Perdue v. Chapman

• Decision Date: 29 January 1940
• Docket Number: No. 19600.,19600.
• Parties: PERDUE v. CHAPMAN.
• Court: Missouri Court of Appeals

137 S.W.2d 483

PERDUE v. CHAPMAN.

No. 19600.

Kansas City Court of Appeals. Missouri.

January 29, 1940.

Rehearing Denied February 19, 1940.

Appeal from Circuit Court, Jackson County; Paul A. Buzard, Judge.

"Not to be published in State Reports"

Action by Eva Perdue against Lionel J. Chapman to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.

Affirmed.

Geo. E. Kimball and Amos A. Knoop, both of Kansas City, for appellant.

A. R. Wolfe and James R. Sullivan, both of Kansas City, for respondent.

BLAND, Judge.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $1500, and defendant has appealed.

The facts show that plaintiff was injured on October 6, 1936, while riding as a guest in an automobile which was being driven in a southerly direction on a paved public highway in Jackson County. When the automobile reached a point about half a mile south of Raytown it collided with the rear end of a truck loaded with green hay, which had been left parked partially upon the pavement, resulting in the injuries for which she sues.

There is no contention made as to the negligence of the persons who had charge of the truck in question. Defendant is sought to be held for such negligence on the theory that the owner and driver of the truck at the time of the collision, were defendant's servants, defendant seeking to escape liability on the ground, as claimed by him, that he, at the time, occupied the relationship of independent contractor to the owner of the truck and that the driver thereof was the servant of the owner.

The only point raised by the defendant is that his instruction in the nature of a demurrer to the evidence should have been given at the close of all the testimony.

The evidence shows that defendant had purchased 100 acres of alfalfa standing in the field in North Kansas City owned by the North Kansas City Development Company; that he was harvesting the hay and hauling it in trucks to his farm near Lee's Summitt; that the distance between the hay field and the farm was upwards of 20 miles; that defendant was cutting the hay with a harvester owned by him consisting of a motor driven cutter with an elevator attached thereto; that trucks would drive under the elevator, catching the hay as it came therefrom. When the hay on the truck reached the top of the elevator the truck was considered loaded and proceeded on its way to the farm, when another truck would drive under the elevator and the same process was gone through with. Each truck, upon an average, would make two or three trips per day.

One Bradley, who lived in North Kansas City, was the owner of two trucks, which were being used by the defendant in the work. Bradley had in his employ one Buckley, who had worked for him as a truck-driver for many years. Bradley and Buckley had hauled hay for the defendant the year before, Bradley receiving $5.00 per load for hauling the hay at that time.

On the occasion now in question and upon the second day of the harvesting operations, defendant talked to Bradley in the field about hauling hay for the defendant, saying that he had some trucks of his own but he desired to procure additional trucks, large six-wheel trucks or semi-trailers; that he did not know whether he would be able to get them; that defendant did not expect to pay by the load. Bradley testified that defendant told the former he would be in the field the next morning. Bradley appeared at the appointed place with one of his trucks, but defendant was not there. It appears that defendant had been unable to procure any semi-trailers and apparently had so informed his men in charge of the cutter. One of them asked Bradley if he could catch a load of hay and Bradley replied in the affirmative, pulling his truck under the elevator on the cutter. No instructions were given Bradley. Nothing further was said about the matter because Bradley knew what he was to do and where the hay was to be hauled from his experience the year before. Bradley testified that, up to the time he was asked to haul by defendant's employee, he did not know that he was going to haul any hay for the defendant and that he had made no agreement with defendant in regard to it; that he did not know exactly how much defendant would pay him: "I figured on about $1.00 per ton".

When the Chevrolet truck was loaded Bradley turned it over to Buckley to take to defendant's farm. Bradley returned from his trip to the farm with the empty Chevrolet truck for reloading and, about that time, the man in charge of the cutting told Bradley that another truck was needed and Bradley caused Buckley to drive the former's International truck, which was likewise loaded and Buckley started for defendant's farm about 1:30 p. m. with the second load of hay. Bradley loaded the Chevrolet truck and delivered this load to the farm. It was the truck (the International) taking the second load and being driven by Buckley, which was involved in the collision giving rise to this suit.

There were six or seven roads or routes that could have been taken to defendant's farm and when Buckley was about to leave with the first load he was asked by the man running the cutter, if he knew the way and Buckley replied: "Yes, that I knew the way from the year before", and the man replied "follow the same old route if I knew it out there." This was the route that Buckley followed. It appears that defendant, the year before, showed Buckley this same route by driving in front of him from the field in North Kansas City to the farm.

Bradley's trucks and his drivers were handled in the same manner as defendant's trucks and drivers were in respect to the drivers taking their turn at loading under the cutter elevator, hauling, route used, and unloading at the grinder situated at the farm. Defendant assisted at the cutting operation during the day of the accident and drove back and forth from his farm. In his deposition defendant testified that he "just drove over there (to the field) to see how they were getting along. Overseeing the work to some extent." However, he was not at the cutting operations at the time Bradley and Buckley were there. Neither Buckley nor Bradley had anything to do with the loading of the trucks, save that they drove the trucks along under the elevator. One of defendant's employees drove the cutter and another stood on the hay in the truck, loading and tramping it down. Defendant had several men at his farm assisting with the unloading of the hay. The hay was weighed at the farm and the men unloaded it with pitch forks, throwing the hay off the load into the grinder where it was cut up into small portions and blown into the silo where it was processed by adding acid.

Buckley testified that when he got to the farm with the load (the first one): "One of the men got on the truck and helped me pitch it off. We pitched it off in a grinder that they had there and it then went into the silo. Some of the men out there told me where to drive. They told me where to drive up at the side of the cutter." (grinder).

When Buckley reached a point about half a mile south of Raytown, on his second trip, he suffered a flat tire on his truck. He parked the truck to the side of the pavement but partially thereon. He then went back to Raytown, where he procured a tube. Returning with the tube, he found that, on account of the valve being curved it would not fit into the rear wheel, and he returned to Raytown.

In the meantime, Bradley, returning from the farm with his truck, found his International truck parked on the road where it had been left by Buckley. He then drove on to Raytown where he found Buckley putting a new valve stem into the tube the latter had purchased. Bradley bought another tube and he, Buckley and one Edwards, who had accompanied Buckley from North Kansas City, on the second trip, returned to the parked truck. The collision took place between the time Bradley had passed the parked truck and his return to it. It was about dusk when the collision occurred. They found that the truck had been shoved across a ditch. One wheel was imbedded in the bank. The sheriff was at the scene of the collision and told Bradley that he could "take it (the truck) out and I did take it out." Bradley was able to back the truck out on its own power. He then "took the truck up the road into a little alley and drove it into a little side road. It was about fifty or sixty yards." The truck was in such condition that it could not proceed with the load of hay on it. Between the time that the parked truck was stopped and the time Bradley came along, other trucks, hauling hay from the same field passed. The driver on one of these trucks stopped and asked what the trouble was "and he said he was going out to the farm and unload and that he would come back and help us. They were hauling hay just the same as we were in trucks."

One of the operators of the cutting machine, Hartvigsen, testified that he went to the farm, arriving there about four or four-thirty p. m. Hearing that one of the trucks had suffered a flat tire, he, and another of defendant's employees, went to the parked truck, driving in one of defendant's trucks. When they reached the scene of the accident Bradley had procured "permission from the Sheriff to unload. We helped him unload the hay and put it on the truck that we brought from the Chapman farm and then took it on out to the farm. Mr. Chapman drove in at the scene of the accident while I was there. The Sheriff was anxious to clean up the wreck" and Bradley helped in unloading the hay. Hartvigsen was not sent to the scene of the accident by either defendant or his manager.

Defendant had been to his farm and was returning to Kansas City when he came upon the scene of the accident. Hartvigsen drove up with one of defendant's trucks in a few minutes after defendant arrived. Defendant left the scene of the accident and...