Ellegood v. Brashear Freight Lines

• Citation: 162 S.W.2d 628,236 Mo.App. 971
• Parties: NORMAN W. ELLEGOOD, RESPONDENT, v. BRASHEAR FREIGHT LINES, INCORPORATED, A CORPORATION, APPELLANT
• Decision Date: 02 June 1942
• Court: Court of Appeal of Missouri (US)

162 S.W.2d 628

236 Mo.App. 971

NORMAN W. ELLEGOOD, RESPONDENT, v. BRASHEAR FREIGHT LINES, INCORPORATED, A CORPORATION, APPELLANT

Court of Appeals of Missouri, St. Louis

June 2, 1942

Appeal from the Circuit Court of the City of St. Louis.--Hon William S. Connor, Judge.

REVERSED.

Judgment reversed.

S. C Rogers for appellant.

(1) (a) Secs. 3695 (c), 3698 (a), R. S. Mo. 1939; Stockton v Anderson Motor Service Co., 230 Mo.App. 211, 89 S.W.2d 573; Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918; Murphy v. Wells-Lamont-Smith Corporation, 155 S.W.2d 284; Downey v. Kansas City Gas Co., 338 Mo. 803, 92 S.W.2d 580; St. Louis Police Relief Ass'n v. Aetna Life Ins. Co., 154 S.W.2d 782; Kearley v. St. Louis Car Co., 111 S.W.2d 976; Gardner v. Stout, 342 Mo. 1206, 119 S.W.2d 790; Crabtree v. Ramsey, 115 S.W.2d 14; Cobb v. Standard Accident Ins. Co., 31 S.W.2d 573; Morehead v. Grigsby, 234 Mo.App. 426, 132 S.W.2d 237; Simpson v. New Madrid Stave Co., 227 Mo.App. 331, 52 S.W.2d 615; Cates v. Williamson, 117 S.W.2d 655; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174; Schraner v. Massman Construction Co., 48 S.W.2d 104; 71 C. J., pp. 490, 697, 715, secs. 212, 438, notes 64, 65, sec. 443, note 60a; Berry v. Atlanta Greyhound Lines, 30 F. Sup. 188; Boseman v. Pacific Mills, 8 S.E.2d 878, 193 S.Ct. 479; Marchbank v. Duke Power Co., 2 S.E.2d 825, 190 S.Ct. 336; Hoard v. Sears, Roebuck & Co., 122 Conn. 185, 188 A. 269; Mitchell v. St. Louis Smelting & Refining Company, 202 Mo.App. 251, 215 S.W. 506. (b) The testimony of respondent was indefinite and uncertain, and as to the cause of the claimed accident, the jury was required to guess or speculate. Forsythe v. Railway Express Agency, 125 S.W.2d 539; Phillips v. Traveler's Ins. Co., 288 Mo. 175; Kimme v. Terminal Railroad Assn., 334 Mo. 596, 66 S.W.2d 561; Weber v. Valier & Spies Milling Co., 242 S.W. 985; Derschow v. St. Louis Public Service Co., 95 S.W.2d 1173; Ingram v. Great Lakes Pipe Line Co., 153 S.W.2d 547; Grubb v. Curry et al., 72 S.W.2d 863; Draper v. Louisville & N. R. Co., 156 S.W.2d 626. (c) Sec. 3698 (a), R. S. 1939. (d) In all claims cognizable by the compensation, its jurisdiction is exclusive. Duncan v. Thompson, 146 S.W.2d 112; Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; State ex rel. v. Smith, 134 S.W.2d 1061. (2) Engle v. St. Joseph Railway, Light, Heat and Power Co., 44 S.W.2d 175; Hearon v. Himmelberger-Harrison Lbr. Co., 206 Mo.App. 463; Baranovic v. C. A. Moreno Co., 342 Mo. 322, 114 S.W.2d 1043; Marsanick v. Luechtefeld, 157 S.W.2d 537; Macklin v. Fogel Construction Co., 326 Mo. 38, 31 S.W.2d 14; Bouligny v. Metropolitan Life Ins. Co., 133 S.W.2d 1094; Usona Manufacturing Co. v. Shubert-Christy Corp., 132 S.W.2d 1101; Anderson v. Kraft, 129 S.W.2d 85; Rucker v. Alton R. R., 343 Mo. 929, 123 S.W.2d 24; State ex rel. v. Ellison, 272 Mo. 571. The second instruction contains several of the vices of instruction number 1; it assumes disputed facts and directs a verdict for the plaintiff. Meyer v. Wells Realty & Investment Co., 292 S.W.2d 17; Svehla v. Taxi Owners Association, 157 S.W.2d 225.

No attorney for respondent.

ANDERSON, J. Hughes, P. J., and McCullen, J., concur.

OPINION

ANDERSON, J.--

This is an action for damages for personal injuries sustained by Norman W. Ellegood, while employed on the premises of the appellant, Brashear Freight Lines, Inc. The suit was filed against appellant and Harold Curtis, but at the close of plaintiff's case the court directed a verdict for defendant Curtis, and the cause proceeded against appellant as the sole remaining defendant. The trial resulted in a verdict and judgment for plaintiff.

The alleged accident occurred on August 31, 1936. At that time, and for some time prior thereto, plaintiff was employed by defendant Curtis to drive a tractor truck. On some date prior to the accident, Curtis entered into an agreement with appellant, whereby the services of plaintiff and the truck were furnished to appellant for a consideration. Plaintiff continued to be paid his wages by defendant Curtis, but was engaged wholly in the business of appellant, which was that of hauling and carrying freight by means of motor trucks and trailers.

At the trial plaintiff gave the following testimony:

"Q. From whom did you get orders as to where you were to deliver trailers? A. Buster Brashear or the dispatcher.

"Q. They were among the working force of Brashear Freight Lines, Incorporated? A. Yes, sir.

"Q. Now, who told you to take orders from these people, if anybody? A. Buster did.

"Q. Buster told you to take them from the foreman? A. Buster Brashear told me that I would work directly under the dispatcher.

"Q. What was the dispatcher's name on August 31st, 1936? A. I don't remember what that fellow's name was.

"Q. Now, at the time you were employed by Mr. Curtis, or they object to the word employment, that you alleged you were employed and he gave you a tractor, he told you to report to the Brashear's? A. Yes, sir.

"Q. To whom did he tell you to report down there, anybody in particular? A. He went down with me. Mr. Curtis went with me the first day I was down there.

"Q. How did you get in the place? A. I was introduced to Buster Brashear, by Mr. Curtis.

"Q. What did Mr. Curtis say to Mr. Brashear? A. Mr. Curtis told Mr. Brashear, 'Here is the man that will drive that Indiana truck for you.'

"Q. What did Brashear say? A. He says, 'All right,' and I went to work that day. That same morning and Mr. Curtis left.

. . . .

"Q. And you just took the tractor and kept it at your house, didn't you, sometimes a week at a time before you would see Mr. Curtis? A. As a general rule I never saw Mr. Curtis only every week.

"Q. Where did you get your gas and oil? A. At Brashear's."

The evidence shows that Buster Brashear is vice-president and operating manager of Brashear Freight Lines, Inc.

On August 31, 1936, plaintiff received directions from appellant to haul a trailer loaded with scrap copper wire from the appellant's yard at 527 South Theresa, in the City of St. Louis, to the plant of Lewin Metal Works in East St. Louis, Illinois. The trailer in question had a capacity of 22,000 pounds, but was, on this occasion, according to plaintiff's evidence, loaded with 39,000 pounds of metal. Plaintiff at the time was unaware of the overloading of the trailer. He backed his truck into the trailer, and made a coupling by means of a kingpin on the foot of the trailer, which kingpin fits into a slot in the fifth wheel on the back end of the truck or tractor. When properly in place the kingpin is locked by a locking device, which fits into a collar or groove near the bottom of the kingpin. On this particular occasion the kingpin was chipped below the groove at the bottom end, and when the truck was moved forward the kingpin pulled out and the trailer became disconnected, with the result that the full force of the weight of the trailer came down on the rear end of the truck or tractor, causing the front end of the truck to be lifted off the ground and then dropped with great force, throwing plaintiff around in the cab of the truck, and causing the injuries for which he sued.

The petition charged the following negligence: (1) That defendants negligently allowed the tractor truck and trailer to become defective, unsafe, and out of order, in that the fifth wheel was cracked, broken, and defective; (2) that the kingpin was broken off; (3) that said trailer was loaded beyond its capacity so that it was impossible to move it out of its parking place, all of which facts the defendant knew, or by the exercise of ordinary care could have known; and, (4) that defendant Brashear Freight Lines, Inc., directed and ordered plaintiff into a hidden danger known to it, but unknown to plaintiff, without warning plaintiff thereof.

Appellant answered with a plea of the general issue, assumption of risk, contributory negligence, and a further plea that at the time of the alleged accident to plaintiff, appellant was subject to the provisions of the Missouri Workmen's Compensation Act, and that whatever rights plaintiff had were under said act.

After the accident plaintiff reported to the office of Dr. Pierce J. Reilly for medical attention. He then took the tractor to appellant's premises, made out an accident report to Brashear, and went home, where he remained for two days. He then reported back to work, and worked for about five months, driving the same tractor. During those five months his arm bothered him, and on several occasions he requested Mr. Brashear to send him to a doctor. On one occasion Mr. Brashear told plaintiff that he was working for Curtis, and on another occasion told him that he was working for him, but that he (Brashear) was not responsible, and that plaintiff should get the doctor the best way he could. Finally, on February 2, 1937, Mr. Brashear said to him, ". . . . you are always complaining, you are fired, I don't need you any more. Go on home with your truck." Plaintiff then left, taking the tractor to Mr. Curtis.

The evidence further shows that on September 15, 1936, plaintiff filed a claim for compensation against appellant herein, with the Missouri Workmen's Compensation Commission.

At the conclusion of the case, appellant requested the court to give and read to the jury an instruction in the nature of a demurrer to the evidence. This request the court denied, and the denial forms the basis of appellant's first assignment of error in this court.

In support of this assignment, appellant contends that plaintiff was an employee of Curtis, an independent contractor, and that since the alleged accident happened on appellant's premises, in the usual course of its business plaintiff's only remedy was that given to him...