Hoelker v. American Press

• Decision Date: 23 May 1927
• Docket Number: No. 25432.,25432.
• Citation: 296 S.W. 1008
• Parties: HOELKER v. AMERICAN PRESS.
• Court: Missouri Supreme Court

296 S.W. 1008

HOELKER v. AMERICAN PRESS.

No. 25432.

Supreme Court of Missouri, in Banc.

May 23, 1927.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

Action by Joseph Hoelker against the American Press. Judgment for plaintiff, and defendant appeals. After the submission of the case on appeal, plaintiff died, and the cause was revived in the name of Kate Hoelker, administratrix of his estate. Affirmed.

Buder & Buder and G. A. Buder, Jr., all of St. Louis, for appellant.

Thomas R. Taylor and Marsalek, Stahlhuth & Godfrey, all of St. Louis, for respondent.

LINDSAY, C.

This is a suit for personal injuries sustained by Joseph Hoelker, wherein he had a verdict and judgment against defendant, publisher of the Times newspaper. After the submission of the case on appeal, Joseph Hoelker died, and the cause has been revived in the name of his administratrix.

Joseph Hoelker was struck by a motorcycle owned and operated by one Andrew Nowak. It was alleged that the motorcycle was negligently operated by the defendant, its agents and servants. The injury occurred while Hoelker was walking westward from the sidewalk at the southeast corner of Broadway and St. Charles streets in the city of St. Louis, for the purpose of boarding a street car north bound on Broadway, and which, at the time, had stopped to take on passengers. This street car was on the east one of the two tracks on Broadway. St. Charles street runs east and west. Nowak was proceeding northward on the east portion of Broadway. He was employed by the defendant to deliver newspapers to defendant's newsboys at various points in the city, and the motorcycle had an attachment or side car for carrying newspapers.

The petition charged negligence in the operation of the motorcycle in several particulars, but the plaintiff submitted his case to the jury by his instruction 1, upon two of the specified grounds of negligence—rapid and dangerous speed of the motorcycle, and failure to give warning of its approach. The answer was a general denial, with the plea that the plaintiff's injuries were due to his own negligence in failing to look, failing to heed the warning given by the operator of the motorcycle, and suddenly walking into the path of the motorcycle. There followed a plea setting up the terms of the contract alleged to exist between Nowak and defendant as constituting him an independent contractor, and not a servant of defendant.

The assignment of error coming first in order and importance arises upon the claim made upon the trial, and here, that under the evidence the plaintiff was not entitled to go to the jury. This claim is urged chiefly upon two grounds: First, that under the evidence, and as a matter of law, Nowak was an independent contractor, for the result of whose acts the defendant is not responsible, and, next, that there is no substantial evidence to show that the motorcycle was moving at a rapid and dangerous rate of speed, or that there was a failure to warn of its approach. Added to these is the contention that the plaintiff was careless in the respects above mentioned.

There was no written agreement between the defendant and Nowak. The testimony as to the relation between them was given by Nowak, called by the plaintiff, and by Mr. Bangert, superintendent of deliveries for defendant. The testimony is all to the effect that the motorcycle was owned by Nowak, and that he paid all expenses of its upkeep and operation.

Nowak, who at the time of the trial was still delivering papers for defendant, testified that he was 26 years old; that previous to his said employment he had worked in a blacksmith shop for 3 years; before that had worked in a tent and awning place, and had been in the merchant marine for 6 years. His work for defendant began in September, 1922. The injuries to plaintiff occurred on November 21, 1922.

Nowak testified in substance that he wanted an outside job, and, upon the suggestion of a friend, he went to the Times building, and got this job, after talking with a man called "Jeff"; that there were, at the time, three other men who went with him; and that they all talked to Jeff, and started to work at the same time. Stating the conversation, he said:

"Jeff asked us if we had motorcycles. We told him `Yes.' He asked us if we wanted to deliver some papers for him, and we told him `Yes.' We asked him how much money we would get, and he told us he would pay us $6 a day if we delivered some papers for him down town— only down town. We had an argument about not getting enough pay, paying our own repairs for our motorcycles. We tried to get $40 a week. He told us to try $6 a day for a couple of days, and see if we can get along with that. If not, he said, he would take it up within a couple of days more."

For the purpose of making such deliveries, he and the others were told to be there, that is, at the Times building, at 11 o'clock, and at that time he and the others received cards and took certain directions. The cards were marked for certain streets and street corners, and with the names of the newsboys to whom the papers were to be delivered, and the number to be given to each boy. There were five deliveries to be made each day, the first at 11 o'clock, the next at 1:15 in the afternoon, another at 2:45 in the afternoon, and two later editions. Nowak, as well as the others, was required to be at the Times building at fixed times, for the purpose of promptly taking out the papers of each one of the various editions.

Nowak was not instructed to travel certain streets in order to reach the various particular corners where papers were to be delivered, but he was required to be on hand promptly to receive papers for each delivery, and was given a card stating the number to be delivered respectively to the boys at each of the designated corners.

Mr. Bangert, called by defendant, said:

"II told Mr. Nowak when he came to work—I told him I would give him a card and he would make these runs fives times a day; for that

would pay him 86 a day. Then I asked him if he had a motorcycle, what kind, shape it was in, and he said: 'First class.' I told him would put him to work the following Monday."

The witness said he gave Nowak no directions as to how he should go or the manner in which he should drive the motorcycle. He further testified that he made the arrangement with Nowak for no certain length of time. Inquired of as to that, he said:

"I hired Mr. Nowak, and, as soon as the work didn't prove satisfactory to me—well, it was up to him."

"Q. Any time his work was not satisfactory, you would drop him? A. I would drop him. "Q. Discharge him? A. E would discharge him."

Nowak testified that, after he began delivering newspapers for defendant, he did not do any delivery work for any one else with the motorcycle. It does not appear from the testimony that previous to going to work for defendant he had done any delivery work, or had been engaged in any other work than the kinds that have been already stated.

The question of whether Nowak, in the service rendered by him to defendant, was under the control of defendant, was submitted to the jury under plaintiff's instruction 1, authorizing a recovery, and the question in converse form was also submitted by instruction 4 for defendant.

Counsel for plaintiff urge that, because the question was submitted at defendant's request by said instruction 4, the defendant is estopped to claim that the evidence was insufficient to raise a question for the jury, and cite Kinlen v. R. R. Co., 216 Mo. 145, 166, 115 S. W. 523; Jennings v. R. R. Co., 99 Mo. 394, 399, 11 S. W. 999; 1Vhiteaker v. R. R. Co., 252 Mo. 459, 160 S. W. 1009; Berkson v. R. R. Co., 144 Mo. 219, 45 S. W. 1119, and other cases. What was said in those cases does not sustain the plaintiff's claim under the facts of this case. If Nowak was an independent contractor, plaintiff could not recover against the defendant, although Nowak might have been negligent in the operation of the motorcycle in all the respects charged. In overruling the demurrer, the court necessarily held there was evidence to go to the jury on the vital question of whether Nowak was the servant of defendant. The defendant made that an issue all through the case; and, by the adverse ruling of the court on the demurrer, the defendant was compelled to go to the jury upon that issue. It was an issue, single in character, but there were several specific acts of negligence charged. One r more might be submitted; others not.

When the court submitted that issue under plaintiff's instruction authorizing a recovery by plaintiff, it was over the objection of defendant, and the giving of defendant's instruction presenting that issue conversely, and so as to authorize a verdict for defendant, did not estop the defendant from pursuing here his exception to the court's ruling upon the demurrer as to that issue. Kenefick-Hammond Co. v. Fire Insurance Society, 205 Mo. 307, 103 S. W. 957; Koerper v. Glennon, 209 Mo. App. 489, 240 S. W. 260; McCaughen v. Mo. Pac. By. Co. (Mo. App.) 274 S. W. 9,1, For the reason indicated, we hold that rule announced in Torrance v. Pryor (Mo. Sup.) 210 S. W. 430, and State ex rel. Mississippi R. & Bonne Terre By. v. Allen, 308 Mo. 487, 272 S. W. 925, does not apply, nor foreclose defendant's right to challenge the sufficiency of the evidence upon that point.

In Fink v. Missouri Furnace Co., 82 Mo. 283, 52 Am. Rep. 376, and Crenshaw v. Ullman, 113 Mo. 639, 20 S. W. 1077, and in other cases, there has been quoted with approval the statement as to what constitutes an independent contractor, made in 2 Thompson on Negligence, p. 899, § 22. "The general rule is that one who has contracted 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...