Madsen v. Lawrence
| Decision Date | 08 April 1963 |
| Docket Number | No. 1,No. 49565,49565,1 |
| Citation | 366 S.W.2d 413 |
| Parties | George M. MADSEN, a Minor, by His Father and Next Friend, George C. Madsen, Respondent. v. James LAWRENCE, Appellant. . Division |
| Court | Missouri Supreme Court |
Ernest H. Fremont, Jr., Thos. J. Conway, Jr., Kansas City, for appellant.
Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
William J. Gilwee, kansas City, Donald E. Lyons, Kansas City, for respondent.
PAUL VAN OSDOL, Special Commissioner.
September 8, 1959, at approximately twelve o'clock noon, plaintiff George Michael Madsen, then ten years of age, was sitting on the terraced lawn of the Anderson home at the southwest corner of the intersection of 57th and Swope Parkway, in Kansas City, Missouri. George Michael lived with his parents in the Madsen home nearby, and most of the morning he and some young friends had been watching the work of excavating earth from a lot or tract of land of higher elevation lying north of 57th Street and west of Swope Parkway.
The lot or tract of land belonged to James E. Southard and Elmer Tindell, builders, who were planning to build a duplex residence at the site. They had engaged defendant James Lawrence, an excavator, to dig the basement, and Lawrence had called three dump-truck owners, Robert L. Young, Robert Edwards, and Eddie Edwards, to receive the excavated dirt from the excavating machine at or in the excavation and to haul the dirt away from the excavation and site and to the sites of other Southard-Tindell building projects in the neighborhood.
At about noon, Henry A. Smith, who was driving the dump truck belonging to Eddie Edwards, left the truck parked, headed westwardly and unattended, on the north side of 57th, south of the site of the excavation and a few feet east of and behind a parked service truck belonging to defendant Lawrence. The unattended dump truck suddenly rolled backwardly and downgrade eastwardly and angled southeastwardly on and across 57th and the south curb and sidewalk of that street and partially over on the Anderson lawn striking plaintiff and seriously injuring him.
Plaintiff by next friend instituted this action for $150,000 damages for personal injuries, joining Eddie Edwards, owner of the truck which struck and injured plaintiff; Henry A. Smith, driver of that truck; defendant James Lawrence, the excavator; and James E. Southard and Elmer Tindell, builders, as parties defendant.
Upon trial, and at the close of plaintiff's case, the trial court sustained the motion of defendants Southard and Tindell for a verdict directed in their favor. At the conclusion of all of the evidence, plaintiff voluntarily dismissed, without prejudice, as to defendants Eddie Edwards and Henry A. Smith; and upon submission of plaintiff's case against the remaining defendant, James Lawrence, the jury found and returned a verdict for him and against plaintiff. However, the trial court sustained plaintiff's motion for a new trial on the specified grounds 'the verdict is against the evidence' and 'the verdict is against the weight of the credible evidence in the case.' And defendant has appealed from the newtrial order.
Plaintiff had submitted his case to the jury on the theory that Henry A. Smith, driver of the truck that struck and injured plaintiff, was working under the control or subject to the right of control of defendant Lawrence, and that defendant Lawrence was responsible, as a master, for the conduct of Smith, as a servant, under the doctrine of respondeat superior.
Defendant Lawrence does not herein question the sufficiency of the evidence in supporting the submission of the issues of Smith's causal negligence and plaintiff's injuries, but defendant does challenge the sufficiency of the proof of an employer-employee or master and servant relationship between himself and Smith. Defendant invites our thought that the whole evidence shows that Smith was not his employee, but was the employee of Eddie Edwards (who, defendant suggests, was an independent contractor) or was a co-independent contractor with Eddie or was the employee or servant of Southard and Tindell, the builders.
The theories and contentions of the parties involve distinctions between the master and servant relationship and the relationship of independent contractor.
"An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58. See also Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Talley v. Bowen Construction Company, Mo.Sup., 340 S.W.2d 701.
Sundry factors or circumstances enter into the determination of the actual relationship; ordinarily no one of these is alone conclusive, and all must be viewed to see whether control, or right to control has been exercised and retained over the alleged employee's physical conduct and details of the work. Talley v. Bowen Construction Company, supra, and cases therein cited.
In the Talley case, a case cited and greatly relied upon by defendant, this court comprehensively examined the 'whole of the evidence' introduced in the trial of the cause. (See also Skidmore v. Haggard, supra.) And from the whole of the evidence, this court determined as a matter of law that plaintiffs in the Talley and Skidmore cases were not entitled to go to the jury on the ultimate respondeat-superior issue. But the 'whole of the evidence' which this court reviewed in those cases was the respective plaintiffs' 'own evidence' and which was wholly uncontradicted. Defendants in those cases had not introduced any evidence. 'In such event, and although we consider the evidence in the light most favorable to plaintiff, it becomes the duty of the court to decide the effect of the entire evidence, as a matter of law.' Talley case, supra; Skidmore case, supra.
In his brief filed herein defendant in our case, having stated and argued the effect of the entire evidence (the effect of the evidence introduced by plaintiff and the effect of the evidence introduced by several defendants, including the evidence introduced by defendant Lawrence), would have us say, 'Since the plaintiff under all the evidence is not entitled to recover, the action of the trial court in granting him a new trial is error.'
But in this case we shall not consider the evidence from the whole of those standpoints.
It was within the trial court's discretion to grant a new trial on the ground the verdict of the jury was against the weight of the evidence. However, such discretion was to be judicially, not arbitrarily exercised. It has been said that, in determining the question whether the trial court (in granting a new trial to plaintiff on the ground the verdict was against the weight of the evidence) was acting in the exercise of its judicial discretion, the appellate court will endeavor to ascertain if there was sufficient substantial evidence to sustain a verdict for plaintiff, the party to whom the new trial was granted. Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, and cases therein cited; Dawson v. Scherff, Mo.Sup., 281 S.W.2d 825; Hendershot v. Minich, Mo.Sup., 297 S.W.2d 403. And in endeavoring to so ascertain we, in the instant case, shall consider the evidence in a light most favorable to plaintiff and give him the benefit of all favorable inferences reasonably to be drawn from all the evidence and disregard defendant's evidence unless it aids plaintiff's case. Kiburz v. Loc-Wood Boat & Motors, Inc., Mo.Sup., 356 S.W.2d 882.
In supporting his claim, plaintiff in part relied upon admissions made in testimony, by deposition, of defendant Lawrence.
Defendant Lawrence testified (by deposition, portions of which were introduced by plaintiff) that he is in the excavating and grading business--such as digging basements, moving dirt, cutting down lots, and so forth. He owns excavating and dirtmoving machinery, including a 955 hiloader and a service truck; but he doesn't own any dump trucks to receive dirt from his digging machines and to haul the dirt out of and away from excavations.
As to the dirt excavated--
A few days before September 8th defendant Lawrence was engaged by Southard and Tindell to excavate the basement at 57th and Swope Parkway. This was a contract, but not a written contract.
There was dirt on this excavation job that defendant Lawrence had to dispose of. Southard and Tindell did not furnish any labor or equipment necessary to the excavation and, 'since there had to be trucks there, I (defendant Lawrence) called the dump trucks.' He called three. Robert L. Young owned one truck, and operated it; and defendant called the Edwards boys, Robert and Eddie. They had two dump trucks. Defendant Lawrence at that time regularly used these three men, and their trucks.
Eddie Edwards was at the excavation site the morning of September 8th. Defendant Lawrence knew who was going to drive the Eddie Edwards truck that day. Henry A. Smith was operating the Eddie Edwards truck on this job with the consent of Eddie. Eddie had no control over the details of the excavation work. ...
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