Gayle v. Missouri Car and Foundry Co.

• Decision Date: 17 November 1903
• Citation: 76 S.W. 987,177 Mo. 427
• Parties: GAYLE v. MISSOURI CAR AND FOUNDRY COMPANY, Appellant
• Court: Missouri Supreme Court

76 S.W. 987

177 Mo. 427

GAYLE v. MISSOURI CAR AND FOUNDRY COMPANY, Appellant

Supreme Court of Missouri, Second Division

November 17, 1903

Appeal from St. Louis County Circuit Court. -- Hon. John W. Booth Judge.

Affirmed.

Seddon & Blair and Robt. A. Holland, Jr., for appellant.

(1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff's evidence in chief, and at the close of all the evidence, for the following reasons: (a) Because the plaintiff in this case brought his suit on the theory that he was working for the defendant as an independent contractor, and not as the servant of defendant. The evidence, however, shows that he was not an independent contractor, but a servant of defendant. It is well-settled law in this State that the plaintiff can only recover upon the allegations of his petition, and this suit having been brought on the theory that the plaintiff was an independent contractor, he cannot be allowed to recover on the theory that he was only a servant. Chitty v. Railroad, 148 Mo. 64; Yarnell v. Railroad, 113 Mo. 376; Melvin v. Railroad, 89 Mo. 106; McManamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 514; McCarty v. Hotel Co., 144 Mo. 397. (b) Because there were only three allegations of negligence in plaintiff's petition, and there was no evidence whatever to support any of said allegations. There was nothing, therefore, to submit to the jury. The court should, therefore, have granted said peremptory instruction. Cases cited, supra. (2) The court erred in giving instruction No. 1 offered by plaintiff. Said instruction incorrectly states the law as to the circumstances when a person is an independent contractor and when he is a servant. Said instruction is also erroneous because the evidence of the plaintiff himself shows that he was a servant of the defendant. The plaintiff is conclusively bound by his own testimony, and therefore it was erroneous to instruct the jury that the plaintiff, under the circumstances, would be an independent contractor, because plaintiff was conclusively bound by his own testimony to the effect that he was an ordinary employee of the defendant. State v. Brooks, 99 Mo. 137; Feary v Railroad, 162 Mo. 106; Erwin v. Railroad, 68 S.W. 91; Holmes v. Leading, 69 S.W. 32. (3) The court erred in giving instruction No. 2 asked by plaintiff. Said instruction is erroneous, because it is in part predicated upon facts in regard to which there is absolutely no evidence. It refers to a question as to whether the ropes on the transfer table had become entangled on the drums and spools, and as to whether the men on the transfer table were at work disentangling said ropes while the transfer table was in motion. There was absolutely no evidence in the case that the said two men were so at work. On the contrary, the testimony offered by the plaintiff himself shows that while one of the men was so engaged the other was not. The court therefore, erred in giving said instruction, as it is well settled in this State that it is error for the court to give an instruction in regard to matters in reference to which there is no evidence. Stone v. Hunt, 114 Mo. 66; State v. Hope, 102 Mo. 410; Evans v. Interstate Company, 106 Mo. 594; State v. Brown, 145 Mo. 680; Wilkerson v. Eilers, 114 Mo. 245; Yarnell v. Railroad, 113 Mo. 570; Waldheir v. Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572. (4) The court erred in refusing to give instruction D asked by defendant. Said instruction reads as follows: "D. The court instructs the jury that on the occasion in question the plaintiff was working as a servant of plaintiff and was not an independent contractor." The said instruction should have been given by the court because the evidence introduced by plaintiff, as well as that introduced by defendant, shows that the plaintiff was a servant of defendant and not an independent contractor. (5) The court erred in refusing to give instruction No. 1 asked by defendant. Said instruction should have been given because it correctly states the law. Under the circumstances and conditions mentioned in said instruction, the plaintiff would not be an independent contractor, but an ordinary servant, and if an ordinary servant he would not be entitled to recover, because the suit was brought on the theory that the plaintiff was an independent contractor. Chitty v. Railroad, 148 Mo. 64; Yarnell v. Railroad, 113 Mo. 376; Melvin v. Railroad, 89 Mo. 106; McManamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 514; McCarty v. Hotel Company, 144 Mo. 397. (6) The court erred in refusing instruction 2, asked by defendant. Said instruction, in the form in which it was asked by defendant, correctly expressed the law, and should have been given. It said, in substance, that if the injury sustained by plaintiff was wholly due to negligence on the part of either Horst or Whitneber, the men in charge of the transfer table, the plaintiff was not entitled to recover; for plaintiff, in his petition, did not seek to recover on the ground of any negligence on the part of either said Horst or Whitneber, but on several other charges of negligence. If, therefore, the injuries were due wholly to negligence on the part of said men, a negligence not pleaded by the plaintiff, then and in that case the plaintiff would not be entitled to recover. Chitty v. Railroad, 148 Mo. 64; McManamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 514; McCarty v. Hotel Company, 144 Mo. 397. The court erred in modifying said instruction and giving it as modified. Said instruction was also erroneous because it was not right, under the circumstances, for the court to submit to the jury the question as to whether the plaintiff was a fellow-servant of Horst and Whitneber, because the evidence of the plaintiff himself showed that he was such a fellow-servant, and plaintiff was bound by his own testimony. State v. Brooks, 99 Mo. 137; Feary v. Railroad, 162 Mo. 106; Erwin v. Railroad, 68 S.W. 91; Holmes v. Leading, 69 S.W. 323.

Daniel Dillon and Geo. E. Egger for respondent.

The refusal of the peremptory instruction to find for defendant is said to be error for two reasons; first, because plaintiff brought his suit on the theory that he was an independent contractor, and the evidence showed he was a servant of defendant; and, second, because there was no evidence to support any of the allegations of negligence contained in the petition. The petition makes no mention of independent contractor. It alleges that plaintiff, in conjunction with certain other persons, contracted and agreed with defendant to frame, in the sheds of defendant, cars of a certain kind which defendant was then building, and that defendant agreed and promised to pay plaintiff and his associates $ 3 a car for every car framed by them. We claim, however, that the evidence shows that plaintiff was what is technically called an "independent contractor." There is no dispute that plaintiff agreed with defendant to frame the cars for $ 3 a car. The testimony of defendant admits this much. The testimony for plaintiff further shows that it required a gang of four men to frame these cars, and that plaintiff employed the three men who worked with him and made up the gang. Some of these men had been working for defendant, at other work before plaintiff engaged them, and some of them had never worked for defendant, but went to work in the shops of defendant for the first time on being hired by plaintiff to work as one of his gang. Plaintiff agreed with these men that if they would do as much work as he, they would divide equally the $ 3 which was received for framing each car. Plaintiff had direction and control of the work done by this gang and had control of the gang. They worked when they pleased and quit when they pleased, and sat down when they pleased. The men in this gang paid no attention to any one but Gayle; he hired them and they knew no foreman over him. There were inspectors at the works to see that proper timber was used, and to see when the cars were turned out, and that they were properly done. But defendant exercised no control as to how the work should be done, or the manner in which the men went about it. The supervision exercised by defendant was only as to the result of the work of plaintiff, to see that the car when built was according to requirements. This did not take away from plaintiff the position of an independent contractor. Barry v. St. Louis, 17 Mo. 121; Fink v. Mo. Fur. Co., 82 Mo. 283; Wiese v. Remme, 140 Mo. 298; Long v. Moon, 107 Mo. 339. Besides, defendant itself, by its course at the trial, conceded that it was a question for the jury under the evidence whether plaintiff was an independent contractor or not. By its instruction 1 defendant asked the court to submit this issue to the jury. This instruction, with a change not at all affecting this point, was given to the jury. "When appellant itself has asked the judgment of the jury upon a given issue, it will not afterward be heard to challenge the verdict on the ground that the issue was improperly submitted to the jury." Berkson v. Railroad, 144 Mo. 220; Frankenthal & Bro. v. Ins. Co., 76 Mo.App. 19. In suing a defendant for damages caused by the negligence of his servant, it is not only permissible but proper pleading to allege in the petition that defendant did the acts alleged to be negligent, and it is not necessary to allege that he did these acts by and through his servants. And an allegation specifying the act and averring that it was done negligently and carelessly is sufficient, especially after verdict, and when defendant has gone to trial without objecting to the generality of the charge. Mack v. Railroad, 77 Mo. 232; ...