Karnowski v. Skelly Oil Co., 3764.

• Decision Date: 10 May 1949
• Docket Number: No. 3764.,3764.
• Citation: 174 F.2d 770
• Parties: KARNOWSKI v. SKELLY OIL CO.
• Court: U.S. Court of Appeals — Tenth Circuit

174 F.2d 770 (1949)

KARNOWSKI v. SKELLY OIL CO.

No. 3764.

United States Court of Appeals Tenth Circuit.

May 10, 1949.

Charles Rooney, Topeka, Kan. (John D. Cunningham, Seneca, Kan., was with him on the brief), for appellant.

Hawley C. Kerr, Tulsa, Okl. (Howard A. Jones, Topeka, Kan., was with him on the brief), for appellee.

Before BRATTON, HUXMAN and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

Joseph Karnowski brought this suit against the Skelly Oil Company for personal injuries, allegedly caused by the negligence of its employee John Sausser in throwing a large piece of cement from the top of Skelly's building, while making repairs thereon. Skelly denied an employer-employee relationship with Sausser, and alleged that the building repairs were under his sole supervision and control as an independent contractor. Upon the trial of the case the court took a motion for directed verdict under advisement and submitted the case to the jury. In answer to interrogatories, the jury found an employer-employee relationship; negligence on the part of Sausser; assessed damages therefor, and the trial court entered judgment in favor of the plaintiff.

Skelly filed a motion for judgment in accordance with its former motions for a directed verdict, and upon a hearing the court set aside the jury verdict for the stated reason that the evidence afforded no factual basis for an inference of an employer-employee relationship between Sausser and Skelly. A motion for new trial was overruled, and plaintiff has appealed, contending that the evidence was legally sufficient to establish a master-servant relationship. And, in the alternative, contends that if such relationship was not sufficiently proven, it was by reason of the trial court's exclusion of competent evidence tending to show the true relationship of the parties.

There was no written contract between Skelly and Sausser and the work was performed under an oral agreement. The terms of the agreement and the manner in which the work was performed, were developed on the trial of the case by the testimony of Sausser and appellee's Field Representative, L. F. Stretcher, who was in charge of company properties. There is no material dispute in their testimony, disclosing the following facts: Sometime in February, 1946, Stretcher contacted Sausser concerning repairs on a building owned by appellee. Sausser agreed to do the work but stated that he could not take it on a contract, because there was no way to arrive at a correct "lump sum that would cover that kind of job." The parties then orally agreed that Sausser would receive $1.50 per hour and 85¢ per hour for his laborers. At that time Sausser was paying 75¢ per hour for labor and he expected to make a profit on their work, but was prevented from doing so because at the time the repairs were started laborers' wages had been raised to 85¢ per hour. Sausser was to procure the needed materials and charge the same to Skelly, with the exception of the required brick and steel, which was shipped to Seneca by Skelly. Sausser was told to use his own judgment in the work to be done; he hired the workmen, set their wages and supervised their work; he used his own tools, and no one from Skelly attempted any control or supervision over the work. During the time the work was in progress Sausser advanced sums of money to his laborers, but did not present a bill to Skelly for wages or materials, nor was he paid for either until the job had been completed.

Recognizing the right of control as the principal factor in determining an employer-employee relation, the Kansas courts have said that when a person lets out work to another, and reserves no control over the work or workmen, a contractee relationship exists. Smith v. Brown, 152 Kan. 758, 107 P.2d 718,...