. (2) Since respondent's demurrer to the evidence should have been sustained...