Fuqua v. Lumbermen's Supply Co.

• Decision Date: 13 November 1934
• Citation: 76 S.W.2d 715,229 Mo.App. 210
• Parties: JOHN W. FUQUA ET AL., RESPONDENTS, v. LUMBERMEN'S SUPPLY CO. APPELLANT
• Court: Kansas Court of Appeals

76 S.W.2d 715

229 Mo.App. 210

JOHN W. FUQUA ET AL., RESPONDENTS, v. LUMBERMEN'S SUPPLY CO. APPELLANT

Court of Appeals of Missouri, Kansas City

November 13, 1934

Appeal from the Circuit Court of Buchanan County.--Hon J. V. Gaddy Judge.

Judgment affirmed.

F. J Frankenhoff and B. L. Kaufmann for respondent.

Stringfellow & Garvey for appellant.

OPINION

BLAND, J.

This is an action for the wrongful death of plaintiffs' six year old daughter. There was a verdict and judgment in favor of plaintiffs in the sum of $ 2,000. The defendant, the Lumbermen's Supply Company, has appealed.

Plaintiffs' child was killed by a truck backing over her. The truck was being driven at the time by the defendant, Orville Banks, who, it is alleged in the petition, was acting as the agent and servant of the defendant, Lumbermen's Supply Company. It is admitted that there was ample evidence for the consideration of the jury on the question of the negligence of the defendant Banks. The sole question now raised by the appellant (hereinafter called the defendant) is that, at the time of the casualty, Banks was not the servant of the defendant and, even if he were, he had stepped aside from his master's employment and was engaged in carrying out a purpose of his own or, at least, other than that of the defendant.

The evidence shows that the defendant was engaged in the coal business at 22nd & Olive Streets in the City of St. Joseph; that on the morning of March 25, 1933, the truck which killed the child left the defendant's yards loaded with two and one-half tons of coal which was to be delivered to four of its customers in South St. Joseph; that one LeRoy Clarke was hauling the coal for the defendant, having as his helper the said Orville Banks. Orville Banks was driving the truck and was accompanied by Clarke. Banks drove from defendant's yards west over various streets to Ninth Street, then south on Ninth Street to Duncan Street. Banks and Clarke lived in a house located at the northwest corner of Ninth & Duncan Streets. Banks lived in the rear of the house. The two men were cousins. They customarily entered the house through the back door. Clarke had had no breakfast. Banks turned from Ninth Street west on Duncan Street to let Clarke out at the rear of the house so the latter could eat his lunch. Upon letting Clarke out Banks started to go east on Duncan Street to Ninth Street to get some gasoline, thence to South St. Joseph to make his deliveries. However, in order to go east it was necessary for him to turn around. In order to turn Banks drove into an alley which was situated half a block west from Ninth Street intending to back out so as to turn his truck to the east or in the direction of Ninth Street. In backing the truck out of the alley he ran over the child, who died shortly afterwards.

The evidence further shows that defendant did not operate any delivery trucks of its own, but contracted with others to make its deliveries; that the company had six regular haulers but in rush times there was as many as twenty-five or thirty trucks hauling; that the truck in question belonged to one Earl Clarke, who was a brother of LeRoy Clarke. Defendant's manager, who was its sole witness, testified that Earl Clarke "sent trucks over there (to defendant's coal yards) and I believe he hauled himself, too."

Earl Clarke testified that he owned three trucks; that when he furnished trucks to the defendant it managed and operated them; that at the time of the casualty he was hiring his trucks out to various drivers who would supply their own helpers to haul coal for various companies in St. Joseph; that he hired them for a rental of one-half of the net profits; that he permitted his brother to take one of the trucks and use it as though he owned it and to make contracts with the defendant for hauling in his own name. There was testimony that he rented another one of the trucks to Orville Banks, who used it to haul coal for the defendant, furnishing his own helper and that defendant paid Banks for the work.

The history of LeRoy Clarke's relationship with the defendant begins with the execution of a written contract, dated October 1, 1932, in which Clarke is referred to as a "contract hauler" and the "party of the second part" and the defendant as the "party of the first part." The contract recites:

"Party of the first part agrees to employ party of the second part, an independent hauling contractor during the coal hauling season of 1932-33 to haul that part of the coal designated by party of the first part, and the party of the second part agrees to furnish suitable conveyances, baskets, scoops, forks, etc., to deliver said coal to the party of the first part's customers. Party of the second part also agrees to employ his own helper to carry, help load or unload, as is needed by the party of the second part."

The contract then provides for payment of the work at so much per ton, the amount depending upon the amount of the load and the territory in which the load was to be hauled, and for fifty cents per ton for carrying coal, when necessary, from the truck to the coal bin. It then reads as follows:

"It is distinctly understood that party of the second part is an independent contractor and that the party of the first part is in no way responsible for any acts of commission or omission on the part of the party of the second part or his helpers who are employed by him, or his equipment.

"It is further understood that the party of the second part acting distinctly as an independent contractor assumes full responsibility and liability in the fulfillment of this agreement."

Defendant's manager testified that the coal haulers, including LeRoy Clarke, were not kept busy all of the time hauling coal for it; that "The idea was, if we did not have work or tonnage for them, they could get work at some other coal companies. We didn't fire them but we were giving them that additional right. When we wanted them back we would go back and get them."

It appears that LeRoy Clarke operated under this contract until four or five weeks before the casualty, when the contract was terminated and he went to work for the Great Western Coal Company. In this connection LeRoy Clarke testified that he left its employ because Miss Nowland (one of defendant's employees) said "she could not use me at that time." Banks, testifying for the plaintiffs, on cross-examination, stated that when LeRoy Clarke quit working for the Great Western Coal Company and went back to work for the defendant: "Q. LeRoy Clarke was operating under a contract? A. The contract was broken. Q. Do you know whether or not LeRoy Clarke was operating under a contract at the time of this accident? A. He was not."

The evidence further shows that both Banks and LeRoy Clarke were working for the Great Western Coal Company, each with a truck of Earl Clarke's; that about a week after they went to work for that company defendant's manager came to see Earl Clarke and asked him if he "could send the trucks over," and asked "if the drivers of the trucks that had been driving the trucks would come back;" that Earl Clarke replied that he did not know for sure because his brother and Banks were working for another company and asked defendant's manager "if it was a steady job" and the manager answered, "yes;" that he then reported the conversation that he had had with defendant's manager to his brother and Banks and told them that they would have steady employment if they "went back and went to work for the defendant;" that thereupon Orville Banks and LeRoy Clarke went to work for the defendant, each with a truck, employing his own helper and each being paid for his work, separately, by the defendant.

Earl Clarke further testified that at the time of his conversation with defendant's manager he made no contract for the trucks. "Q. Did you have any understanding with them that you were to have anything to do with the trucks yourself? A. No, sir. Q. Did you have anything to say about where they were to go or how they were operated? A. No, sir. Q. Did you have any control of what went on the trucks or anything about the way they were managed or operated? A. No, sir." (We might say here that the testimony that we have just quoted tends to show that the relationship between Banks and the defendant was independent of any relationship between Earl Clarke and the defendant.) In other words, this testimony taken with the testimony that Banks rented the truck from Earl Clarke and received his pay from the defendant and was treated by the defendant in the same manner as the other haulers, tends to show that, in his work for the defendant, he was operating independently of any control by Earl Clarke and that his relationship to the said Earl Clarke was not that of either partner or employee.

Banks testified that he drove Earl Clarke's truck for the defendant for a time; that during this time LeRoy Clarke also drove one of Earl Clarke's trucks, LeRoy Clarke and Banks each having his own helper selected by each. However, about three weeks before the accident the truck that Banks was driving broke down and after that time Banks helped LeRoy Clarke on his truck. The evidence further shows that the defendant paid LeRoy Clarke for all of the hauling done by the truck he was using; that it did not pay Banks anything on any account after the latter went to work as helper for LeRoy Clarke.

The method of handling the deliveries of coal was as follows: An order by a customer to buy coal would come to defendant's office about 95% of the time by 'phone and someone in the office would write the order on a pad kept for that purpose. The order would then be filed on a hook. "The first driver in would ask what coal was to be delivered;...