Skidmore v. Haggard

• Decision Date: 02 December 1937
• Citation: 110 S.W.2d 726,341 Mo. 837
• Parties: Emory Skidmore, a Minor, by His Next Friend Benjamin H. Skidmore, Appellant, v. Troy Haggard and the Kansas City Star Company, a Corporation
• Court: Missouri Supreme Court

110 S.W.2d 726

341 Mo. 837

Emory Skidmore, a Minor, by His Next Friend Benjamin H. Skidmore, Appellant, v. Troy Haggard and the Kansas City Star Company, a Corporation

Supreme Court of Missouri

December 2, 1937

Appeal from Ray Circuit Court; Hon. Ralph Hughes, Judge.

Affirmed.

W W. Blain, George W. Crowley and Lamm & Barnett for appellant.

The defendant Haggard was a servant and agent of the defendant Kansas City Star Company, and was not an independent contractor. "Whether the relation between the person sought to be charged for an alleged wrong and the immediate actor by whom the alleged wrong was done, was that of master and servant, or proprietor and independent contractor, is frequently a question of fact for the jury, the solution of which depends upon a variety of circumstances." Fink v. Mo. Furnace Co., 10 Mo.App. 65. "It is impossible to lay down a rule by which the status of men working and contracting together can be definitely defined in all cases as employees or independent contractors. Each case must depend on its own facts, and ordinarily no one feature of the relation is determinative, but all must be considered together. Ordinarily the question is one of fact." 31 C J. 473-474. "The general rule is, that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work, 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 sub-contractor, or his servants, committed in the prosecution of said work. An independent contractor is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished." Gayle v. Mo. Car & Foundry Co., 177 Mo. 446; 2 Thompson on Negligence, p. 899, sec. 22. "The rule to be applied to the facts before us thus is stated by the Supreme Court in Gayle v. Mo. Car & Foundry Co., 177 Mo. 427: 'When the facts are undisputed, no doubt exists that the court may declare as a matter of law whether one is an independent contractor or merely a servant as in Long v. Moon, 107 Mo. 334. But where the facts are disputed, the proper course, it seems to us, must be to leave it to the jury under proper instructions to say whether one was an independent contractor or a servant accordingly as the facts are found.' "While the mode of payment and the question as to who is to furnish the materials is not a decisive test by which to determine as to whether the party employed is an independent contractor or an employee, these matters may be taken into consideration with other facts and circumstances throwing light on the question, especially in connection with the matter as to whether the proprietor has control over the person employed (Thompson on Neg., sec. 629, p. 578; Shearman and Redfield on Neg. (6 Ed.), sec. 165, p. 400; 1 Labatt's Master and Servant, sec. 66, p. 233; 16 Amer. & Eng. Encyc. of Law (2 Ed.), pp. 189, 190)." Porter v. Withers Est. Co., 201 Mo.App. 32. In a newspaper delivery case the Supreme Court of Missouri calls attention to the fact that where a newspaper delivery man had been held to be an independent contractor, the delivery man "in driving from one point of delivery to another, he might drive upon any street he chose." Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1012. In accord with the foregoing pronouncements the following cases are among the multitude giving general definitions and tests to distinguish an independent contractor from servant or agent: Maltz Jackoway, etc., Co., 336 Mo. 1000, 82 S.W.2d 916; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 177; Clayton v. Hydraulic, etc., Co., 27 S.W.2d 55; Young v. Sinclair Ref. Co., 92 S.W.2d 999; Speed v. Railroad Co., 71 Mo. 308. A person performing services for another may be an independent contractor as to part of the services but a servant or agent as to another part. Andres v. Cox, 23 S.W.2d 1066, 223 Mo.App. 1139; Speed v. Railroad Co., 71 Mo. 309; Marron v. Bohannan, 104 Conn. 467, 46 A. L. R. 838, 133 A. 667. The conduct of the parties acting under the contract will be taken into consideration. Dagley v. Natl. Cloak & Suit Co., 22 S.W.2d 892, 224 Mo.App. 61; Baker v. Scott County Milling Co., 323 Mo. 1089, 20 S.W.2d 494.

Watson, Ess, Groner, Barnett & Whittaker and Mosman, Rogers, Bell & Buzard for respondents.

(1) The peremptory instruction to find for the Star was properly given. (a) The evidence conclusively established the fact that Haggard was an independent contractor. The contract between Haggard and the Star creates the relation of principal and independent contractor. The intention of the parties to the contract controls its interpretation. Ellis v. Harrison, 104 Mo. 270; St. Louis Union Trust Co. v. MacGovern & Co., 297 Mo. 527, 249 S.W. 68. Mere supervision of the work to see that the contract is complied with does not destroy the relation. McGrath v. St. Louis, 215 Mo. 191, 114 S.W. 611. Jackson v. Butler, 249 Mo. 342, 155 S.W. 1071. Haggard was not subject to the control of the Star in the means or method of the work, but only as to the result and was, therefore, an independent contractor. Fink v. Mo. Furnace Co., 82 Mo. 276; Gall v. Detroit Journal Co., 191 Mich. 405, 158 N.W. 36; Carter Publications v. Davis, 68 S.W.2d 640; Post Publ. Co. v. Schickling, 154 N.E. 751; Tyler v. MacFadden Newspapers Corp., 163 A. 79; Bohanon v. McClatchy Publ. Co., 60 P.2d 510; Zajic v. Johnson, 253 N.W. 77; Oklahoma Publ. Co. v. Greenlee, 300 P. 684; Birmingham Post Co. v. Sturgeon, 149 So. 74; Abate v. Hirdes, 121 So. 775; Bernat v. Star-Chronicle Publ. Co., 84 S.W.2d 429; Manus v. Kansas City Distr. Co., 228 Mo.App. 905, 74 S.W.2d 506; Coul v. Peck D. G. Co., 326 Mo. 870, 32 S.W.2d 758. The period of employment fixed by the contract is not determinative. Rutherford v. Tobin Quarries, 82 S.W.2d 918; Blumb v. City of Kansas, 84 Mo. 112. If Haggard performed any service not specifically required or contemplated by the contract, it did not destroy the relation of independent contractor. Great A. & P. Tea Co. v. Donaldson, 156 So. 859. (b) Haggard was not in the performance of any service for the Star at the time in question. His trip to purchase an inner tube was for his sole benefit. Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Halsey v. Metz, 93 S.W.2d 41; Green v. Western Union Tel. Co., 58 S.W.2d 772; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286. (2) The verdict against Haggard is not inadequate and does not show passion and prejudice on the part of the jury. The exercise of the discretion vested in the trial court in overruling the motion for new trial was not abused. The verdict for the plaintiff is substantial and does not indicate a disregard of plaintiff's rights.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This case, coming to the writer on reassignment, is an action for $ 50,000 damages for personal injuries. The court, at the close of plaintiff's evidence, gave a peremptory instruction to find for defendant Kansas City Star Company. The jury returned a verdict against defendant Troy Haggard for $ 5,000. Plaintiff has appealed from the judgment entered. Plaintiff assigns error, as to the Star, in the direction of the verdict; and, as to Haggard, in the inadequacy of the verdict for the injuries plaintiff sustained.

The Star offered no evidence and it contends that no jury case was made against it because the evidence conclusively shows that the relation of Haggard to it was that of independent contractor. There was an agreement in writing between the parties, and all oral testimony as to the surrounding circumstances, as well as all acts of the parties in connection with the work done, comes from plaintiff's evidence, which was principally the testimony of Haggard himself called as a witness by plaintiff. While the facts and all reasonable inferences therefrom must be considered in the light most favorable to plaintiff's contentions, the relationship must be determined from all of the facts shown by plaintiff, and not from part of them isolated from the rest. [State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W.2d 801.] Since the evidence must be taken as undisputed, the situation here is as stated in Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, namely: "The relationship was that of independent contractor or of employee -- the one or the other -- as dependent upon the facts; and on the record here either is exclusive of the other, and the conclusion to be drawn is one of law."

The relation between the defendants commenced about August 7, 1931. Prior to that time, one Alexander delivered papers published by the Star over a route commencing at the junction of Highways 13 and 40 south of Higginsville where Haggard lived. Alexander wanted to sell the route and Haggard paid him $ 300 for it. Alexander gave him an application to fill out to the Star and went with him to the Star office in Kansas City. They saw the rural circulation manager, who asked Haggard if he knew the route and could take care of it, and if he thought he would like the work. He answered affirmatively and started delivering over Alexander's route upon his return. Alexander had bought this route in June, 1931, from another party. After he purchased it, Haggard made some changes from time to time in order to deliver to persons who purchased from him, and because of road conditions. On September 2, 1931, a written contract was signed by both defendants.

This contract (omitting preliminary clauses) was, as follows:

"The said First Party is the publisher of the...