Messmer v. Bell & Coggeshall Co.

• Decision Date: 23 March 1909
• Citation: 133 Ky. 19
• Court: Kentucky Court of Appeals
• Parties: Messmer v. Bell & Coggeshall Co.

133 Ky. 19

Messmer v. Bell & Coggeshall Co.

Court of Appeals of Kentucky.

March 23, 1909.

Appeal from Jefferson Circuit Court, Common Pleas Branch (Third Division).

MATT O'DOHERTY, Judge.

Judgment for defendant, plaintiff appeals — Reversed.

O'NEAL & O'NEAL for appellant.

GREGORY & M'HENRY for appellees.

OPINION OF THE COURT BY JUDGE HOBSON — Reversing.

Edward Messmer, a little boy 13 years of age, working under Charles Wommer at the factory of the Bell & Coggeshall Company, had his hand hurt by getting it in between some unprotected cogwheels, and brought this action to recover for his injury. A trial was had which resulted in a verdict in his favor for $2,000. A new trial was granted, and a second trial was had, which resulted in a judgment and verdict for the defendant. The plaintiff appeals.

The defendant insisted on the trial that the boy was not in its employment, that Charles Wommer was an independent contractor, that he employed the boy, and that the boy was his servant. The court, at the conclusion of all the evidence, in effect instructed the jury that the Bell & Coggeshall Company was not liable for the negligence of Wommer, thus in effect holding that he was an independent contractor; and this is in effect the only question to be decided on the appeal. There is in the factory of the Bell & Coggeshall Company a machine known as a "squeezer," in which boxes are put together. Charles Wommer was in charge of this machine, and was paid by the box for squeezing the boxes. He was allowed to employ his own assistant, and paid the assistant himself. He employed Edward Messmer, who had been working with him about a week when the accident occurred. At the time of the accident the machine was in operation. Wommer went across the building to get a box, and while he was gone told the boy to hold a lever down, which prevented the machine from running in and out while he was gone. While the boy was thus holding the lever, a trip which was a part of the machine came up behind in its regular revolution striking the lever and knocking the boy's hand from it. His hand was near the cogwheels, and, when struck from the lever, got into the cogs and was painfully injured. The child was not warned of the danger, or given any instruction as to how to perform his duty, or cautioned in any way about the trip coming up and striking the lever. It was not necessary for the boy to hold the lever while Wommer was gone, if Wommer had set a prop under the machine to prevent it from coming down. If the defendant was chargeable with the negligence of Wommer in placing the boy where he was and directing him to hold the lever without any instruction as to his danger or warning as to how to perform his duty, clearly there was sufficient evidence of negligence to go to the jury; and so the question is: Was Wommer an independent contractor?

On this question the boy testified as follows: "Q. Was Mr. Wommer your boss? A. Yes, sir. Q. Who did he work for? A. For Mr. Billy Palmer and Mr. Stern and his brother. Q. Who were Stern and Palmer? Who were they? A. Superintendents. Q. Who was there in charge of Mr. Wommer, if anybody, who had control over Mr. Wommer? A. His brother and Billy Palmer and Stern. Q. Who were Billy Palmer and Stern and his brother working for? I mean to say: Were they working for the Bell & Coggeshall Company? Were they their superintendents? A. Yes, sir. Q. Did those gentlemen come into the place where you worked and have charge in that room? A. They would walk around. Q. What would they do? A. See if the work was done right. Q. I will ask you to state if, while you were working for Mr. Wommer, you did other work also for the Bell & Coggeshall Company? Were you sent anywhere else in the factory to work? A. I was catching from the saw behind his brother on Saturday. Q. Who did his brother work for? A. Mr. Palmer. Q. You mean Palmer, the superintendent of Bell & Coggeshall? A. Yes, sir. Q. How long had you been working there before you were hurt? A. A week and one day. Q. When you were employed to work under Mr. Wommer, what sort of work did they give you to do? A. Dip the ends into the glue and put them on boards. Q. Then what would be done with the boxes after you dipped them in. A. Eric Lightfoot would put them together, and Mr. Wommer would squeeze them up. Q. Who was Mr. Lightfoot? A. A boy that worked there. Q. Do you know whether other boys from the factory were taken by Mr. Wommer and put to work on that same machine while you were there? A. The other boy that quit and I got his job, he brought one up from downstairs and put him on it. The Court: Who did? The witness: Mr. Wommer. The Court: Which Wommer? The witness: The one that run the machine. The Court: The one that employed you? The witness: Yes, sir. Q. Where did he get the other boy? Who was the other boy working for before he got him? A. Billy Palmer. Q. In the same factory? A. Yes, sir." On cross-examination he stated as follows: "Q. Eddie, you were asked by Eric Lightfoot if you wanted a job before you went to Bell & Coggeshall? A. Yes, sir; that night. Q. Is it not a fact that he stated to you that Mr. Wommer wanted to employ boys? A. He asked me did I want to work, and I told him yes, and he said he could get me a job. Q. He told you Mr. Wommer wanted to employ you, didn't he? A. Yes, sir. Q. And you went to Mr. Wommer and was employed by him? A. Yes, sir. Q. And Mr. Wommer paid you? A. Yes, sir. Q. Bell & Cogeshall didn't pay you anything? A. No, sir. Q. Their men that worked for them were paid at the office, weren't they, the boys and men that worked for them? A. Yes, sir."

F. T. Ricketts, a witness for the plaintiff, testified as follows: "Q. Do you know Mr. Wommer, Charles Wommer? A. Yes, sir. Q. Did he work there at the same time you did? A. Yes, sir. Q. State how he worked there at that time, if you know, at the time you worked there. What was his business? A. He was running a squeezer and making boxes. Q. Did he have a regular job at that, or how would that be done? A. If he did not have any work there, he would go around in other parts of the mill and do work. Q. That is, Mr. Charles Wommer? A. Yes, sir. Q. What other work would he do when he did not have work there? A. Run a saw and work in the finishing gang. Q. Under whose control was Mr. Charles Wommer? A. Under Mr. Palmer. Q. Under whose control were all the men in the room where Charles Wommer worked? A. I don't know. I guess Mr. Palmer was. Q. Was he the superintendent there? A. Yes, sir. Q. I will get you to state, when men were needed on the squeezing machine, if they would be gotten out of other parts of the factory, or boys. A. Yes, sir. Q. When this squeezing machine would stop running, what became of the boys who were working on it? A. They were put around in other parts of the factory."

The proof for the defendant was, in substance, as follows: "Charles Wommer was paid so much a thousand, hired by the piece, but we often worked him the other way. For instance, we would get an order for a car load of 5,000 boxes, and he would squeeze those boxes up, and there would be a steady run by the piece probably, and then maybe he would be there, and there would not be...