Semper v. The American Press

• Citation: 273 S.W. 186,217 Mo.App. 55
• Parties: AUGUST F. SEMPER, Respondent, v. THE AMERICAN PRESS, Appellant.
• Decision Date: 02 June 1925
• Court: Missouri Court of Appeals

273 S.W. 186

217 Mo.App. 55

AUGUST F. SEMPER, Respondent, v. THE AMERICAN PRESS, Appellant.

Court of Appeals of Missouri, St. Louis

June 2, 1925

Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Miller, Judge.

AFFIRMED.

Judgment affirmed.

Buder & Buder for appellant.

(1) One who has contracted with a competent and fit person exercising an independent employment, to perform certain work for him, not in itself unlawful or attended with danger to others, according to the contractor's own methods and without his being subject to control, except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractor or his servants, committed in the prosecution of such work. McGrath v. St Louis, 215 Mo. 191; Crenshaw v. Ullman, 113 Mo. 633; Fink v. The Missouri Furnace Co., 82 Mo. 276; Mound City Paint and Color Co. v. Conlon, 92 Mo. 221; O'Hara v. Laclede Gas Light Co., 244 Mo. 395; Thomassen v. West St. Louis Water & Light Co., 251 S.W. 450; Kipp v. Oyster, 133 Mo.App. 711; Gall v. Detroit Journal Co., 191 Mich. 405; Morgan v. Smith, 159 Mass. 570; Corbin v. The American Mills, 27 Conn. 274; Wood v. Cobb et al., 13 Allen 58; Casement v. Brown, 148 U.S. 615. (2) One who voluntarily assists a servant at the latter's request does not, as a general rule, become a servant of the master so as to impose upon the latter the duties and liabilities of a master towards such volunteer, or so as to render the master liable to third persons injured by such volunteer's acts or negligence while rendering such assistance. Moll on Independent Contractors, page 12, sec. 9; 26 Cyc. 1085, Master & Servant; Chaney v. L. & M. R. Ry. Co., 176 Mo. 598; Mangan v. Foley, 33 Mo.App. 250; Thyssen v. Davenport Ice etc., Co., 134 Iowa 749; White v. J. E. Levi & Co., 137 Ga. 269. (3) An instruction submitting a cause to the jury must not be broader than the proof and the pleadings, and must be within both. An instruction which submits an issue to the jury, which issue is pleaded though not proven, is erroneous. Ostopshook v. Cohen-Schwartz Rail & Steel Co., 227 S.W. 642; Riley v. Independence, 258 Mo. 671; Sparkman v. Wabash Railroad, 191 Mo.App. 463; McDonald v. Railroad, 165 Mo.App. 75; McElvain v. Dorroh, 204 S.W. 824; State ex rel. v. Ellison, 270 Mo. 645; Lorton v. Trail, 216 S.W. 54. (4) An instruction which fails to limit the damages recoverable to the amount sued for in the petition is erroneous. Spohn v. Mo. Pacific Ry. Co., 116 Mo. 617; Smoot v. Kansas City, 194 Mo. 513; Fink v. United Railways, 219 S.W. 679; Finley v. United Railways, 238 Mo. 6; Tyon v. Wabash Ry. Co., 207 Mo.App. 322; Walters v. United Railways, 165 Mo.App. 628; Haake v. Milling Co., 168 Mo.App. 177; Radtke v. Basket & Box Co., 229 Mo. 1, 18, 19, 20; Tinkle v. Railroad, 212 Mo. 445. (5) The verdict and judgment are excessive. Mitchell v. United Railways Co., 125 Mo.App. 1; Goetz v. Ambs, 22 Mo. 170; Dixon v. Scott, 74 Ill.App. 277; Central Texas & N.W. Ry. Co. v. Gibson, 35 Tex. Civ. App. 66; Hoxsey v. St. Louis & S. R. Co., 184 Ill.App. 410; Young v. Bacon, 183 S.W. 1079. (6) An instruction which submits a hypothesis not supported by the evidence as a predicate of liability is erroneous. McDonald v. Railroad, 165 Mo.App. 75. (7) Where plaintiff alleges the specific acts of negligence causing the injury he is required to prove those specific acts and cannot rely on the doctrine of res ipsa loquitur. This is a rule of long standing in this State. Reid v. Schaff, 210 S.W. 85; Hennekes v. Beetz, 203 Mo.App. 63; Byers v. Essex Inv. Co., 281 Mo. 375; Motsch v. Standard Oil Company of Indiana, 223 S.W. 677; Boeckmann v. Valier & Spies Milling Co., 199 S.W. 457; West v. Holladay, 196 S.W. 403; Roscoe v. Met. Street Ry. Co., 202 Mo. 576; Riley v. Independence, 258 Mo. 671.

Harry F. Russell and Marsalek & Stahlhuth for respondent.

(1) In passing upon the demurrer to the evidence it is the duty of the court to accept as true all evidence in favor of plaintiff and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom, and the court cannot draw inferences in favor of defendant to counterbalance or overthrow inference in plaintiff's favor. Knapp v. Hanley, 108 Mo.App. 360; Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gas Light Co., 73 Mo. 219. The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom, considered in the light of the foregoing rule, show conclusively that plaintiff has no case. Scherer v. Bryant, 273 Mo. 602; Gratiot v. R. R., 116 Mo. 466; Steffens v. Fisher, 161 Mo.App. 386. (2) Under the circumstances shown by this record plaintiff is not bound by all the statements of the witness Bresler, even though he was called by plaintiff. Black v. Epstein, 221 Mo. 304; McLean v. Clark, 31 F. 501. (3) The court could not properly take the case from the jury on the theory that Bresler was an independent contractor. Under the evidence and the reasonable inferences in plaintiff's favor therefrom, there was ample opportunity for reasonable minds to differ on the question. The proposition was properly submitted to the jury. Tomlinson v. Marshall, 208 Mo.App. 381; Gayle v. Mo. C. & F. Co., 177 Mo. 427; Fitzgerald v. Cardwell, 226 S.W. 971; O'Hara v. Gas Co., 244 Mo. 409; Mullich v. Brocker, 119 Mo.App. 332; Borah v. Motor Co., 257 S.W. 145; O'Neill v. Blase, 94 Mo.App. 648; Porter v. Withers' Estate, 201 Mo.App. 27; Alexander v. Pub. Co., 197 Mo.App. 601; Scherer v. Bryant, 273 Mo. 596; Sandifer v. Lynn, 52 Mo.App. 553. (4) Where for any reason the evidence to prove a fact is chiefly if not entirely within the control of an adverse party the burden of proof, meaning the burden of evidence, is on the party who knows or has special opportunity for knowing the fact. Schneider v. Maney, 242 Mo. 43. "Slight circumstances are sufficient to establish a fact where the defendant is peculiarly possessed with power to disprove it and fails to adduce such evidence." Davenport v. Elec. Co., 242 Mo. 122. The burden of proving that Bresler was an independent contractor is upon the defendant. Knoche v. Pratt, 194 Mo.App. 304, 5. (5) The master is not absolved from liability because the negligence of a third party concurs with the negligence of a servant in producing an injury. Harrison v. Elec. Co., 195 Mo. 623. Where a servant permits a volunteer to perform a simple manual act of the employment, in the presence and with the assent of the servant, the act of the volunteer is regarded as the servant's act, and the master may be held liable therefor. James v. Muehlbach, 34 Mo.App. 512; Blumenfeld v. Grocer Co., 206 Mo.App. 509. (6) Plaintiff's instruction No. 1 was not improper because it failed to have the jury find that both Bresler and Schrell were defendant's servants. It was not requisite that plaintiff have the jury find all the allegations of the petition, but only sufficient to make a case. State ex rel. v. Ellison, 223 S.W. 671; Foster v. Railroad, 115 Mo. 165, 181; Corby v. Tel. Co., 231 Mo. 428. (7) The damages awarded were not excessive. Steigleder v. Lonsdale, 253 S.W. 487; Lattimore v. E. L. & P. Co., 128 Mo.App. 37; Frazier v. Smelting Co., 150 Mo.App. 419; Quinley v. Traction Co., 180 Mo.App. 287. (8) It was within the court's discretion to permit plaintiff to cross-examine the witness Bresler, and there was no showing that this discretion was abused. Dauber v. Josephson, 237 S.W. 153.

SUTTON, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.--

This is a personal injury case. Plaintiff sues to recover damages for injuries to his left eye alleged to have been inflicted by the defendant through its servants and agents. The cause was tried to a jury, there was a verdict and judgment in favor of plaintiff for $ 1500, and the defendant appeals.

The accident in which plaintiff received the injuries for which he sues occurred at the northwest corner of Fifteenth and Market streets, in the city of St. Louis, late in the afternoon, on September 15, 1921. The defendant, a Missouri corporation, was engaged in the business of publishing and distributing a newspaper known as the St. Louis Times. Its plant was located at Broadway and Chestnut street in said city. One George D. Bresler delivered the base-ball edition of the Times to dealers for defendant on what was known as the Manchester run. Bresler used a Ford touring car in making these deliveries. The papers were wrapped in bundles at defendant's plant and labels were placed on the bundles showing where and to whom the bundles were to be delivered. Bresler sometimes permitted a boy by the name of Schrell to assist him in delivering the papers. Schrell was assisting in the deliveries at the time of the accident. Bresler drove the automobile, and Schrell rode in the back seat and threw the bundles from the automobile at the places of delivery. The northwest corner of Fifteenth and Market was on the Manchester run, and Bresler was required to deliver a bundle of papers at that place for a dealer by the name of Samuels. At the time of his injury the plaintiff was standing on the sidewalk at the northwest corner of Fifteenth and Market. Bresler in making his deliveries drove westward on Market street, and as he passed the northwest corner of Fifteenth and Market Schrell threw a bundle of papers from the automobile and struck the plaintiff with it in the left eye, inflicting the injuries for which he sues.

Plaintiff testified: "I was walking west along Market street and stopped for a moment to wipe my forehead, and the next thing I thought lightning struck me. I didn't know what happened. I felt like all the light had gone out of me. It was a sudden shock. I didn't know what in the world was going...