Simmons v. Murray

• Decision Date: 27 June 1921
• Docket Number: No. 14070.,14070.
• Citation: 209 Mo. App. 248,234 S.W. 1009
• Parties: SIMMONS v. MURRAY et al.
• Court: Missouri Court of Appeals

234 S.W. 1009

209 Mo. App. 248

SIMMONS v. MURRAY et al.

No. 14070.

Kansas City Court of Appeals. Missouri.

June 27, 1921.

On Rehearing December 5. 1921.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by Carl Simmons against W. E. Murray and the Cudahy Packing Company. Judgment for plaintiff against defendant Cudahy Packing Company, and it appeals. Reversed and remanded.

McFadden & Claflin, of Kansas City, Kan., and New, Miller, Camack & Winger, and S. J. McCulloch, all of Kansas City, Mo., for appellant.

Holt & Cubbison and J. K. Cubbison, all of Kansas City, Mo., for respondent.

TRIMBLE, P. J.

Plaintiff, an employee of the defendant Cudahy Packing Company, while being carried to his work in a truck furnished by said defendant, but owned by the defendant Murray, was injured by the negligence of the truck driver, and brought this suit for damages against both the company and the owner of the truck. Defendants each filed separate answers, denying generally and pleading contributory negligence; and, in addition thereto, defendant Murray set up that the driver of the truck was not, at the time and place of the injury, his, Murray's, servant, but was the servant of the Cudahy Packing Company; while the latter, after denying that plaintiff was in its employ at the time and place, set up that, if plaintiff was injured at said time and place, which the company denied, his injuries, if any, were occasioned by the carelessness and negligence of the servant of the defendant Murray, and that Murray was an independent contractor, engaged in the work of transporting to the defendant's place of business such persons as desired to enter the employ of the company and to work for it.

A trial was had, and the jury returned a verdict for plaintiff against the Cudahy Packing Company in the sum of $3,000, but found a verdict in favor of the defendant Murray. Whereupon the Cudahy Packing Company filed motion for new trial, which the court,

after requiring plaintiff to file a remittitur of $1,000, overruled. Thereupon said defendant appealed.

Plaintiff worked for the packing company from some time in 1917 up until he was injured, as thereinafter set forth, which injury occurred between 7 and 8 o'clock on the morning of January 10, 1919. At the time of the injury, a strike of the employees on the Kansas City Street Railway was in progress, and this impeded the packing company's work, because it interfered with the employees' getting to and from the plant. For the purpose of avoiding that interference the company undertook to furnish transportation to the employees by using trucks to carry the employees to and from their work. They were not taken to and from their respective homes, but in the morning the employees would be met at three designated points in the city, and were conveyed from thence to the plant, and in the evening the trucks took them; from the plant to said different points, from whence they would go to their respective homes. One of these points, at which employees would in the Morning be afforded an opportunity for such transportation, was at Fifteenth and Walnut strets. In the evening the employees would be told where they could find a truck the next morning. And the evening before the injury plaintiff was told to be at Fifteenth and Walnut the next morning, and a truck would be there for him.

The next morning the truck on which plaintiff was injured was standing at the northeast corner of said street intersection, and was facing north. The truck was one having a bed which flared out at the top, and on each side of the truck there were seats improvised, running lengthwise. When plaintiff arrived at the truck it was practically filled with employees, there being only room for one more person on the rear end of the seat on the east side, and plaintiff climbed over the end gate at the rear, and wan in the act of sitting down when the driver backed the truck. He did this in order to turn around and go south over a near route to the plant. Plaintiff, in taking his seat, had to take hold of the top of the end of the bed with his hand, there being nothing else to hold to, in order to obtain his position and balance on the seat. The truck was standing still when he thus took hold of the bed, but immediately thereafter, and while he was in the act of seating himself, the truck; backed, as before stated, going only two or three feet when it struck against an iron trolley post at the curb, catching plaintiff's index finger between the post and bed and mashing it so nearly off that it had to be amputated.

Appellant's first contention is that Murray was an independent contractor, and hence that the driver of the truck was not its servant, but was Murray's. In order that the situation and relations existing between the said parties may fully appear, we here set forth the evidence bearing upon this question of whose servant the driver was.

Defendant packing company, during the strike on the street railway, was using five of its own trucks—all it could spare from its packing business—in conveying its employees to and from its plant, but, not having enough trucks which could be devoted to that purpose, it telephoned to Murray, and said they "wanted to engage trucks for hauling their employees." Murray told defendant that he usually sent two men with a truck, but defendant said it wanted only a driver with each truck. Murray thereupon told defendant his price for a truck and one man was $3 an hour, and defendant company told Murray to send the trucks to them, and he sent three trucks, each with a driver. He testified that he "just ordered the trucks to their (the Cudahy) plant," and had nothing to do with the trucks after that. During the time they were employed and used by the packing company they were not used by Murray, but were at the service of the packing company. Murray did not know where the trucks were to go, that is, the streets they were to travel on, nor the points they were to go to, though he did know the purpose for which they were desired.

The driver of the truck testified that all the instruction he got from Murray was to report at Cudahy's plant, and that he would get instructions from them. When he got to the plant he was told the company wanted employees hauled back and forth; that at the designated points in the city to and from which the employees would be hauled, they, "the Cudahy people," would have a man to see that it was Cudahy men, and not other fellows, loaded on the truck, and that in case of accident he was to report to them, the Cudahy Company; that in the evening when he would start out from the plant with a load a man there at the plant would tell him to return, and 12 they had any more to haul he would tell him where to take them, and, finally, when there were no more to haul, he was told to be at a certain point next morning to bring whoever of the employees were there to the plant; that at the plant there were big stationary steps, provided by the Cudahy Packing Company, to which the trucks backed up for the purpose of enabling the employees to board them, and the Cudahy Packing Company also provided certain steps to go with each truck for loading and unloading purposes at the designated points aforesaid ; that in the evening at the plant, when the employees were being loaded into the trucks, a man was there directing the loading, telling the employees which truck to get into in order to go to the point nearest their homes; that when the truck was loaded, this man would say to the driver to "take this load of people" to a certain one of said points, and would tell him the better way to get to that point; that in the morning, at the loading point, there was a man in charge of the loading, but not the same man every time; that the driver did nothing but drive, and the man in charge of the loading took care of the truck steps by putting them into the truck after it had obtained its load; that on the morning of the accident the man who supervised the loading and gave him the signal to start was a man whom he had seen at the plant, directing the loading there.

The truck was one used in a general trucking business, but when it was devoted to hauling men and women back and forth, the Cudahy Packing Company put seats in it, long benches extending lengthwise of the truck, one on each side. The defendant also put a banner on each side of the truck over Murray's name thereon, said banner having on it in large letters "Cudahy Employees." As heretofore stated, defendant paid Murray $3 per hour for the truck and driver, and the driver's salary was paid by Murray.

The defendant's evidence denied that 12 told Murray it would have a man to attend to the loading and unloading, and denied that it had any control over Murray's drivers. Its evidence admits that the assistant foreman, Higgins (and when he was not there Mr. Reidy acted in his place), was at the plant in the evenings overseeing the loading of the trucks, but it contends that all they did was to tell the employees where the different trucks were going; that they did not issue any directions to the drivers, except to tell them to what points they should take their loads from the plant, but not as how they should operate them or the route they should take. As to the loading of the employees in the evening at the plant, the assistant superintendent said, "Of course, we handled that at the plant." But it was denied that any one with authority from the company had charge of loading the trucks in the morning at the points designated by the company the might before, to the employees as to where they would find a truck for their accommodation. The assistant foreman said that on several occasions he had told the drivers to make reports to the plant of all accidents, and "to be careful—always to be careful driving out there, on account of the people—not as to loading people on the trucks, of course we handled that...