Nolan v. Joplin Trans. & Stor. Co.
| Decision Date | 25 June 1947 |
| Docket Number | No. 6639.,6639. |
| Citation | 203 S.W.2d 740 |
| Parties | JAMES NOLAN, RESPONDENT, v. JOPLIN TRANSFER AND STORAGE COMPANY, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Jasper County. — Hon. Woodson Oldham, Judge.
AFFIRMED.
Stanley P. Clay and Scott, Scott & Blair for appellant.
The Court should have sustained appellant's motion for a directed verdict made at the close of the evidence in behalf of the respondent or at the close of all the evidence in the case and should have given the jury appellant's requested peremptory instruction to return a verdict for appellant at the close of the evidence in behalf of the respondent, or at the close of all of the evidence, and the court erred in over-ruling said motions and in refusing to give said peremptory instructions because: The facts shown by respondent's pleadings, admissions and evidence, as well as appellants pleading and evidence are to the effect that respondent at the time of his injuries was appellant's borrowed servant, borrowed by appellant to assist it in loading articles of freight onto appellant's motor truck, to which special employment respondent consented and actually entered upon the work of and for appellant, pursuant to an express or implied contract so to do, appellant having the power to direct and control the details of the work to be performed and to determine how the work should be done and whether it should stop or continue. Therefore, while respondent was engaged in said work for appellant, as its special employee, the relationship of employer and employee existed within the meaning of the Workmen's Compensation Act of Missouri, and respondent's accident and resulting injuries are governed by said Workmen's Compensation Act, both respondent and appellant at the time operating thereunder, and by reason of the express terms thereof respondent's claim was cognizable only before the Workmen's Compensation Commission, the express terms of which Compensation Act excluded all rights and remedies of respondent in this action, and the trial court was without jurisdiction. Ellegood v. Brashear Freight Lines, 236 Mo. App. 971, 162 S.W. (2d) 628, 631, 633; McFarland v. Dixie Machinery and Equipment Co., 348 Mo. 341, 153 S.W. (2d) 67, bottom 69, 70-72, 136 A.L.R. 516; Scribner's Case, 231 Mass. 132, 120 N.E. 350, 3 A.L.R. 1178; McInerney v. Delaware & H. Canal Co., 151 N.Y. 411, 45 N.E. 848; 35 Am. Jur., Sec. 541, p. 970. The word "employee" means a person employed to labor, for pleasure or interest of another and invokes the master and servant doctrine, which requires the master to use ordinary care to furnish the servant with a reasonably safe place to work. Simmons v. Kansas City Jockey Club, 66 S.W. (2d) 119, 124 Syl. 13. The Court is without jurisdiction of respondent's cause of action by reason of the express terms of the Missouri Workmen's Compensation Act, which provides that claims for accidental injury were and are cognizable before the Missouri Workmen's Compensation Commission and that the rights and remedies granted by said Compensation Act under the facts of this case excluded all other rights and remedies of respondent at common law, or otherwise, as an employee of appellant on account of respondent's accidental injuries, damages for which he has sued appellant herein. New Amsterdam Cas. Co. v. Boaz-Kiel Const. Co., (C.C.A. 8), 115 F. (2d) 950, 952; Wors v. Tarlton et al., 234 Mo. App. 1173, 95 S.W. (2d) 1199, 1206; State ex rel. Wors v. Hostetter et al., Judges, 343 Mo. 945, 124 S.W. (2d) 1072; Sargent v. Clements et al., 337 Mo. 1127, 88 S.W. (2d) 174, 177, 178; Simpson v. New Madrid Stave Co. et al., 227 Mo. App. 331, 52 S.W. (2d) 615. Respondent's own testimony both oral and by deposition signed by him, utterly defeats his right to recover. The respondent may not question the truth of his own testimony, he being bound by his own evidence, neither corrected nor explained by him. Steele v. Kansas City R.R. Co., 265 Mo. 97, 115, 175 S.W. 177; Graefe v. St. Louis Transit Co. et al., 224 Mo. 232, bottom p. 263, 264 top p. 265, 123 S.W. 835; State ex rel. Weddle v. Trimble et al., Judges, 52 S.W. (2d) 864, bottom p. 867, 2nd col., top 868, 331 Mo. 1; Vandenberg v. Snider, (Mo. App.), 83 S.W. (2d) 201, 202, col. 2; Ellis v. Wolfe-Shoemaker Motor Co., 55 S.W. (2d) 309, 227 Mo. App. 508; Smith v. Producers Coal Storage Co., (Mo. App.), 128 S.W. (2d) 299, 303, 2nd col., Par. 4; Tunget v. Cook, (Mo. App.), 94 S.W. (2d) 921, 925, col. 2; Ireland v. Shukert, (Mo. App.), 177 S.W. (2d) 10, 17. To recover respondent cannot rely on the testimony of his witness which directly conflicts with respondent's own testimony. McCoy v. Home Oil & Gas Co. (Mo. App.), 60 S.W. (2d) 715, 724, bottom col. 1, top col. 2; State ex rel. Weddle v. Trimble et al., Judges, 52 S.W. (2d) 864, bottom p. 867, 2nd col., top 868, 331 Mo. 1. A party to an action is bound by his evidence as a witness with like effect as an admission in a pleading. Holmes v. Leadbetter, 95 Mo. App. 419, 425, 69 S.W. 23; Shirts v. Overjohn, 60 Mo. 305, 308; Feary v. Metropolitan St. Ry. Co., 162 Mo. 75, 105, 106, 62 S.W. 452. Respondent testified on direct examination that he was knocked off the truck by a box of cigarettes being thrown against him but on cross examination he admitted that in his deposition, which he introduced in evidence as a part of his case, he stated that the cause of his injuries was the "box giving way" and that is what caused him to fall over the side of the truck. After so testifying respondent admitted that he couldn't tell whether it was a box thrown to him or the giving way of the box on which he was standing that caused his fall and resulting injuries. There was no other testimony as to the cause of respondent's injuries except the testimony of the other three witnesses to the accident, viz: Otis Lorton, William Glory and Joe Shiveley, each of whom testified that respondent was not hit by any box thrown by anyone, but that his injuries were caused by the box on which he was standing at the east edge of the truck wiggling or wobbling, thereby causing respondent to lose his balance and fall over the side of the truck to the ground. A non-expert witness must state facts, not opinions or conclusions, therefore the Court committed reversible error in admitting, over the objections of appellant, the conclusions or opinions of respondent's witnesses: The opinion or conclusion of respondent's witness Timberlake to the effect that there was no understanding or agreement with appellant whereby the Frisco Railway Company loaned its employees to appellant, even though such conclusion was nullified in law by Timberlake's testimony on cross examination that he would not say that the conversation relating to the borrowing of respondent by appellant did not occur, respondent having testified on direct examination and in his deposition introduced in evidence by him as part of his case that appellant requested the loan of respondent to appellant, to which loan respondent consented after his "boss," Timberlake, had agreed to such loan and respondent reported it to appellant and had actually entered upon the performance of his duties for appellant, which duties respondent was performing under appellant's direction at the time of his accident and resulting injuries. The opinion or conclusion of respondent's witness, Timberlake, to the effect that respondent was under the direction and control of the Frisco Railway Company on the date of respondent's fall and resulting injuries, November 2, 1943. The conclusion of the respondent's witness, Timberlake, to the effect that respondent's place of work for appellant on top of the load of cigarettes was not a safe place to work. The opinion or conclusion of the respondent that he was not under the direction of the appellant's truck driver, Joe Shiveley, or that he had agreed to take orders from said Joe Shiveley, appellant's objection to this testimony being that it was a mere conclusion of the respondent upon a matter which was for the jury to pass on and not for the witness to pass on; that respondent could testify to what was said and done, but it was for the jury to find whether or not respondent did accept the loan of respondent to appellant; that respondent had testified to what he did, his testimony being that when appellant's truck driver, Joe Shiveley, asked respondent to get up on top of the load of merchandise on the truck, respondent answered: "I will have to see my boss," and respondent went to Timberlake and asked him if he could do it and Timberlake said: "O.K." and respondent went back and told said Joe Shiveley that it was "O.K." and respondent went ahead and did it; that it is up to the jury to find what the conclusion is from those facts and not for the respondent to say. The opinion or conclusion of the respondent's witness, Timberlake, to the effect that he was in charge of respondent and told him what to do and what not to do. Schmidt v. Pitluck (Mo. App.), 26 S.W. (2d) 859, 862, col. 1; Masonic Home of Missouri v. Windsor, 92 S.W. (2d) 713, 716, bottom 2nd Col., 338 Mo. 877; Turpin v. Turpin (Mo. App.), 128 S.W. (2d) 279, bottom 2nd col. 181; Dagley v. National Cloak & Suit Co., 22 S.W. (2d) 892, (syl. 7), 895, 896, 224 Mo. App. 61; Hartwig-Dischinger R. Co. v. Unemployment Compensation Commission, 168 S.W. (2d) 78 (syl. 4) 81, 350 Mo. 690; Banty v. City of Sedalia et al., 120 S.W. (2d) 59 (syl. 1), 61, col. 1. Respondent cannot recover upon the theory that he was an invitee on appellant's motor truck and the appellant an invitor and that respondent's footing was unsafe and that appellant failed to use ordinary care to furnish respondent with a reasonably safe place in which to work on top of the load of merchandise which respondent was loading for appellant, where respondent's knowledge of his claimed unsafe footing was superior to that...
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