Smith v. Brown
| Decision Date | 07 December 1940 |
| Docket Number | 34940. |
| Parties | SMITH v. BROWN et al. |
| Court | Kansas Supreme Court |
Rehearing Denied Feb. 3, 1941.
Syllabus by the Court.
Where garage mechanic was employed to overhaul tractor belonging to construction contractors, and after work was completed one of contractors told mechanic that he would send a truck for tractor and requested mechanic to load tractor on truck and to go with truck and unload tractor at point of delivery mechanic was not a "servant" of contractors within Workmen's Compensation Act, but was an "independent contractor", and hence could not recover compensation for injuries sustained when unloading tractor. Gen.St.1935 44-501 et seq.
Generally when a person lets out work to another, the contractee reserving no control over work or workmen, a "contractor and contractee relationship" exists, and not a "master and servant relationship", and the contractee is not liable for negligence or improper execution of the work by contractor.
Where garage mechanic was employed to overhaul tractor belonging to construction contractors, and after work was completed one of contractors told mechanic that he would send a truck for tractor and requested mechanic to load tractor on truck and to go with truck and unload tractor at point of delivery, a "contractor and contractee relationship" existed and not a "master and servant relationship", and hence construction contractors were not liable for negligence of mechanic or his employees.
Where garage mechanic was employed to overhaul tractor belonging to construction contractors, and after work was completed one of contractors told mechanic that he would send a truck for tractor and requested mechanic to load tractor on truck and to go with truck and unload tractor at point of delivery, driver of truck sent for tractor, during operation of loading and unloading tractor, was servant of mechanic and not of contractors, and hence mechanic could not recover for injuries sustained in unloading of tractor, even if injuries were sustained through negligent conduct of truck driver.
Where garage mechanic was employed to overhaul tractor belonging to construction contractors, and after work was completed one of contractors told mechanic that he would send a truck for tractor and requested mechanic to load tractor on truck and to go with truck and unload tractor at point of delivery, evidence failed to show that injuries sustained by mechanic in unloading tractor were caused by negligent conduct of driver of truck sent for tractor.
In an action for damages for personal injuries, the record is examined and held the demurrer of the defendants to plaintiff's evidence was properly sustained.
Appeal from District Court, Wyandotte County, Division No. 3; Harvey J. Emerson, Judge.
Action by Edward A. Smith against Robert Brown and others, partners doing business under the firm name of Brown Brothers, for personal injuries sustained by plaintiff while unloading defendants' tractor from truck. From a judgment sustaining demurrer to plaintiff's evidence, the plaintiff appeals. "independent contractor", and hence could not recover compensation for injuries sustained when unloading tractor. Gen.St.1935, 44-501 et seq.
A. J. Herrod, of Kansas City, for appellant.
William E. Carson and Willard L. Phillips, both of Kansas City, for appellees.
The appeal is from an order of the trial court sustaining a demurrer to plaintiff's evidence.
For many years the plaintiff Smith conducted an auto repair shop in Kansas City. The defendants were partners engaged in construction work. They owned tractors which were used in their business, and plaintiff had repaired and overhauled their tractors for several years.
In December, 1937, plaintiff entered into an oral agreement with defendants to overhaul and repair a tractor. Plaintiff was to receive 75 cents per hour while working on the tractor,--defendants to pay for necessary parts. The tractor remained in plaintiff's shop from December, 1937, until February 11, 1938. On the later date plaintiff notified defendants the work was done and the tractor ready for delivery. One of the defendants, Robert Brown, came to plaintiff's shop, paid him for the work and materials, and stated he would send a truck for the tractor. Brown requested the plaintiff to load the tractor on the truck, and to go with the truck and unload the tractor at the point of delivery. On the same day one Welch, an employee of the defendants, drove a truck to plaintiff's shop for the tractor.
The truck weighed 3,800 pounds, it had a flat bed ten feet long, seven feet and eight inches wide, no cab, and the seat was a board on the top of the gas tank. A 2 by 10 sideboard was on each side of the bed and held upright by 2 by 4 stakes. The bed was three feet, eight inches from the ground. The truck had dual rear wheels, each rear tire being six and one half inches wide, making a total tread of thirteen inches on each pair of rear wheels. Inside the rear wheels were brake drums with a diameter of fifteen inches.
The tractor was a Caterpillar tractor weighing 7,700 pounds, seven feet long and four feet, six inches wide.
When the truck arrived at plaintiff's garage he placed on the bed two 3 by 12 planks or skids so that the lugs of the tractor would not damage the bed of the truck. When placed, the skids extended out about ten inches beyond the rear end of the truck.
After the skids were placed on the truck, plaintiff ordered Welch to drive it to a point about a block and a half from the garage, where there was a bank about the same height as the bed of the truck, in order that the tractor might be loaded from that point. Plaintiff drove the tractor to the...
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