Kipp v. Oyster

• Decision Date: 07 December 1908
• Citation: 114 S.W. 538,133 Mo. App. 711
• Parties: KIPP v. OYSTER et al.
• Court: Missouri Court of Appeals

114 S.W. 538

133 Mo. App. 711

KIPP v. OYSTER et al.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

1. MASTER AND SERVANT (§ 265) — INJURIES — BURDEN OF PROOF — EXISTENCE OF RELATION.

The burden was upon a servant in an action against an alleged master to prove that his employer was defendant's vice principal.

2. MASTER AND SERVANT (§ 332) — INJURIES TO THIRD PERSONS — QUESTION FOR JURY — INDEPENDENT CONTRACTORS.

Where the facts upon which the relationship depends are disputed, the question is for the jury whether one was an independent contractor or a servant, but, where there is no dispute as to the facts, the court may declare as a matter of law whether one is an independent contractor or a servant, and that the employer's agreement with the alleged contractor was oral would not of itself make the relationship a jury question.

3. MASTER AND SERVANT (§ 316) — "INDEPENDENT CONTRACTOR."

An "independent contractor" is one who in rendering service represents the will of his employer only as to results, and not as to the means of doing the work; the test being whether the employer reserved control over him as to the manner of doing the work.

4. MASTER AND SERVANT (§ 316) — INJURIES TO THIRD PARTIES — INDEPENDENT CONTRACTOR.

Where one was employed to do carpenter work on a building for a lump sum, with the exclusive right to employ, control, and discharge his workmen, and was responsible to his employer only for the result of the work, he was an independent contractor, even though he rendered other services to his employer gratuitously by preparing plans and estimates, etc., and advising him as to purchasing materials.

5. MASTER AND SERVANT (§ 332) — INJURIES TO THIRD PERSONS—QUESTION FOR JURY.

That the employer referred to the contractor as his foreman in speaking to a workman would not of itself raise an issue of fact as to the relationship.

6. NEW TRIAL (§ 70)—GROUNDS—VERDICT CONTRARY TO LAW.

Where a demurrer to the evidence should have been sustained on the ground that plaintiff had no cause of action against defendant, a new trial was properly granted.

Appeal from Circuit Court, Jackson County; John G. Park, Judge.

Action by John L. Kipp against David Oyster and another. From an order granting a new trial, plaintiff appealed. Affirmed.

Ward, Hadley & Neel, for appellant. Keplinger & Trickett and W. R. Thurmond, for respondents.

JOHNSON, J.

Action by a servant against his master on account of personal injuries alleged to have been caused by the negligence of the master. Plaintiff was employed by Michael J. Casey to work as a carpenter on a business building being erected on lots in Kansas City owned by David Oyster and Emily Fiedler. He alleges that his injury occurred during the employment, that it was caused by negligence of Casey in failing to exercise reasonable care to provide him a safe place in which to work, and that Casey was the vice principal of Oyster and Fiedler, the owners of the property. All of these persons were joined as parties defendant, but during the trial plaintiff, compelled by adverse rulings of the court, took a non-suit as to defendants Fiedler and Casey, and proceeded with the action against Oyster as the sole defendant. The jury returned a verdict for plaintiff in the sum of $3,800, but afterward the court sustained defendant's motion for a new trial on the ground that "plaintiff is not entitled to recover," and plaintiff appealed.

The defenses pleaded in the answer are a general denial, a plea of contributory negligence, and a plea that Casey, the employer of plaintiff, was not the agent of defendant, but was an independent contractor. The court refused to give the jury a peremptory instruction to find for defendant. A careful examination of the facts of the case and of the principles and rules of law applicable thereto convinces us that the instruction should have been given on the ground that the relationship of Casey to Oyster was that of independent contractor. We concede for argument that plaintiff adduced some evidence—meager, it is true, but still of substance—from which the conclusion might reasonably be drawn that the injury was caused by the negligence of Casey in the construction and maintenance of a certain scaffold on which plaintiff was required to work, and which collapsed under the weight of plaintiff and his fellow workmen. From this standpoint, we turn to the facts in evidence that bear on the issue we consider to be of controlling importance.

Plaintiff testified that about three weeks before the injury he was employed to work as a carpenter by Casey, who is described in the evidence as boss carpenter and contractor. He worked on a number of buildings for which Casey was doing the carpenter work, was paid 35 cents an hour by Casey, and looked to Casey alone for orders. Another workman similarly employed, who was introduced as a witness by plaintiff, testified that on the day he entered the service of Casey he was at work on defendant's building when defendant approached him, and inquired for Casey, remarking: "Mr. Casey is my foreman, and I am waiting here to see him." From the evidence of defendant it appears that Mrs. Fiedler and Oyster, who owned adjacent lots on Southwest Boulevard, decided to build a two-story building on the two lots, the first story to be used for business purposes, the second as a hall. They did not employ an architect, but adopted plans prepared for them by Casey, who also submitted an estimate of the cost of the building and a statement of the materials required in its construction. An oral agreement then was made with Casey, the nature of which appears in the following extract from his testimony: "Q. ...