Lawhon v. St. Joseph Veterinary Laboratories

• Decision Date: 22 May 1923
• Docket Number: No. 22704.,22704.
• Citation: 252 S.W. 44
• Parties: LAWHON v. ST. JOSEPH VETERINARY LABORATORIES et al.
• Court: Missouri Supreme Court

252 S.W. 44

LAWHON v. ST. JOSEPH VETERINARY LABORATORIES et al.

No. 22704.

Supreme Court of Missouri, in Banc.

May 22, 1923.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Lida J. Lawhon against the St. Joseph Veterinary Laboratories and others. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Eastin & McNeely, of St. Joseph, for appellant.

Randolph & Randolph, of St. Joseph, for respondent.

RAGLAND, J.

Plaintiff's husband, John D. Lawhon, while digging a ditch for a sewer on defendant's premises, was killed by the falling in of the earth from the sides of the ditch. She sues for damages accruing to her by reason of his death.

Defendant, St. Joseph Veterinary Laboratories, hereinafter called the defendant, is a corporation, and at the times of the occurrences presently to be described was engaged in the manufacture of hog cholera serum at St. Joseph, Mo., where it owned and operated a plant for that purpose. In connection with the plant there was a sewer which drained the laboratory and hogpens into a nearby creek. In July, 1920, the management decided to discontinue the use of that sewer and construct another connecting with one of the city's main sewers. The city sewer with which the connection was to be made ran east and west at or near the north line of one of defendant's buildings. Some 4 or 5 feet east of the northeast corner of the building there was a telephone pole, and the connection was to be made at a point immediately east of the pole. From that point the new sewer was to extend in a southwesterly direction a distance of 140 feet, passing along the east side of the building, and getting closer to it as it proceeded south. The incline on which the sewer pipe was to be laid was such that the south end was within 2 or 3 feet of the surface of the ground, while the north end was 13 feet below.

On July 26, 1920, Lawhon and one Hosford began the construction of" the sewer. They commenced at the north end to dig the trench to receive the 18-inch tiles that would form the sewer pipe. As fast as they brought a sufficient length of trench to the necessary depth they laid a tile and then went forward with the excavation, throwing the dirt back over the tile that had been laid. The tiles were 3 feet in length. On the second day, about noon, the construction had progressed to a point near the southeast corner of the building heretofore mentioned. At that time Lawhon was digging at the bottom of the trench, which was about 12 feet deep, and Hosford was just north of him, standing on the end of a tile, and throwing the dirt back. While they were so engaged large segments of earth broke loose and fell in from the west wall of the excavation near the building, completely covering Lawhon, and causing his death.

So far the facts are not in dispute. The terms of the contracts under which Lawhon was employed is the matter sharply at issue; if they were as plaintiff contends, the relation of master and servant was created; if as defendant contends, Lawhon was an independent contractor. The only evidence offered by plaintiff with respect to this phase of the case was the testimony of Hosford. He testified that for a number of years he had worked with Lawhon, but not for hint, and that his employment on defendant's premises in connection with the sewer was brought about by Lawhon merely telling him that a sewer was to be dug there. After stating that he and Lawhon went to defendant's grounds to dig a sewer for it, he testified as follows with reference to the superintendence of the work:

"Q. Now, Mr. Hosford, just tell the court and the jury where you started and were going to dig that morning when you and Mr. Lawhon went there? Where did you start to digging? A. We started just about 6 or 6½ or 7 feet —I could not say exactly, because I never measured it myself, but we started over here about or 7 feet east of the north end of their building, and then we were intending to run in a wedge fashion and come across here, and we would have been, oh, I expect 3½ or 4 feet from the building at the south end, and we had dug, and there was a space in here of about 20 or 22 feet, and I would not say positively which, where it would be about 12½ or 13 feet to the bottom of the sewer, and we started over here in order to keep away— well, we started here, and we dug once across there; and then Mr. Holkenbrink come, Bill, that gentleman sitting over there, and when he come up, he says, `You ain't digging that where we want it,' or `where I want it;' I don't know which way he did state that; and of course we quit, and he went over here about 2 or 2½ feet further west, and he said, `I want it right through here,' and he showed us, and Mr. Lawhon said then, he says, The reason we are digging it there, we want to keep as far from the building and that pole as possible.'

"Q. Who was in charge of things around the plant there for the St. Joseph Laboratories Company? A. Mr. Bill Holkenbrink. I thought his name was Fred, but it is William.

"The Court: Who was in charge there, and who seemed to be conducting the plant? A. Mr. Holkenbrink.

"The Court: Mr. Will Holkenbrink? A. Yes, sir.

"The Court: Who had charge of this construction of this sewer here for the plant? A. Mr. Holkenbrink. I worked under his instructions, anyhow.

"Q. Who, if anybody, was giving directions there for the digging of that sewer for the St. Joseph Veterinary Laboratories Company that morning? A. Mr. Holkenbrink.

"Q. Which Mr. Holkenbrink? A. Bill, or William, or whatever they call him.

"Q. Was it William? A. I don't know which one.

"Q. It was the one known as Bill? A. Yes, sir.

"Q. Now, then, Mr. Hosford, what did Will say when he, as you have stated, directed you to come over and dig close to the plant, and directed Mr. Lawhon? A. You want me to explain that same thing over?

"Q. Yes; just go right ahead, now. A. When he come up, he says, `You ain't digging it where r want it,' or `we want it;' I don't know which way he did mention that; and of course we stopped, and he took us over here about 2 or 2½ feet further west, and showed us right through there where he wanted it. Well, Mr. Lawhon made the remark, he says, `We know'

"The Court: Go ahead, and tell what was said there, and done. A. He said, `The reason we started here, we wanted to keep as far away from that telephone pole and the building, for it might have a tendency to cave.'

"Q. Who was it said that, Mr. Holkenbrink? A. Mr. Lawhon; and Mr. Holkenbrink said, `We will watch that, and, if it shows a tendency, or any danger of caving,' he says, `we will brace it;' and so we went, of course—we were constructing the work; he was the boss, and we dug where he told us to dig, and that was where we dug, and where he told us to.

"Q. That was the morning of what date? What day of the week? A. That was Monday morning, the 20th day of July.

"Q. Then, Mr. Hosford, you may state whether or not you and Mr. Lawhon, the deceased, continued digging the sewer during that day? A. We certainly did.

"Q. And during the following day, Tuesday, the 27th? A. We certainly did.

"Q. Was Mr. Holkenbrink there all during the 26th and the 27th? A. Yes, sir.

"Q. And what was he doing, if anything, with reference to the supervision of the work, and digging there? A. Him and Mr. Crane always laid down the tile, and also the cement, and always instructed me to put the level on to see that I had gotten them laid at the right slope, which I did, after he told me to.

"Q. They were generally on the bank? A. Yes, sir.

"Q. Had they been during the course of that morning on the bank? A. Yes, sir; they had been there most of the time. I never missed them at all. I never paid no attention to them at all.

"Q. They had been on the bank there the frost of the forenoon? A. Yes, sir.

"Q. What were they doing up there on the bank, Mr. Hosford? What work were they doing, if anything? A. They would always let down the tile to us, and also the cement. They would put the rope through the tile, and they would let them down, and then I would take the rope out and put them under the tile, and they would lift it up so I could shove them together and join them.

"Q. Which one of them, if either, was giving the directions with reference to the level and that sort? A. Mr. Holkenbrink; Will Holkenbrink.

"Q. Now, Mr. Hosford, had any bracing or material for bracing been offered to you or Mr. Lawhon during the progress of that work? A. I never heard of it only the first day, what I told you that they spoke about.

"Q. You never heard of it until when? A. When we started the sewer, he said, `We will watch it.'

"Q. We will watch it, and do what? A. Brace it. * * *

"Q. Did you hear any warning of this impending fall of earth given beforehand? A. No, sir. * *

"Q. And as soon as you got there at 6:30 you began work? A. No, sir. We went to this manhole out toward the packing house, and located the sewer as near as we could, and then we began work.

"Q. You located the main sewer? A. Yes, sir.

"Q. As near as you could? A. Yes, sir.

"Q. Now, there were two rows of stakes set along the line where you were to dig, were there not? A. I never saw any stakes. "Q. You never saw any stakes at all? A. No, sir; not until Mr. Holkenbrink come; no. "Q. When he came, you saw the stakes then, didn't you? He pointed them out, didn't he? A. Yes, sir; he showed them to us.

"Q. And there was a paper that the engineer furnished, signed by C. O. Judson, engineer, that was put on a board, and you had it there all the time, didn't you? A. I never saw such a thing; no, sir.

"Q. A little paper like this, that had all the measurements on it (indicating)? A. No, sir;

I never saw that.

"Q. And it wan on a little board? A. No, sir.

"Q. And had it there where you could see just how far to go? A. No, sir."

On the part of the defendant the evidence tended to show:

Dr. Frederick W. Holkenbrink was the vice...