Crain v. Webster Elec. Co-op.

Decision Date17 May 1978
Docket Number10031,Nos. 10030,s. 10030
Citation568 S.W.2d 781
PartiesConey CRAIN, Plaintiff-Respondent and Plaintiff-Appellant, v. WEBSTER ELECTRIC COOPERATIVE, Defendant-Appellant and Defendant-Respondent.
CourtMissouri Court of Appeals

Harold J. Fisher, William H. McDonald, Woolsey, Fisher, Clark, Whiteaker & Stenger, Springfield, for defendant-appellant and defendant-respondent.

Bernard A. Barken, St. Louis, Turner White, III, Springfield, for plaintiff-respondent and plaintiff-appellant.

Before STONE, P. J., and HOGAN and FLANIGAN, JJ.


This is an action for the wrongful death of Danny Allen Crain who was electrocuted on December 14, 1972, when he came into contact with a power line owned by defendant Webster Electric Cooperative ("Webster"). Danny was born June 28, 1952. Coney Crain, Danny's surviving father, is the plaintiff. A jury found in favor of plaintiff and the verdict was in the amount of $41,600. Defendant appeals.

It is necessary to consider four of defendant's "points relied on." The validity of any of the first three points would require outright reversal. The fourth, if valid, requires reversal and remand. This court finds that the first three points are not valid but that the fourth point is meritorious.

Defendant's first point is, in essence, that the trial court should have dismissed the action (and erred in not granting defendant's in-trial motions for that relief) because: (a) the petition failed to allege that Danny's mother "was unable, declined, or refused to join" 1 in the action and (b) the evidence was insufficient to show that Danny's mother was unable or declined or refused to join in the action.

The allegations of the petition included the following:

"2. That at the time of his death, the said Danny Allen Crain was an unmarried, minor child, and was survived by his father, the plaintiff, herein, and by his mother, Aline Bohling; that plaintiff brings this action on his behalf for the use and benefit of the said Aline Bohling, pursuant to the Revised Statutes of the State of Missouri, Section 537.080; that plaintiff had the sole care, custody and control of the said Danny Allen Crain, pursuant to a decree of divorce from the said Aline Bohling . . . "

Prong (b) of defendant's first point will be examined first. Plaintiff's attorney Bernard A. Barken offered and the court received into evidence a copy of a letter dated March 5, 1974, which Mr. Barken sent to decedent's mother, Mrs. Aline Bohling. Material portions of the letter are set forth below. 2

Mr. Barken testified that the letter was sent to Mrs. Bohling by certified mail. The envelope containing the letter was accorded certified mail number 641861. A copy of the return receipt for certified mail number 641861, bearing the signature "Mrs. Aline Bohling," was produced. The receipt showed the date of delivery to be March 8, 1974. Mr. Barken also testified, "I have received no written or oral response to the letter from Mrs. Bohling or from anyone else on her behalf."

Defendant made no objection to the admissibility of the foregoing evidence. 3 Defendant's attack, initiated below and renewed here, is upon its sufficiency. Defendant claims that the evidence is insufficient because it fails to show (1) "that Mrs. Bohling's address was in fact that which was shown on the letter"; (2) "that the letter was mailed (how, when and where)"; and (3) "that the postage was prepaid."

Defendant's reply brief in this court withdraws, at least tacitly, ground (1) and rightly so because one of Defendant's exhibits showed Mrs. Bohling's address to be that stated in the letter.

Grounds (2) and (3) are also unavailing. Testimony by Mr. Barken that the letter was sent to Mrs. Bohling by certified mail was equivalent to a statement by the witness that it was properly addressed stamped and deposited in a proper place for the receipt of mail. J. L. Price Brokerage Co. v. Chicago R.I. & P. Ry. Co., 207 Mo.App. 8, 230 S.W. 374, 377(3) (1921). That case also states that "such testimony is sufficient to raise a presumption that it was received in due course." Additionally, the return receipt itself was prima facie evidence of the delivery of the letter on the date shown on the receipt, 39 U.S.C.A. § 5013; 39 U.S.C.A. § 5010. Defendant offered no evidence to the contrary.

Plaintiff's evidence of the fact that Mrs. Bohling declined to join in the action was not insufficient for any of the reasons assigned by defendant. Accordingly there is no merit to prong (b) of defendant's first point. This determination in effect disposes of prong (a).

Rule 55.33(b) provides, in pertinent part:

"(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence."

The issue of Mrs. Bohling's declining to join in the action was tried by the implied consent of the parties, defendant having made no objection to the evidence on that issue. 4 Accordingly the issue is to be treated in all respects as if it had been raised in the pleadings. Rule 55.33(b). The result of the trial of that issue is unaffected by the failure to amend the pleadings so as to cause them to conform to the evidence.

Defendant made no objection to the evidence under discussion either on the ground that it was not within the issues made by the pleadings or on any other ground. Whether the petition in its original form, unaided by the mentioned evidence, would have been insufficient need not be, and is not, ruled. 5

Defendant's first point has no merit.

Defendant's second point is that the trial court erred in failing to sustain defendant's motion for a directed verdict, filed at the close of all of the evidence, because the evidence showed As a matter of law that Danny was a "borrowed servant" of defendant, and that plaintiff's sole remedy is that afforded by the Workmen's Compensation Law.

When a defendant in a common law action for damages asserts that the action will not lie because the injured person (or, as here, the decedent) was the "borrowed servant" of the defendant, the defense is an affirmative one and the burden rests upon the defendant to plead and prove it. Dunn v. General Motors Corp., 466 S.W.2d 700, 703(2) (Mo.1971); Sippel v. Custom Craft Tile, Inc., 480 S.W.2d 87, 91(4) (Mo.App.1972). If the evidence showed, as a matter of law, that Danny was a "borrowed servant" of defendant, the trial court should have directed a verdict for defendant for, in that situation, plaintiff's "exclusive remedy was under the Workmen's Compensation Act. That act, if applicable, would supersede any right plaintiff might otherwise have had to maintain an action at common law." Walton v. United States Steel Corporation, 362 S.W.2d 617, 620 (Mo.1962); Sippel, supra, 480 S.W.2d at p. 89; § 287.120(2).

In reviewing the trial court's ruling on defendant's motion for a directed verdict this court must view the evidence in its light most favorable to the plaintiff and plaintiff is to be given the benefit of all reasonable inferences. Black v. Kansas City Southern Ry. Co., 436 S.W.2d 19, 23(1) (Mo. banc 1968). Defendant's evidence must be disregarded unless it aids plaintiff's case. Kaelin v. Nuelle, 537 S.W.2d 226, 232(6) (Mo.App.1976); Anderson v. Welty, 334 S.W.2d 132, 133(1, 2) (Mo.App.1960). A trial court "is ordinarily not justified in directing a verdict in favor of the party having the burden of proof, when the evidence relied on consists of oral testimony." Price v. Bangert Brothers Road Builders, Inc., 490 S.W.2d 53, 57(5) (Mo.1973); see also Young v. Hall, 280 S.W.2d 679, 682 (Mo.App.1955). 6

"A (trial) court should never withdraw a question from the jury, unless 'all reasonable men, in the honest exercise of a fair, impartial judgment, would draw the same conclusion from the facts which condition the issue.' . . . Where there is uncertainty arising 'from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury.' " Walton v. United States Steel Corporation, 362 S.W.2d 617, 621(2) (Mo.1962).

Our supreme court has said: "The essential elements constituting a 'borrowed servant' relationship have been stated several times. Essentially, they are: '(a) consent on the part of the employee to work for the special employer; (b) actual entry by the employee upon the work of and for the special master pursuant to an express or implied contract so to do; and (c) power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.' Ellegood v. Brashear Freight Lines, Inc., 236 Mo.App 971, 162 S.W.2d 628 (1942); Feldmann v. Dot Delivery Service, 425 S.W.2d 491 (Mo.App.1968). Slightly differently worded definitions have been stated, Dickhaut v. Bilyeu Refrigerated Transport Corp., 441 S.W.2d 54, l. c. 57 (Mo.1969), 1A Larson's Workmen's...

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