Klaber v. Fidelity Bldg. Co.

• Decision Date: 01 April 1929
• Docket Number: No. 16535.,16535.
• Citation: 19 S.W.2d 758
• Parties: KLABER v. FIDELITY BLDG. CO.
• Court: Missouri Court of Appeals

19 S.W.2d 758

KLABER v. FIDELITY BLDG. CO.

No. 16535.

Kansas City Court of Appeals. Missouri.

April 1, 1929.

Rehearing Denied April 29, 1929.

Certiorari Denied July 2, 1929.

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

"Not to be officially published."

Suit by Fred W. Klaber, administrator of the estate of E. M. Galloway, against the Fidelity Building Company. Judgment for plaintiff, and defendant appeals. Affirmed.

McCune, Caldwell & Downing, of Kansas City, for appellant.

Hogsett & Boyle, of Kansas City, for respondent.

BLAND, J.

This is a suit for damages for personal injuries. Plaintiff below recovered a verdict and judgment in the sum of $5,000.00 and defendant has appealed. Said plaintiff died subsequent to the rendition of the judgment and the cause was revived in the name of Fred W. Klaber, as administrator. Deceased's death was brought about by causes wholly unrelated to the facts upon which this cause of action is founded.

The facts show that in August, 1924, defendant was building a number of small houses on College avenue in Kansas City. Plaintiff went to work as a carpenter on the particular house in question upon the Monday preceding the Friday he was injured. The house faced west and was to be one story in height with a sleeping porch on its rear above the first floor. When plaintiff began his work on Monday the foundation and part of the sub-flooring on the first floor had been laid. Thereafter plaintiff and three other carpenters were engaged in working on the house. During the next three and one-half days the sub-flooring was finished, the studding set up, rafters for the roof put in place and the boxing and sheeting nailed on. Some time on Tuesday Walker, one of the carpenters, directed that a scaffold be built, which was done. The scaffold ran around the four sides of the house and on the east side or the rear consisted of the width of two by ten lumber. While plaintiff was working on this ten inch scaffold at the southeast corner of the building nailing building paper on the sleeping porch he fell from the scaffold, breaking his leg and receiving other serious injuries.

Defendant insists that the court erred in failing to sustain its demurrer to the evidence. This contention is based upon two grounds: (1) That plaintiff was an employee of Walker and that the latter was an independent contractor; (2) that the alleged negligence of the defendant in furnishing the narrow scaffold was not the proximate cause of the injuries.

We will first state the evidence concerning the issue of independent contractor.

Apparently for the purpose of establishing the employment of Frank Eaton and S. W. Newman by defendant, defendant's connection with the house and other facts necessary to establish plaintiff's case, plaintiff placed upon the stand Raymond N. Eaton, president of the defendant. On direct examination this witness was not asked concerning the contract between Walker and the defendant, but on cross-examination he testified that the arrangement with Walker was that defendant was to give him $450.00 for the carpenter work in the construction of this particular house, except laying and scraping the floors, defendant to furnish the material. Defendant's evidence tended to show that prior to this time Walker had constructed the carpenter work for the defendant on other houses similar in design and under similar contracts; that there were no detailed plans and specifications for this house, but Walker was furnished with a sketch of the floor plan and was to duplicate other Houses which he had built shortly before. Raymond Eaton testified that the contract with Walker was oral, and that defendant let other parts of the work to other contractors, such as the stone work, plastering, plumbing, wiring and the like. The witness testified that what we have detailed from his testimony was the entire contract with Walker and when it was made with the latter nothing was said in reference to defendant reserving any right to direct as to how the work from time to time should be done.

Deceased testified that no one made any arrangements with him in reference to the work excepting Walker, who fixed his wages and paid him; that no arrangement was made with the defendant as to the hours he should work or the kind of work he should do; that he never discussed any of these matters with any one except Walker. However, he did testify that a week before he was injured he went to the building in question seeking employment; that he saw Walker relative to the same; that the latter advised him that the former was the "foreman" on the house and told plaintiff to report for work on the following Monday; that Walker was present at all times during the progress of the carpenter work and assisted therewith; that Walker, deceased and two other carpenters were the only persons employed in connection therewith. Walker testified that he contracted with the defendant to do the carpenter work for the flat sum of $450.00 and that the work covered everything except laying and scraping the floors. However, he testified that he received a check from the defendant every week during the progress of the work.

The evidence shows that Frank Eaton was the son of defendant's president Raymond Eaton; that at the time plaintiff was injured Frank Eaton was twenty or twenty-one years of age. His father testified that the son was employed by the defendant "to see that the different sub-contractors would get on the job at the proper time; that the material was ordered for them at the proper time; that pickups were made and the work in that manner moved along as it should"; that his son was not overseeing the construction of the houses; that the latter had no "authority or instructions to have anything to do with the carpenter labor on this house"; that his son had no title.

However, the son, testifying for the defendant, stated that he was the "material clerk" on the job; that in addition to ordering the material and seeing that it arrived on time and that the material left over was returned, he "would just see that the house was built according to Walker's agreement as to how he would build, that is the result, the house would be according to these plans and what specifications we had. * * * I would see that the plumbers got there when the carpenter was far enough along for them to get on the job; see that the tinner got there and the plasterer got his laths there so that it would keep moving and the house progress. Somebody had to do that"; that he gave orders and directions towards keeping the work going; that he kept books and records relative to the cost of each house when finished; that defendant kept no records as to what Walker or any of the other sub-contractors paid his men. However, the witness testified on cross-examination that if "I was asked about something I would tell them"; that he might have given orders to Walker or his carpenters and that "he did oversee some out there," but that he had no charge of the carpenter work or checking up the carpenters except that "if the work wasn't going on according to specifications and what plans we had and what Walker knew about the house I felt at liberty to tell him."

Deceased testified that when he went to work on Monday morning Frank Eaton came up to him and "asked me my name and put it down on a book," "a small note book"; that Frank Eaton "once in awhile" would say "hurry up boys"; that said Eaton did not personally give any directions or orders to the witness but would tell the workers collectively when a particular part of the work had been finished to go to the next part of it; that said Eaton told them "when we run the eaves, the sheeting out over the eaves to leave it two or three feet so it could be recut for the barge rafters"; that he heard Eaton say to Walker to space the rafters "two feet on center." He further testified that Eaton was present on the work "principally all the time." "Every time I would look around I would see him."

The evidence shows that Frank Eaton without any suggestion from deceased called a doctor and an ambulance after plaintiff fell; that said Eaton called deceased's wife by telephone, and that he and Newman, defendant's superintendent on the work, came to deceased's house and took his wife to the Christian Church Hospital where deceased had been conveyed. Deceased remained there for two days when he was taken to the General or City Hospital.

Frank Eaton was in the basement of the house at the time plaintiff fell but Newman was not there. Newman's attention having been called to the casualty he came up and accompanied deceased in the ambulance to the Christian Church Hospital. At that place plaintiff was treated by Dr. Kuhn. Neither plaintiff, his wife nor Walker called Dr. Kuhn and the inference is that he was called by some one connected with the defendant.

Plaintiff testified that Newman never gave him any orders and there is no evidence that Newman gave any other men on the work any directions or attempted to control them in any way. However, Newman gave the following testimony:

"Q. Was that the same sort of scaffold that was around the building before the man was hurt and after he was hurt?

"A. Same scaffold we used around all the buildings." (Italics ours.)

Plaintiff testified that Newman laid off the rooms; that "he laid out the stair horses for the sleeping porch"; that Newman was there two or three times a day and that the latter did nothing else except talk with Mr. Walker and Frank Eaton and watch the progress of the work. Plaintiff testified that he did not see Raymond Eaton, defendant's president, until after the witness was injured. There was evidence tending to show that Raymond Eaton was at the house in question every morning.

Deceased's widow testified that she had a conversation with Newman in the office of the Christian Church Hospital and that he told her not to worry; "that the bills...