Goetz v. Hydraulic Press Brick Co.

• Decision Date: 03 July 1928
• Docket Number: No. 27122.,27122.
• Citation: 9 S.W.2d 606
• Parties: EDWARD GOETZ v. HYDRAULIC PRESS BRICK COMPANY, Appellant.
• Court: Missouri Supreme Court

9 S.W.2d 606

EDWARD GOETZ v. HYDRAULIC PRESS BRICK COMPANY, Appellant.

No. 27122.

Supreme Court of Missouri. Division One.

July 3, 1928.

Appeal from Circuit Court of City of St. Louis. — Hon. William H. Killoren, Judge.

REVERSED.

Eliot, Blayney & Bedal for appellant.

(1) One who contracts with a competent and fit person exercising an independent employment to do a piece of work, not in itself unlawful or attended with danger to others, according to the contractor's own methods and without his being subject to control, except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractor or his servants committed in the prosecution of such work. An independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the results of his work, and not as to the means by which it is accomplished. The contractor must answer for his own wrongs committed in the course of the work by his servants. Fred Janssen was an independent contractor in the operation of the clay mine in this case, and the defendant was not answerable for his acts or those of his servants. Harger v. Harger, 144 Ark. 375; Fink v. Furnace Co., 82 Mo. 276; Gayle v. Missouri Car Co., 177 Mo. 427; Kiser v. Suppe, 133 Mo. App. 19; Borah v. Motor Car Co., 257 S.W. 145; Kipp v. Oyster, 133 Mo. App. 716; Thomassen v. Water & Light Co., 251 S.W. 450. (2) Where the facts are undisputed, the court should declare as a matter of law whether one is an independent contractor or merely a servant. The facts in the instant case being wholly undisputed, the court should have declared as a matter of law that Janssen was an independent contractor and the defendant, therefore, not liable. Long v. Moon, 107 Mo. 334; Gayle v. Car Co., 177 Mo. 447. (3) One who enters upon premises by permission only, without invitation, enticement or allurement held out to him by the occupier or owner or some representative thereof, enters there at the very best by mere permission, becoming a licensee only and enjoys the license at his own risk. In such case no duty is imposed by law upon the owner to keep the premises in a suitable condition for those who go there solely for their own convenience or pleasure or to satisfy their curiosity: his only obligation is not to wantonly or willfully injure them. The plaintiff was upon the premises solely for his own benefit and at most was a mere licensee towards whom the defendant owed no duty except not to wantonly or willfully injure him. Behre v. Hemp & Co., 191 S.W. 1038; Menteer v. Fruit Co., 240 Mo. 177; Bender v. Weber, 250 Mo. 551; Roe v. Packing Co., 203 Mo. App. 11; Wencker v. Railway Co., 169 Mo. 592; Oatman v. Railway Co., 304 Mo. 38; Forsythe v. Grocery Co., 283 Mo. 49; Wimberly v. Gulf Production Co., 274 S.W. 986; Kelly v. Benas, 217 Mo. 1; Sage's Admr. v. Creech Coal Co., 194 Ky. 415; Bennett v. Railway Co., 102 U.S. 577.

Thomas L. Anderson, James F. Green and Ernest A. Green for respondent.

(1) In determining on demurrer to the evidence at the close of entire case whether plaintiff made a case for the jury, plaintiff's evidence will be taken as true, and defendant's, where contradicted, as untrue, and the plaintiff must be given the benefit of all of his own testimony and any favorable testimony of defendant, and every reasonable and favorable inference of fact must be deduced in favor of the plaintiff from his own testimony or the uncontradicted testimony of the defendant. Gehbauer v. Bakery Co., 285 S.W. 170; Wrights v. Wells, 284 S.W. 848; Scott v. Kline's, 284 S.W. 831; Elstroth v. Karrenbrock, 285 S.W. 525; Wair v. Car & Foundry Co., 285 S.W. 155; Courtois v. Car & Foundry Co., 282 S.W. 484; Woekner v. Casket Co., 196 S.W. 384; Hanser v. Bieber, 197 S.W. 70; Doody v. Woolen Mills Co., 274 S.W. 695; Fink v. Railroad, 161 Mo. App. 328; Hollwig v. Bell Co., 195 Mo. 165; Phelan v. Paving Co., 227 Mo. 704; Lee v. Knapp & Co., 137 Mo. 391; Young v. Webb City, 150 Mo. 341; Behneker v. Clay Mine Co., 189 Mo. App. 653; Greenstein v. Foundry Co., 178 S.W. 1182; Conley v. Car Co., 221 S.W. 168. (2) Even though the defendant's witnesses Trowbridge, Janssen and Miles testified, without direct contradiction on the plaintiff's part, that Janssen was operating the mine on August 17, 1920, under the alleged contract purporting to be dated July 7, 1919, nevertheless the plaintiff did not admit such to be the fact and did not admit the existence of the alleged contract. It was, therefore, a question of fact for the jury whether such alleged contract was in existence on August 17, 1920, and whether or not Janssen was operating the mine at such time thereunder. Gannon v. Gas Co., 145 Mo. 519; Hunter v. Pryor, 292 S.W. 1062; Barz v. Yeast Co., 271 S.W. 361; McCray Lumber Co. v. Standard Cons. Co., 285 S.W. 107; Ford v. Roofing Products Co., 285 S.W. 541; Allen v. Fidelity Ins. Co., 285 S.W. 765. (3) To be an independent contractor the person who attempts to contract as such must be competent and fit. In the contract the employer must expressly relinquish the right to control the results of the work. Where the facts are in dispute, even with the alleged contract included, the proper course must be to leave it to the jury, under proper instructions, to say whether one was an independent contractor. The dynamite was kept in a blacksmith shop within one hundred yards of a public highway. Diehl v. Fire Brick Co., 253 S.W. 988; Timmerman v. Iron Co., 1 S.W. (2d) 792; Gayle v. Car Co., 177 Mo. 447; Salmon v. Kansas City, 241 Mo. 42; Hoelker v. American Press, 296 S.W. 1009; Harvey v. O'Connor, 284 S.W. 171; Semper v. American Press, 273 S.W. 189; Porter v. Withers' Estate, 201 Mo. App. 27; Carson v. Blodgett Const. Co., 174 S.W. 448; Loth v. Theater Co., 197 Mo. 354; French v. Mfg. Co., 173 Mo. App. 220; 25 C.J. 185, note 48. (4) Under all the testimony there was substantial evidence to submit to the jury the issue as to whether or not plaintiff at the time of the explosion was upon the premises "at the request and upon the invitation of the defendant." McLanghlin v. Marlett, 246 S.W. 553; Purdy v. Realty & Amusement Corp., 294 S.W. 753; Bloomer v. Snellenburg, 221 Pa. 25; Glaser v. Rothchild, 221 Mo. 180; Main v. Lehman, 294 Mo. 588; Ridenour v. Harvester Co., 205 S.W. 883; Bonello v. Powell, 223 S.W. 1076. (5) An act or omission, though properly characterized as negligent, may manifest such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted. Or there may be conscious negligence tantamount to intentional wrongdoing, as where the person doing the act, or failing to act, must be conscious of his conduct, and though having no specific intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury. Troxell v. Beshon, 279 S.W. 440; Reel v. Consolidated Inv. Co., 236 S.W. 46; McNamara v. Transit Co., 182 Mo. 676; Railroad v. Arms, 91 U.S. 489.

RAGLAND, J.

This is an action for personal injuries alleged to have been caused by the negligence of the defendant.

Plaintiff was an experienced clay miner; he had operated mines for many years, both for himself and for others. In the early part of August, 1920, he was prospecting for fire clay in the vicinity of Rosebud, a station on the Rock Island Railroad, in Gasconade County. He had a nephew living at Rosebud, Fred Janssen. Janssen was at the time engaged in directing the operation of a fire clay mine near Johnson Spur, a railroad spur extending out from the main line of the Rock Island at Rosebud. While so prospecting plaintiff was told of a rich clay deposit not far from Rosebud. He was not acquainted with the owner of the supposed deposit, but Janssen was. Plaintiff thereupon sought out his nephew for the double purpose of securing through him an introduction to the owner and of forming with Janssen a partnership for mining the clay, if it could be obtained from the owner. He went to Janssen's house on the evening of August 16, 1920, and spent the night there. While he was there it was arranged between him and Janssen that the latter would secure an automobile the next morning and drive plaintiff to see the owner of the clay deposit and the deposit itself. The next morning Janssen told plaintiff that he would first have to go over to the mine where he was directing operations and give some orders to the men employed there and that he would then get a car from one of them for their trip. Plaintiff walked over with him, and while Janssen went on to one of the clay pits to give directions to the men at work there, plaintiff remained near a blacksmith shop on the premises, standing just outside an open door. The shop was a small wooden building seven or eight feet by twelve; the work done in it was principally that of sharpening the points of the picks and drills used in the clay mining. But the building was also used as a storage place for dynamite, percussion caps and fuses, used in the mining operations. After plaintiff had been standing at the place just indicated for an interval of about twenty minutes there was a terrific explosion of the dynamite within the shop. He was seriously and permanently injured.

The mine was owned by defendant, but was being operated by Janssen, whether as an employee of defendant, or as an independent contractor, does not at present concern us. One Trowbridge was defendant's general superintendent. Several months prior to the occurrence giving rise to this controversy he had given plaintiff a general invitation "to drop in on them" and see the mine whenever he was in that part of the country. But as already appears plaintiff's presence on defendant's premises on the morning of August 17, was purely incidental to an adventure which he and Janssen were about to undertake and one...