Hoelker v. American Press

• Citation: 296 S.W. 1008,317 Mo. 64
• Decision Date: 23 May 1927
• Docket Number: 25432
• Parties: Kate Hoelker, Administratrix of Estate of Joseph Hoelker, v. American Press, Appellant
• Court: Missouri Supreme Court

296 S.W. 1008

317 Mo. 64

Kate Hoelker, Administratrix of Estate of Joseph Hoelker, v. American Press, Appellant

No. 25432

Supreme Court of Missouri

May 23, 1927

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

Affirmed.

Buder & Buder and G. A. Buder, Jr., for appellant.

(1) One who contracts to do certain work not in itself unlawful or necessarily dangerous to others, according to his own methods with his own equipment and appliances, and without being subject to the control of the employer except as to the results to be accomplished by said work, is an independent contractor, for whose wrongs and negligence the principal is not liable. The driver of the motor cycle in this case was an independent contractor, and the defendant was not answerable for his acts and deeds. Gall v. Detroit Journal Co., 191 Mich. 405; Fink v. Missouri Furnace Co., 82 Mo 283; Thomassen v. Water & Light Co., 251 S.W. 451; Fisher v. Levy Circulation Co., 182 Ill.App. 395; Kipp v. Oyster, 133 Mo.App. 716; Crenshaw v Ullman, 113 Mo. 639; McGrath v. St. Louis, 215 Mo. 191, 210; Sawtells v. Ekenberg Co., 206 Mich. 246. (2) A written contract is not necessary to establish the relation of independent contractor, but it may be shown by oral testimony; and where there is no disagreement or conflict in such oral testimony, the question is a matter of law for the court. Kipp v. Oyster, 133 Mo.App. 716; Thomassen v. Water & Light Co., 251 S.W. 451. (3) The mere fact that the party for whom the work is being done retains the right, by way of proper supervision, to obtain a compliance with the contract by the contractor, so that the desired ultimate results may be produced, does not affect the relationship between the parties, and the one doing the work is still an independent contractor, unless he is subject to the direction of the principal as to the manner, method and means of performing the work. McGrath v. St. Louis, 215 Mo. 211; Crenshaw v. Ullman, 113 Mo. 639; Gayle v. Car & Foundry Co., 177 Mo. 447; Lofty v. Const. Co., 215 Mo.App. 163. (4) Mere negative testimony of a witness, that he did not hear a sound or warning, amounts to nothing and is inadmissible as against positive testimony to the effect that the sound or warning in question occurred and was given. Testimony that a witness did not hear a horn or warning signal sounded has no probative force as against positive testimony that the horn or warning signal was sounded, and it is not substantial evidence upon which a verdict can be based. Armstrong v. Ry. Co., 195 Mo.App. 86; Quinley v. Traction Co., 165 S.W. 349; McNeil v. Mo. Pac. Ry. Co., 182 S.W. 763; Bennett v. Street Ry. Co., 122 Mo.App. 709; Sanders v. Electric Ry. Co., 147 Mo. 411, 424; McGrath v. Transit Co., 197 Mo. 97; Osborn v. Wabash Railroad Co., 166 S.W. 1124. (5) Where a witness makes conflicting and irreconcilable statements of fact, one tending to sustain and the other to disprove the allegations of the petition, there is no evidence to be submitted for the determination of a jury. Until a witness can determine for himself just what he saw or did not see, neither the court nor the jury are warranted in making the decision or determination for him, and the matter stands as if no proof had been offered. Oglesby v. Mo. Pac. Ry. Co., 177 Mo. 272; Brosius v. Lead & Zinc Co., 149 Mo.App. 186; Hook v. Mo. Pac. Ry. Co., 162 Mo. 569; Van Bibber v. Swift & Co., 286 Mo. 317, 337; State v. Johnson, 225 S.W. 963. (6) Where a party to a suit bases his case upon the testimony of an adverse witness, and such testimony fails to substantiate his claim, he is bound by the testimony of such witness and a demurrer to his case should be sustained. Wells v. Lusk, 188 Mo.App. 68; Frank v. Free, 190 Mo.App. 80. (7) If a pedestrian is aware, or gives indication of being aware, of the approach of a vehicle, the driver of such vehicle is under no obligation to warn him until it is evident that he is not going to get out of the way. Rubick v. Sandler, 219 S.W. 406; DeWolf v. Dry Goods Co., 240 S.W. 1094. (8) Section 19 of Motor Vehicles Act, Laws 1921, Ex. Sess. p. 91, upon which Instruction 1 is based, is invalid and unconstitutional, because it was passed in extra session without authority from the Governor to legislate on the matter which it contains. Constitution of Missouri, Art. IV, sec. 55; Art. V, sec. 9; Wells v. Railway, 110 Mo. 286; State ex rel. v. Edwards, 241 S.W. 945; Stocke v. Edwards, 244 S.W. 802. (9) The word "employer" includes one who engages the services of an independent contractor. By deduction, the word "employee" comprises independent contractors as well as servants. Morgan v. Bowman, 22 Mo. 548; Gayle v. Car & Foundry Co., 177 Mo. 427; Gall v. Detroit Journal Co., 191 Mich. 409.

Thomas R. Taylor and Marsalek, Stahlhuth & Godfrey for respondent.

(1) In passing upon the demurrer to the evidence it is the duty of the court to accept as true all evidence in favor of plaintiff and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom, and the court cannot draw inferences in favor of defendant to counterbalance or overthrow inferences in plaintiff's favor. Knapp v. Hanley, 108 Mo.App. 360; Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gas Light Co., 73 Mo. 219. The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom considered in the light of the foregoing rule, show conclusively that plaintiff has no case. Scherer v. Bryant, 273 Mo. 602; Gratiot v. Railroad, 116 Mo. 466; Steffens v. Fisher, 161 Mo.App. 393. (2) The court could not properly take the case from the jury on the theory that Nowak was an independent contractor. He was not engaged in the business of hauling as an independent occupation; he was not employed by defendant to do a specific job of work, but did the same work day after day for an undetermined period. He was controlled by defendant in both the manner and the means of performing his work, and their arrangement readily supports the inference that the right of control was with the defendant. He was required to do his work in a manner satisfactory to defendant upon penalty of being discharged from his position. Under the evidence, he was an ordinary employee. O'Hara v. Gas Co., 244 Mo. 409; Gayle v. Car & Foundry Co., 177 Mo. 427; Scherer v. Bryant, 273 Mo. 596; Speed v. Railroad, 71 Mo. 303; Samper v. American Press, 273 S.W. 186; Tomlinson v. Marshall, 208 Mo.App. 381; Porter v. Withers' Estate, 201 Mo.App. 27; Alexander v. Publishing Co., 197 Mo.App. 601; Mullich v. Brocker, 119 Mo.App. 332; O'Neill v. Blase, 94 Mo.App. 648; Sandifer v. Lynn, 52 Mo.App. 553; Burgess v. Garvin, 272 S.W. 108; Koelling v. Union F. & I. Co., 267 S.W. 34; Borah v. Motor Co., 257 S.W. 145; Simmons v. Murray, 234 S.W. 1009; Fitzgerald v. Caldwell, 226 S.W. 971; Master & Servant, 39 C. J. 1321-3. The burden of proving that Nowak was an independent contractor was upon the defendant. Knoche v. Pratt, 194 Mo.App. 304; Semper v. American Press, 273 S.W. 186; Schneider v. Maney, 242 Mo. 43. (3) There was ample evidence to warrant submission to the jury of the speed of the motor cycle at and just prior to the time it struck plaintiff. Plaintiff testified it was going about ten miles an hour; that he saw it when it came around the corner of the automobile, fifteen or twenty feet away, and Nowak testified that at the time of the accident he was going between seven and ten miles an hour. That plaintiff made contradictory statements, regarding his view of the motor cycle, on cross-examination, does not destroy his testimony on this issue, in view of the fact that he corrected the mistake. Rigley v. Pryor, 290 Mo. 10, 20; Benjamin v. Railroad, 245 Mo. 615; Huff v. Railroad, 213 Mo. 515; Rowe v. U. Rys. Co., 211 Mo.App. 541; Hamra v. Orten, 208 Mo.App. 43; Downs v. Racine Co., 175 Mo.App. 386; Harriman v. Dunham (Mo. App.), 196 S.W. 446. (4) Plaintiff's testimony as to his actions just previous to the accident shows that he was attentive to his surroundings; that he could hear an ordinary automobile horn at the distance of about a block; that he heard no horn or other automobile signal before he was struck. This was sufficient evidence to take to the jury the issue of Nowak's negligence in failing to warn plaintiff. Dutcher v. Railroad, 241 Mo. 137, 165; Murray v. Railroad, 101 Mo. 236; Miller v. Harvey, 199 Mo.App. 634; Reed v. Railroad, 94 Mo.App. 371. Plaintiff was not conclusively bound by Nowak's statement that he sounded his motor cycle horn twenty-five feet south of the safety post. Maginnis v. Railroad, 268 Mo. 675. The rule that where the pedestrian is aware of the approaching vehicle, failure to warn will not be considered causal negligence, cannot be applied to this case, where plaintiff became aware of the motor cycle's approach when it was only fifteen or twenty feet away, and it was going at the rate of ten miles an hour, or fifteen feet per second, so that after discovering it, plaintiff had no opportunity to save himself. The pedestrian is entitled to a reasonable, timely and adequate warning, not merely to knowledge at a time when the vehicle is already upon him. Yoakum v. Railway, 199 S.W. 265; McKinney v. Bissel, 263 S.W. 535; Steigleder v. Lonsdale, 253 S.W. 487; American Ins. Co. v. Rys. Co., 200 Mo.App. 330; Woodis v. Rys. Co., 199 Mo.App. 352; McKenzie v. Rys. Co., 216 Mo. 22. (5) The court, at defendant's request, by Instructions 4 and 5, submitted to the jury as issues of fact, the question whether Nowak was a servant or independent contractor, and the question regarding the speed of the motor cycle. Defendant is now estopped to claim that the evidence as to either of these issues was insufficient to raise a question for the jury. ...