Mullich v. Brocker
| Decision Date | 28 November 1905 |
| Citation | 97 S.W. 549,119 Mo.App. 332 |
| Parties | MULLICH, Appellant, v. BROCKER, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Wm. L Bohnenkamp for appellant.
The demurrer to the evidence should have been overruled. (a) The evidence of plaintiff's witnesses showed conclusively that young Schoenborn was a mere servant of the defendant and not an independent contractor. O'Neill v. Blase, 94 Mo.App. 648, 68 S.W. 764; Waters v. Fuel Co., 52 Minn. 474, 38 Am. St. Rep. 564; Holmes v. Railway, 49 La. Ann. 1465; Sadler v. Henlock, 4 El. and Bl. 570; Morgan v. Bowman, 22 Mo. 549. (b) Even if it could be said that the boy in question was an independent contractor, the defendant is responsible in this case, because the horse in question was unruly and was of a vicious and mischievous disposition. One who puts such an animal as this horse in charge of an employee, to be conducted along the public streets of a city, cannot avoid or evade responsibility by investing the employee with the character of an independent contractor.
Fred. Wislizenus for respondent.
Plaintiff's damage, if any, was sustained while defendant's horse was in the control of an independent contractor. Fink v. Furnace Co., 82 Mo. 276; Morgan v. Bowman, 22 Mo. 538; Hilsdorf v. St. Louis, 45 Mo. 98; Clark v. Railroad, 36 Mo. 218; Barry v. St. Louis, 17 Mo. 121; Gayle v. Car & Foundry Co., 177 Mo. 446, 76 S.W. 987; Long v. Moon, 107 Mo. 334, 17 S.W. 810; Crenshaw v. Ullman, 113 Mo. 639, 20 S.W. 1077; Burns v. McDonald, 57 Mo.App. 601; Weise v. Remme, 140 Mo. 289, 41 S.W. 797.
--This case originated before a justice of the peace, was appealed to the circuit court and there went off on a demurrer to the evidence introduced by the plaintiff. The purpose of the action was to obtain damages for an injury to two horses belonging to plaintiff, which injury is alleged to have been due to defendant's negligence. One of the horses was killed in the accident and the other one hurt. It appears that while a servant of the plaintiff was driving a two-horse team along one of the principal streets of St. Louis, a horse belonging to the defendant, hitched to a two-wheeled gig or sulky, and driven by a lad sixteen years old, ran into plaintiff's team with such force that one of the shafts of the sulky pierced the breast of one of plaintiff's horses, from which injury that horse died. The other horse of plaintiff's team was hurt, but not fatally.
The testimony goes to show the defendant owned a small horse or pony, weighing seven or eight hundred pounds, which he desired to have broken so it could be driven. A man named Zeiss, who knew of defendant's wish to have some one break the horse, suggested to Frank Schoenborn that he (Schoenborn) might get the job. Zeiss recommended Schoenborn to Brocker as a suitable person to do the work. Schoenborn and Zeiss called at Mr. Brocker's residence and the former proposed to Brocker to break the horse. Schoenborn swore not much talk on the subject passed at that time, but Brocker said he would let him (Schoenborn) know about the employment next morning. As we gather from the evidence, though it is somewhat obscure on the point, after this conversation, Schoenborn and Zeiss went to the latter's house and from there Schoenborn went to his father's saloon and there found Brocker in conversation with his father. When Brocker stepped out of the saloon, Schoenborn again took up the subject of being employed to break the horse, asking $ 10 for the work, but finally making a bargain with Brocker to do it for $ 6. Brocker told the boy to come for the horse the next morning; which he did and took it to his father's home; where, it appears, there was a considerable lot or enclosed park. Schoenborn first drove the horse around the lot in harness and afterwards hitched it to a two-wheeled sulky and drove about the lot in that vehicle. Later in the day he drove about the streets of the city with the horse hitched to a gig; and while driving, the horse got beyond his control, ran into plaintiff's team and injured it as stated. Schoenborn said that Brocker did not ask him much about his experience in breaking horses, but did ask him if he had ever driven before. He replied that he had. Brocker also asked him if he had ever broken a horse to harness and Schoenborn said he had broken a horse once but that it was not a wild horse; that it was already partly broken; that he did not tell Brocker he had broken a great many horses, but told him he had broken two and knew all about horses. He said he understood German, but did not understand it very well as spoken by Brocker and for that reason did not talk very much with him; that he was to break the horse so Brocker could drive it; that he did this in two days and then took Brocker for a drive and the latter was satisfied. Schoenborn said the agreement was that he was to take the horse back to Brocker's stable every night. The horse is spoken of in the testimony as a small horse, a pony and a bronco. It was shown that while driving it along the street it was unruly and mischievous. Such is the substance of the testimony to which a demurrer was sustained.
The statement of the petition filed before the justice of the peace contains two paragraphs, in one of which the charge is that while plaintiff's two-horse wagon was being driven along one of the streets of St. Louis, defendant, through his servant and agent in charge of his horse and wagon, so negligently, carelessly and unskillfully managed, controlled and drove defendant's wagon that the wagon and horse were caused and suffered by said servant of defendant to run against plaintiff's team, thereby injuring both horses, as stated. The other paragraph of the statement charges that the defendant negligently engaged a youth of about sixteen years of age to drive his horse; when he knew, or by the exercise of ordinary care, could have known that said youth was too young, inexperienced and incompetent to drive said horse, which had not been driven often before, if at all; and that the driver so negligently employed by defendant, on account of youth, inexperience and incompetency, drove defendant's horse negligently and collided with plaintiff's team.
The ruling of the court below in sustaining the demurrer, is supported on the ground that the boy Schoenborn was an independent contractor for whose negligence the defendant was not responsible. The proposition that he was shown conclusively to be an independent contractor is contested by the plaintiff; and we think is not sound, according to the criterion in vogue in this State for determining whether, in a given instance, the relation of independent contractor and employer, or master and servant existed between two parties, one of whom was doing a service for the other. Schoenborn was not proved to follow the vocation of breaking horses. Perhaps he did; but there was scarcely enough evidence of the fact adduced at the trial to justify a finding by the jury that he had an independent occupation of that character. It appears that he had partly broken a horse or two; but whether for his father, as any boy might, or under employment for others, was not shown. When a person is an independent contractor and when merely a servant, are questions that have engaged the attention of the appellate tribunals of this State frequently; and yet we should hesitate to say that any test of universal application has been prescribed. Among others these cases may be consulted on the subject. [Barry v. St. Louis, 17 Mo. 121; Morgan v. Bowman, 22 Mo. 538; Hilsdorf v. St. Louis, 45 Mo. 94; Fink v. Furnace Co., 82 Mo. 276; O'Neill v. Blase, 94 Mo.App. 648, 68 S.W. 764.] In the recent case of Gayle v. Foundry Co., 177 Mo. 427, 446, 76 S.W. 987, the Supreme Court approved the following rule, taken from the work of Judge THOMPSON on Negligence (2 Vol. p. 899):
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