Coble v. Economy Forms Corp.

• Decision Date: 27 May 1957
• Docket Number: No. 7589,7589
• Citation: 304 S.W.2d 47
• Parties: Alvie James COBLE, Plaintiff-Appellant, v. ECONOMY FORMS CORPORATION, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 47

304 S.W.2d 47

Alvie James COBLE, Plaintiff-Appellant, v.ECONOMY FORMS CORPORATION, Defendant-Respondent.

No. 7589.

Springfield Court of Appeals, Missouri.

May 27, 1957.

Walker, Daniel, Clampett & Rittershouse, Springfield, for plaintiff-appellant.

Frank C. Mann, Mann, Walter, Powell & Burkart, Springfield, for defendant-respondent.

RUARK, Judge.

Here is an appeal from a judgment dismissing plaintiff's second amended petition because of failure to state a claim upon which relief could be granted.

The petition charges that one Pyle had a contract to build a high school at Springfield; that Pyle and defendant, Economy Forms Corporation, entered into a contract entitled 'Form Rental Service Agreement,' which contract was incorporated into the petition.This contract provided (to a mind wholly unsullied by any familiarity with engineering formulas) for a rather complicated method of computing the rental to be charged, including a 'Basic Service Charge'; 'Time Rental Charges' to be computed on rates listed in a schedule (which varied in different months of the year) per thousand square feet of equipment used per calendar day; a 'Spreader Tie Charge' at the rate of $0.05 per spreader tie plus $0.0046 per inch of nominal length or fraction thereof; and an 'Additional Work Charge' at the rate of $.055 per square foot of concrete form surface in addition to the first 95,600 square feet.Paragraph 7 of such agreement provided:

'7.Lessee agrees to employ a steel forms foreman (hereinafter called Foreman) acceptable to Lessor during the full time that any part of the equipment delivered hereunder is retained by Lessee.The compensation of this foreman, to be payable weekly, shall be at the prevailing carpenter foreman rate at the construction project covered by this Agreement.However, this compensation shall be not less than $2.87 1/2 per hour with a minimum of time and one-half for over forty hours per week and with a minimum weekly pay of $125.00.(Ref. Part 15herein.)'

Paragraph 15 stated:

'15.In order to assist Lessee in employing a foreman, Lessor will furnish Lessee with the name or names of men acceptable of Lessor and endeavor to place them in communication with Lessee, it being understood that any such person engaged by Lessee shall be an employee of and responsible solely to Lessee.Lessor shall have neither control over nor direction of any such foreman, who shall be subject to discharge by Lessee at any time, and Lessor shall never be liable or responsible for any acts or omissions of any such foreman.In case of discharge, Lessee shall immediately employ another foreman acceptable to Lessor.

'Said foreman shall have direct charge and superintendence of the setting, stripping, using, care, reshipment and all other handling of the leased property under Lessee's supervision and direction, and when no steel from work is available may do other work on the construction project during regular working hours, as directed by Lessee and for which Lessee deems him qualified.Said foreman shall, on behalf of Lessee, make regular daily reports to Lessor of the cost and progress of the specified form work, of additional form work under Parts 6a and 6b herein, of the condition and use made of the equipment and other relevant data upon daily report sheets supplied by Lessor.In order to promote the form work, Lessor may give advice and suggestions to Lessee through said Foreman and shall not be liable therefor so long as it acts in good faith.Lessee shall be responsible for said Foreman's acts and omissions, including loss of and damage to Equipment as elsewhere provided herein.'

In pursuance of such agreement certain 'concrete and steel form equipment, accessories and plan service was delivered to the job site' for use in building 'foundation walls, tunnel entrance, plant box walls, piers and interior columns in gym.'

The petition then alleges that defendant was acquainted with the qualifications of one Marken through knowledge of its field service personnel based on other projects where defendant's steel forms were used and where Marken had acted as foreman; that under the agreement defendant submitted Marken's name as acceptable for foreman and put Marken in communication with Pyle, and thereafter Marken acted as steel forms foreman on the high school project.Defendant paid Marken mileage for his move to Springfield and, upon completion of the work, defendant also paid him the sum of $23.83 as a 'bonus' and an 'award' of $100 for having secured a satisfactory form job.After Pyle's school construction project was completed, Marken 'acted as steel forms foreman on another project where defendant's forms were being used.'

During the progress of the high school project Marken made daily reports, which reports included information as to man hours and labor costs for the men he supervised and square feet of form work erected and stripped.

The petition then charges that while he was acting as foreman on this project Marken was the agent, servant, employee, representative and supervisory employee of the defendant and was subject to its control; that plaintiff was employed, by Pyle, to work on the project and was assigned to the form crew under the supervision of Marken, 'performing work contemplated by the agreement * * * and involving defendant's forms,' and while so engaged was injured in a fall from a scaffold which was an 'integral part of the form work,' and which scaffold had been 'conceived, erected and maintained' under the control and supervision of Marken.

Recovery was sought on account of negligence in failing to provide a safe scaffold under the provisions of Sec. 292.090, RSMo 1949, V.A.M.S., and in failing to provide the protection required by Sec. 292.480.

The main question is, did the petition state a cause of action?

At the outset we note that the transcript includes, and the plaintiff-appellant's brief makes reference to, certain interrogatories and answers thereto.We cannot consider such interrogatories or their answers in passing upon the sufficiency of the petition.¹

We do, however, agree with another of appellant's contentions, i. e., that plaintiff is not bound by the provisions in the contract made between Pyle and the defendant to the effect that the person engaged as foreman should be an employee of and solely responsible to the lessee, without control over or direction by the lessor.Plaintiff, having pleaded the contract, cannot deny that it existed, but he was not a party to such contract and could plead and prove additional facts and circumstances showing actual employment and control over Marken regardless of how the lessor and lessee may have, in writing, purported to fix responsibility as between themselves.²

Turning to the main question: Disregarding for the moment the general statement in the petition that Marken was the servant-employee of the defendant, and taking all the pleaded facts, including the rental contract, do such facts make a jury question on the issue as to whether or not Market was the servant of the defendant?

It is impossible to write a brief but comprehensive definition which will encompass all situations where, and between whom, the relationship of master and servant exists.The basic ingredient of such relationship is the right in the master to control the physical activities of the servant, or the right to direct the employee in regard to the manner of performance.³In fact, one of the reasons for the existence of the doctrine of respondeat superior lies in this power of the master to exercise detailed control over the manner in which the work is done.⁴

Parenthetically, however, this 'right to control' must in some instances (at least in borrowed servant situations) be refined and distinguished from an arrangement which permits suggestions as to details, or a system of cooperation between the parties which delegates to one of them the privilege to specify the order and sequence of acts to be done, yet leaves the ultimate control in someone else.⁵

It is said that (except as to a joint undertaking) no man can serve two masters in the performance of one single act.However, he may, upon the same general undertaking, perform one act as servant of one and yet, in regard to the doing of some other thing, be acting as the servant of another or in another capacity; and the question then arises, whose business is he on?Whose act was he performing?To whose control was he subject at the exact time of the occurrence on account of which liability is claimed?⁶

In determining who has 'right of control' many and various factors are to be considered.No certain one of these factors is controlling; it depends upon the circumstances of the individual case.⁷Closely allied to the power of control is the ability to enforce orders in regard to the manner of performance, usually the right to fire the employee for failure to pursue the methods of and perform the acts in the manner required by the employer.⁸Some other factors which we deem pertinent to the case before us are: What was the aim, intention and belief of the parties in regard to the relationship?What was the interest of the party sought to be charged as master in the particular transaction which gives rise to the claim of liability, and whose purposes were being served?⁹Who had the right to say when this work should proceed?To whom did the employee look for continuance or discontinuance of employment in the work which he was doing, and for the payment of his regular wages?¹⁰

Laying these questions beside the situation pleaded: The intention and belief of Pyle and defendant is expressed in their agreement.True, plaintiff is not bound by such contract and can plead and prove additional facts which show a different relationship than that expressed, but until such contrary situation is shown the agreement has great weight in determining what the parties were trying to do.The...