Kiser v. Suppe

• Citation: 112 S.W. 1005,133 Mo. App. 19
• Parties: KISER v. SUPPE et al.
• Decision Date: 19 October 1908
• Court: Court of Appeal of Missouri (US)

112 S.W. 1005

133 Mo. App. 19

KISER v. SUPPE et al.

Kansas City Court of Appeals. Missouri.

October 19, 1908.

1. MASTER AND SERVANT (§ 316)—EXISTENCE OF RELATION.

Where defendant engaged J. to sink a shaft, paying him so much per foot, and J. hired plaintiff to help him, and agreed to pay him one-third of the compensation received from defendant, J. having the exclusive right to employ, control, and discharge his helpers, plaintiff was not defendant's servant.

2. MASTER AND SERVANT (§ 316)—THE RELATION—"SERVANT."

In strictness, a servant is one who, for a consideration, engages in the service of another and undertakes to observe his directions, and the relation does not depend on whether the master was to pay anything, or whether the service was permanent; the right to control the action of the servant, which implies the power to discharge, being the essential element.

3. MASTER AND SERVANT (§ 316)—EXISTENCE OF RELATION—INDEPENDENT CONTRACTORS.

Where defendant engaged J. to sink a shaft at so much per foot, reserving the right to discontinue the work at any time, and agreed to furnish a cable, etc., to do the work, but J. was to furnish the necessary materials required, and employ the necessary help, with the right to direct the manner of their work and discharge them at will, J. was an independent contractor, and not defendant's servant; and that defendant could discontinue the work at any time did not of itself make J. his servant.

4. MASTER AND SERVANT (§ 316)—EXISTENCE OF RELATION—SUBCONTRACTOR.

Where an independent contractor hired plaintiff to assist in sinking a shaft, retaining

control over the manner in which plaintiff should do the work, and the right to discharge him at will, plaintiff was a servant, and not a subcontractor, though he was to be paid for the work by the foot, on the basis of the contractor's compensation, and not by the day.

5. MASTER AND SERVANT (§ 321)—INJURIES TO THIRD PERSONS — INDEPENDENT CONTRACTORS — DEFECTIVE APPLIANCES — MASTER'S LIABILITY.

Though defendant owed no contractual duty to the servants of an independent contractor employed by him, defendant's agreement with the contractor to furnish a cable to do the work, with knowledge that he would employ others to assist him, bound defendant to exercise reasonable care to furnish a cable reasonably safe for the intended use, and his failure to do so was a breach of duty.

6. MASTER AND SERVANT (§ 321)—INJURIES TO THIRD PERSONS —INDEPENDENT CONTRACTORS — DEFECTIVE APPLIANCES — MASTER'S LIABILITY TO CONTRACTOR'S SERVANTS.

While one employing an independent contractor to do work is not liable for the contractor's negligence, if the latter has entire freedom as to the means of doing the work, where the employer furnishes any of the instrumentalities of work, he owes the contractor and his employés the duty of care as to the matters over which he retains control, but that duty ends when he has furnished safe instrumentalities, and does not continue throughout their use by the contractor.

7. MASTER AND SERVANT (§ 102)—INJURIES TO SERVANT—MASTER'S DUTY—APPLIANCES.

Plaintiff's employer owed him the duty to exercise reasonable care to furnish reasonably safe appliances to perform the work, and to continue the exercise of such care during the progress of the work.

8. MASTER AND SERVANT (§ 117)—INJURIES TO SERVANT—MASTER'S NEGLIGENCE.

Where plaintiff's employer knew that a cable used to carry a heavy load in sinking a shaft was rusty and worn when he received it, and was warned that it might need repairs, and the defect could have been discovered and remedied by removing the cloth around it and cutting off the end of the cable, he was negligent in not repairing it.

9. MASTER AND SERVANT (§ 129) — INJURIES TO THIRD PERSONS—NEGLIGENCE OF INDEPENDENT CONTRACTOR—PROXIMATE CAUSE OF INJURY.

Though an employer furnished an independent contractor with a defective cable for use in the work, knowing the contractor's servants would use the appliance, the contractor having been warned of the defect, and having continued to use the cable in its defective condition, his negligent failure to repair it was the proximate cause of injuries to his servant by reason of the defect, and not the employer's action in furnishing the defective cable.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by John D. Kiser against W. H. Suppe and others. From a judgment for plaintiff, defendants appeal. Reversed.

Maher & Threlkeld, for appellants. C. H. Montgomery, for respondent.

JOHNSON, J.

Action for damages resulting from personal injuries alleged to have been caused by the negligence of defendants, who are sued as partners. Plaintiff had judgment against all of the defendants for $650, and defendants appealed.

At the time of the injury, September 22, 1906, plaintiff was working as a miner in sinking a shaft on mining property owned by defendants in Jasper county. He was at the time in a shaft which was over 100 feet deep, when a wire cable used in hoisting broke under the strain of the load being hoisted, thereby permitting the loaded tub to fall to the bottom, severely injuring him. The negligence charged in the petition is the breach of a duty defendants owed to plaintiff to exercise reasonable care to provide a reasonably safe cable, and the evidence of plaintiff tends to show that at the time of the injury the cable had become weakened where it was attached to the hook by which the tub was suspended; that it was in an unsafe condition; that the defect was due to the ravages of rust, which were greater at this than at other parts of the cable, because of the fact that the cable was bare except at the place mentioned, where it was covered with cloth, or leather, for the space of a few inches; and that the defect was concealed from plaintiff by the covering, but would have been discovered by defendants had they removed the cloth, or leather, and examined the cable end with reasonable care The subject of the nature of the relationship of plaintiff to defendants established by his employment is one of vital importance. The facts material to this issue are not in dispute. It appears that some 10 days before the injury, defendants, having concluded to sink to a greater depth a prospect shaft on their property, then about 112 feet deep, entered into an agreement with a miner named Johnson to do the work. By the terms of the contract, which was not in writing, Johnson first was to clear out the old shaft, and "to crib six feet of it." For this service he and his assistants were to be paid day wages. After that was done, Johnson was to proceed to sink the shaft, for which he was to receive $10 per foot, was to employ and pay the miners he found it necessary to employ to do the work, and was to furnish the powder and other material consumed in the operations. Defendants, in addition to the consideration mentioned, agreed to furnish Johnson, for use in the work, a derrick, a hoister, a cable, and a tub owned by them. The number of feet to be sunk was not specified, and we find, in effect, defendants reserved the right to discontinue the work at any time. Johnson hired plaintiff and another miner to help him, and agreed to pay plaintiff for his work one-third of the compensation received from defendants less the cost of the powder and other material consumed. Johnson alone had the right to employ and discharge the miners, and to control the manner in which their work should be done. Defendants had no control over such matters.

We are not overlooking the fact that, in answer to a question asked by the court, Johnson testified: "He [meaning one of defendants] said he would give us $10 a foot to sink the shaft." But the testimony of this witness, taken as a...