Kersey v. Conrad

• Decision Date: 16 June 1930
• Docket Number: No. 16947.,16947.
• Citation: 30 S.W.2d 167
• Parties: KERSEY v. CONRAD.
• Court: Missouri Court of Appeals

30 S.W.2d 167

KERSEY v. CONRAD.

No. 16947.

Kansas City Court of Appeals, Missouri.

June 16, 1930.

Rehearing Denied June 30, 1930.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially reported."

Action by Pearl Kersey against Herman Conrad. From a judgment for plaintiff, defendant appeals.

Reversed.

Hackney & Welch, of Kansas City, for appellant.

Kaelin, Smith & Thomas, of Kansas City, for respondent.

BARNETT, C.

This is a suit for wrongful death. Plaintiff brought suit for damages for the death of her husband. The defendant was engaged in building a dwelling house, and the plaintiff's husband, a plasterer, had the contract for putting a coat of stucco on the outside walls of the structure. Before the institution of this suit, the plaintiff sought an award under the provisions of the Workmen's Compensation Act on the theory that her husband was an employee. The commission found that plaintiff's husband was a contractor who had entered into an agreement or contract with defendant to do certain work at a stipulated price per yard; that deceased employed his own men, and had the power to do so under the agreement; that defendant exercised no power whatsoever over deceased or his employees; that defendant was the owner of the premises, and deceased was an independent subcontractor, and was not an employee within the meaning of the Workmen's Compensation Act. The commission denied compensation, and judgment was rendered upon the decision of the commission by the circuit court of Jackson county. After the plaintiff had failed to obtain compensation under the Workmen's Compensation Act (Laws 1927, p. 490), this suit was instituted.

All of the evidence, except the record evidence showing the proceedings before the Workmen's Compensation Commission and the subsequent judgment of the circuit court, was introduced by plaintiff. The evidence most favorable to the plaintiff was to the effect that defendant was engaged in constructing a building, and had let the various kinds of work to independent contractors. The carpentry was let to M. A. Crummett, the lather's work was let to W. S. and D. F. Pickerill, and the plastering, including the stucco work, was let to R. H. Kersey, Sr., the plaintiff's husband. Rudolph J. Kersey, son of the deceased, testified that he was a plasterer employed by his father; that under the contract between his father and the defendant it was agreed that defendant would furnish the outside scaffolding; that it was not customary for plasterers to build their own scaffolds; and that hammers and nails were not a part of a plasterer's equipment. However, the testimony showed that the plasterers furnished their own scaffold boards because the use of such boards by the plasterers made them unfit for any other use. Plaintiff put the defendant upon the stand. He testified that he paid Mr. Crummett a lump sum for all the carpenter work; that nothing was said about the erection of the scaffold, but that it was customary for the carpenter to build the scaffolds which would be used by the lathers and then by the plasterers. Defendant testified that he had nothing to do with the details of the construction of the scaffold, and knew nothing about the particular board which gave way and which will be mentioned hereafter. The deceased and his employees, consisting of two plasterers and two laborers, started to work on the outside of the house one day about noon. The next morning about fifteen minutes after deceased started to work the board upon which he was standing gave way and he fell, and his back was broken, thus causing his death. The evidence shows that the scaffold was built by the carpenters, under the direction of Mr. Crummett. There was a projection upon one side of the house which left the main wall of the building at right angles, so that the outside scaffolding, following the lines of the house, had to extend into this right-angle corner. The scaffold was built of upright two by fours held in place by boards which the workmen called "lookouts," which were nailed at right angles to the uprights and which extended to the building and were nailed to the sides of the windows. The uprights were erected wherever there was a window in the house so that the "lookouts" could be fastened to the house by extending into the windows. The stability of the scaffold was further insured by cross-braces running from one upright to another. The evidence indicates that the scaffold was so erected that it did not fit in as closely to the side of the building in the rightangle corner above mentioned as would make it convenient for the plasterers to place the stucco in the corner.

On the morning that deceased was killed his scaffold boards were laid upon the scaffold frame, but there was a board which had been nailed across the open window on the inside of the house, and from the main scaffold board another scaffold board extended and rested upon the piece nailed across the window. This board was insecurely nailed. It gave way under the weight of the deceased, and possibly the weight of his mortar board, thus causing him to fall. Crummett, the carpenter contractor, testified that he had erected the scaffold, not including the scaffold boards used by deceased, but that he did not nail the piece across the window. The two Pickerills testified that they did the lathing, which preceded the stucco work. One testified that he did not do the lathing in the corner where deceased was injured, and knew nothing about the board nailed across the window, and the other testified that he did the lathing in this corner and that the board was not nailed across the window when he did his work. The plaintiff's son testified that he did not see his father or any of his father's employees nail the board across the window, but he also testified that he did not know who did it. The evidence was to the effect that hammers and nails were to be had around the place, and that any one could have procured the use thereof to nail the piece in the window. Mr. Crummett testified that the deceased did not call upon him to make any alterations in the scaffold, and that, if deceased called upon any of his carpenters to do so, he did not know it. The son of the deceased testified that his father's laborers always placed the scaffold boards upon which they stood, and that he and his father always made sure that the scaffold was solid. There was a verdict for plaintiff, a motion for new trial was overruled, and defendant has appealed.

Opinion.

Appellant contends that the petition in this case alleges the relation of master and servant; that the evidence conclusively shows that the deceased was an independent contractor, and therefore there could be no recovery under the present petition. However, it is also contended that the evidence did not disclose a cause of action upon any theory. It is the established appellate practice to reverse and remand a case to permit another trial under an amended petition if it appears that there was substantial evidence upon which plaintiff's...