McFarland v. Dixie Machinery & Equipment Co., 37429.

• Decision Date: 12 June 1941
• Docket Number: No. 37429.,37429.
• Court: Missouri Supreme Court
• Parties: ED. C. McFARLAND, Defendant in Error, v. DIXIE MACHINERY & EQUIPMENT COMPANY, a Corporation, Plaintiff in Error.

153 S.W.2d 67 ED. C. McFARLAND, Defendant in Error,
v.
DIXIE MACHINERY & EQUIPMENT COMPANY, a Corporation, Plaintiff in Error. No. 37429. Supreme Court of Missouri. Division One June 12, 1941. Rehearing Denied, July 25, 1941.

[153 S.W.2d 68]

Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.

REVERSED.

Roy W. Crimm, Walter W. Calvin and Calvin & Kimbrell for plaintiff in error.

(1) The testimony not only wholly failed to show that, at the time of the happening of the casualty in question, the defendant had reserved the right to exercise authoritative control over the operator of the tractor as to the operation thereof; or, that it was, in fact then and there exercising such control; but, on the contrary, it was affirmatively shown by the testimony that the defendant had unconditionally, and without reservation, surrendered such control over the operator of the tractor; and that, at the time of the occurrence in question, it was, in no sense, exercising such control; but, on the contrary, that such control was, then and there, being exercised by the superintendent, the line foreman and the gang foreman of the Works Progress Administration, which was, then and there, in full charge and control of the project in question, and also the work which was, then and there, being done in the furtherance thereof. Therefore, we most earnestly insist that the court erred in not sustaining the defendant's demurrer, offered at the close of all the testimony; and, also erred in submitting the cause to the jury for its determination. Garven v. C., R.I. & P. Ry. Co., 100 Mo. App. 617, 75 S.W. 193; Scherer v. Bryant, 273 Mo. 596, 201 S.W. 901; Gorman v. Jackson, etc., Co., 19 S.W. (2d) 559; Brunk v. Hamilton Brown Shoe Co., 334 Mo. 517, 66 S.W. (2d) 903; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W. (2d) 1085; Roman v. Hendricks, 80 S.W. (2d) 907; Kourik v. English, 340 Mo. 367, 100 S.W. (2d) 901; Skidmore v. Haggard, 110 S.W. (2d) 726; Vert v. Met. Life Ins. Co., 117 S.W. (2d) 252, 116 A.L.R. 1381; Branson v. Abernathy Furniture Co., 130 S.W. (2d) 562; Horn v. Asphalt Products Corp., 131 S.W. (2d) 871; Board of Common Council v. Hall, 227 Ky. 599, 13 S.W. (2d) 755; Devaney v. Lawler Corp., 56 Pac. (2d) 746; Shapiro v. Winston-Salem, 212 N.C. 751, 194 S.W. 479; Wadford v. Gregory Chandler Co., 196 S.E. 815, 213 S.E. 802; Errickson v. Schwiers, Jr. Co., 108 N.J.L. 481, 158 Atl. 482; Hudson v. Frye, 125 N.J. Eq. 62, 4 Atl. (2d) 408; Quinn v. Natl. Sugar Refining Co., 92 N.Y. Supp. 95, 102 App. Div. 47; Osborg v. Hoffman, 200 N.Y. Supp. 690, 252 App. Div. 587; Van Deussen v. Ruhtz-Pike E. & Const. Corp., 264 N.Y. Supp. 395, 238 App. Div. 178; Ramsey v. New York Central Ry. Co., 269 N.Y. 219, 199 N.E. 65, 102 A.L.R. 511; Tarr v. Heckla Coal & Coke Co., 265 Pa. 319, 109 Atl. 224; Rau v. Wilkes-Barre & M. Ry. Co., 311 Pa. 510, 167 Atl. 230; McGorry v. Sterling Supply Co., 176 Atl. 808; City of Waco v. Hurst, 131 S.W. (2d) 745; Pearson v. Arlington Dock Co., 111 Wash. 14, 189 Pac. 559; Standard Oil Co. v. Anderson, 212 U.S. 215, 53 L. Ed. 480; Denton v. Yazoo, etc., Ry. Co., 284 U.S. 305, 76 L. Ed. 310; Byrne v. Kansas City, etc., Ry. Co., 61 Fed. 609, 24 L.R.A. 693; Brady v. Chicago, etc., Ry. Co., 114 Fed. 100, 57 L.R.A. 712; Standard Oil Co. v. Parkinson, 152 Fed, 681; Harrell v. Atlas Portland Cement Co., 250 Fed. 83; Soderberg v. Atlantic, etc., Corp., 19 Fed. (2d) 286; Labbee v. Travenot S.S. Co., 37 Fed. (2d) 52; Collier, etc., Corp. v. Hartfeil, 72 Fed. (2d) 625; Childers v. Commissioner of Internal Revenue, 80 Fed. (2d) 27; Collier, etc., Corp. v. Drinkwater, 81 Fed. (2d) 200; Harlan v. Bryant, 87 Fed. (2d) 170; Jones v. Getty, etc., Co., 92 Fed. (2d) 255. (2) The testimony affirmatively established the fact that, at the time of the happening of the casualty in question, the plaintiff and Claude Whalen, the operator of the tractor in question, were servants of a common master — the Works Progress Administration; that they were under the control, and subject to the orders and directions, of the same superintendent, the same line foreman, and the same gang foreman; and, therefore, they became, and were, fellow servants, with the result that the plaintiff could not predicate a right of recovery, as against the defendant, herein on the negligence of Whalen; and, also for that reason, the court erred in not sustaining the defendant's demurrer, offered at the close of all the testimony; and, also erred in submitting the cause to the jury for its determination. Boston v. Kroger, etc., Co., 7 S.W. (2d) 1006; State ex rel. Kroger, etc., Co. v. Haid, 323 Mo. 9, 18 S.W. (2d) 478; Parker v. Nelson, etc., Co., 330 Mo. 95, 48 S.W. (2d) 906; Kemmler v. Richmond Heights, 114 S.W. (2d) 994; Soderberg v. Atlantic Lighterage Corp., 19 Fed. (2d) 286; Harrell v. Atlas Portland Cement Co., 250 Fed. 83. (3) While the testimony disclosed that Kansas City, a municipal corporation, had sponsored the project in question, had secured the necessary financial aid from the Works Progress Administration to perform the work contemplated thereby; and, had also made its contribution, so to speak, for the accomplishment of that project, the testimony, was, however, unequivocal, to the effect that the Works Progress Administration, at all times, was in complete and exclusive charge thereof; and, at all times, had and exercised, the sole and exclusive right to order and direct the manner in which all of the work, in connection therewith, should be done, as well as the sole and exclusive right to order, direct and control any and all persons, who might be employed thereupon, with the legal result that all persons, employed thereupon, because, and were pro haec vice, its servants; and, therefore, for those reasons, the court erred in not sustaining the defendant's demurrer offered at the close of all the testimony; and, also erred in submitting the cause to the jury for its determination. Williams v. Wymore, 292 N.W. 726; Hoover v. Independent School Dist., 264 N.W. 611; Brooks v. Seattle, 74 Pac. (2d) 1008; City of Waco v. Hurst, 131 S.W. (2d) 745. (4) There was no testimony which, even remotely, tended to establish the fact that it was any part of the plaintiff's duty, under his employment, to get upon the tractor mentioned in evidence and pound down the kingpin by which the cable was attached thereto; and, since said act was clearly outside of any duties which he was called upon to perform, within the course of his employment, and was not even contemplated thereby, he was, as to the performance of such act, a mere volunteer with no right to recover, as against any one, for any injury which he sustained in consequence of his so doing. Schaub v. Hannibal, etc., Ry. Co., 106 Mo. 74, 16 S.W. 924; Stagg v. Western, etc., Co., 169 Mo. 489, 69 S.W. 391; Duvall v. Armour Packing Co., 119 Mo. App. 150, 95 S.W. 978; Wiley v. Cincinnati, etc., Ry. Co., 161 Ky. 305, 170 S.W. 652; Marshall v. United Rys. Co., 209 S.W. 931; Kincaid v. Birt, 29 S.W. (2d) 97; 39 C.J., sec. 1083, p. 865. (5) Under the plaintiff's testimony and admissions, it is legally questionable whether or not he had the legal right to institute and maintain this action, but granting that he has the legal right, he would not be entitled to any of the proceeds which might be recovered therein. Hines v. Dahn, 267 Fed. 105; Brooks v. Seattle, 74 Pac. (2d) 1008; Hoover v. Independent School Dist., 264 N.W. 611; Williams v. Wymore, 292 N.W. 726; 5 U.S.C.A., sec. 796.

Henderson, Deacy, Henderson & Swofford for defendant in error.

(1) In reviewing the action of the trial court in overruling defendant's demurrer to the evidence this court must view the evidence most favorable to the plaintiff and treat the same as true and give the plaintiff the benefit of every reasonable influence fairly deducible therefrom. Further, the court must consider as untrue any part of defendant's evidence where the same is contrary to plaintiff's evidence. Kuhlman v. Water, Light & Transit Co., 307 Mo. 607, 271 S.W. 788; Doody v. California Woolen Mills Co., 274 S.W. 692; Larsen v. Met. Street Ry. Co., 110 Mo. 234, 19 S.W. 416, 16 L.R.A. 330, 33 Am. St. Rep. 439; Robison v. Chicago & I. Ry. Co., 334 Mo. 81, 64 S.W. (2d) 660; Darby v. Henwood, 145 S.W. (2d) 376. (2) The defendant's demurrer to the evidence was properly overruled. The right of control over Whalen's actions is decisive as to the liability for his negligent acts. The evidence adduced at the trial of this case, viewed in its most favorable light for the plaintiff, clearly demonstrates that the defendant had reserved the right of control over its servant, Whalen, and presented to the jury the question as to whose servant Whalen was at the time of the accident. The jury, by its verdict resolved this matter in favor of plaintiff, and its verdict being based upon substantial evidence, should not be disturbed. Erie Railroad v. Thompkins, 304 U.S. 64, 58 Sup. Ct. 817, 114 A.L.R. 1487; O'Brien v. Rindskopf, 334 Mo. 1223, 70 S.W. (2d) 1085; Roman v. Hendricks, 80 S.W. (2d) 907; Gorman v. Jackson Kansas City Showcase Works Co., 19 S.W. (2d) 559; Scherer v. Bryant, 273 Mo. 596, 201 S.W. 900; Kourik v. English, 340 Mo. 367, 100 S.W. (2d) 901; Garven v. C., R.I. & P. Ry. Co., 100 Mo. App. 617, 75 S.W. 193; Bertino v. Marion Steam Shovel Co., 64 Fed. (2d) 409; Standard Oil Co. v. Anderson, 212 U.S. 215; Yelloway v. Hawkins, 38 Fed. (2d) 731; Driscoll v. Towle, 818 Mass. 416, 63 N.E. 922; Rutkowski v. Case, 270 Pac...