Speed v. Atlantic & Pacific R.R. Co.

• Citation: 71 Mo. 303
• Parties: SPEED v. THE ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.
• Decision Date: 31 October 1879
• Court: United States State Supreme Court of Missouri

71 Mo. 303

SPEED

v.THE ATLANTIC & PACIFIC RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

REVERSED.

C. M. Napton for appellant, argued, inter alia, that the relation of master and servant did not exist between the railroad company and Merry, citing Stevens v. Armstrong, 6 N. Y. 435; Wood v. Cobb, 13 Allen (Mass.) 58; Hill v. Morey, 26 Vt. 178; Vanderpool v. Husson, 28 Barb. 196; Cincinnati v. Stone, 5 Ohio St. 38; Samyn v. McClosky, 2 Ohio St. 536; Wood on Master & servant, p. 537, § 281, and note; Ib., p. 508, §§ 304, 306; Ib., p. 585, § 306; Ib., p. 630, § 217; Ib., pp. 619, 620, 626, 629; Eaton v. European R. R. Co., 59 Me. 520; Lucey v. Ingram, 6 M. & W. 392; Bowcher v. Noidstrom, 1 Taunt. 568; Nicholson v. Mounsey, 15 East 384; Charles v. Tayler, 7 C. L. J. 451; Laugher v. Pointer,5 B. & C. 547.

Dryden & Dryden for respondent, as to the existence of the relation of master and servant, cited Cincinnati v Stone, 5 Ohio St. 38; St. Paul v. Seitz, 3 Minn. 297; Schwartz v. Gilmore, 45 Ill. 455; Morgan v. Bowman, 22 Mo. 538; Shear. &. Redf. on Neg., (3 Ed.) §§ 73, 76, 77, 78, 79, 81, 81a, 74; Pack v. Mayor of New York, 8 N. Y. 222; Kellyv. Mayor of New York, 11 N. Y. 435; Barry v. St. Louis, 17 Mo. 121; Robinson v. Webb, 11 Bush 465; Schular v. Hudson River Ry. Co., 38 Barb. 653; Allen v. Willard, 57 Pa. St. 382; Shear. & Redf. on Neg., (3 Ed.) § 74; Brackett v. Lubke, 4 Allen 139; Quarman v. Burnett, 6 Mee. & W. 497; Laugher v. Pointer,5 B. & C. 549; The Halley, 37 L. J. (Adm.) 36; Kelly v. Mayor, 1 Kern. 436; Cuff v. New York Ry. Co., 9 Am. Law Reg. (N. S.) 541; Hobbit v. London & Northwestern Ry. Co., 4 Exch. 253; Horner v. Nicholson, 56 Mo. 220; Dalyell v. Tyrer, El., Bl. & El. 899; Crockett v. Calvert, 8 Ind. 127; Callahan v. R. R. Co., 23 Iowa 564; Annett v. Foster, 1 Daly 502; Abbott on Shipping, (8 London Ed.) 228; Sadler v. Henlock, 4 El. & Bl. 570; Fenton v. Dublin Packet Co., 8 Ad. & El. 835.

HENRY, J.

This was an action by plaintiff to recover damages for personal injuries received by him at the Central Elevator in St. Louis, while engaged in unloading and removing cars of defendant.

1. MASTER AND SERVANT: independent contractor.

It appears that while so engaged, an engine, with loaded grain cars attached, belonging to the defendant, in backing down from the defendant's main track, on a side track which ran into and through the Central Elevator, were impelled against some loaded cars standing on said side track, and these were driven against some empty cars that plaintiff was pushing on said side track, out of the way, after they had been unloaded, and the plaintiff was caught between the bumpers of the two sets of cars, and was badly injured; and, in his petition, alleged that this injury was occasioned by the negligence and carelessness of defendant's employees in managing said first above-mentioned moving train. Plaintiff recovered a judgment in the circuit court, which was affirmed pro forma by the court of appeals, and defendant has appealed from the judgment.

The plaintiff was not in the service of defendant, but was employed by the elevator company. When the accident occurred, there was in force an agreement between the defendant and Charles H. Merry, providing that Merry should take the entire charge and control of the business of loading and unloading freight to and from the cars of defendant at the St. Louis station, and do the necessary switching of freight cars in the yard of defendant, including the making up of all freight trains, and all other yard service necessary in the transaction of the freight business of said company; that he should receive and promptly load all freight, etc., and, without unnecessary delay, unload from the cars all freight into the yards of defendant for that purpose, except live stock and other property of defendant, and safely keep and preserve the same until called for by the consignees; that, when specially requested by defendant, he would unload live stock and freight belonging to defendant, haul all cars loaded with fuel and other property owned by defendant from the levee to said station, and from the station to the levee, when required, and deliver same on such side track at the levee, or in the yard aforesaid, as should be designated by the company, for which he was to be paid fifty cents for each car so hauled, but not to be liable for the value of or charges on same, unless lost or injured through his fault; that said Merry should prepare and execute way bills for all freights leaving said station, and receive all way bills of freight arriving at the same from other stations, should keep all necessary books and accurate accounts of freight shipped and received as aforesaid, make out the expense bills, collect all money due for freight, and pay it over daily, in such manner and to such person as defendant should designate, and act and discharge all the duties of station agent of defendant at the St. Louis station.

By said agreement, all necessary authority and control over the grounds, yards and buildings at said station, including engines and cars, was given to Merry, to enable him properly to discharge his duties under the agreement. Also, defendant was to furnish him three yard and switch engines, if necessary, and keep them in good repair; to employ engineers and firemen sufficient properly to attend said engines, and to furnish all necessary fuel and water for said engines; said engineers and firemen to be under the control of Merry, while on duty in the yards, and to be paid by him for their services. It was also stipulated that defendant should pay to Merry fifteen cents per ton for each ton of two thousand pounds of freight shipped to or from said station; and all payments for services of Merry to be made on or before the tenth day of each month, for the services of the preceding month. The agreement to continue in force for five years from its date, unless sooner annulled, it being expressly agreed that all business to be transacted by said Merry was to be done in a manner satisfactory to the superintendent of defendant, and subject to his control, and defendant to have the right to annul this contract at any time after giving twenty-four hours' notwe of its intention to do so, if the business imposed on said Merry should not be transacted in a manner satisfactory to said superintendent.

Defendant insists that, under this agreement, Merry, and not the defendant, is liable to plaintiff for any injury sustained by him in consequence of any negligence in managing and operating the train which caused the accident; that the employees managing that train were not in the service of defendant, but were the servants of Merry, who exercised an independent employment. There is an irreconcilable conflict in the adjudications on this subject. The general principle is recognized everywhere that one is only liable for damages occasioned by the act of another when he stands in the relation of master to that other. It is an easy matter to state the general principle, but it is often extremely difficult to determine, from the facts in a given case, whether the relation of master and servant exists.

The case at bar is one which, to some extent, presents that difficulty. By the contract between Merry and the railroad company, the whole duty of receiving and forwarding freight over the company's road from St. Louis is imposed upon Merry; but these duties are just such duties as the station agent at that station would perform, or superintend others in the performance of, if no such special agreement had been made; and, by the terms of that contract, Merry was “to act and discharge all the duties of station agent of defendant at the St. Louis station.” Other duties were imposed upon Merry by this contract, which would not, perhaps, appertain to his employment as station agent, and the stipulations in the contract in regard to such other duties, and the provisions with respect to the supply of firemen and engineers by the company, and the payment of Merry and such servants for their services, produce complications rendering it somewhat difficult to ascertain the precise relation in which Merry stood to the company.

The relation of Master and servant does not cease “so long as the master reserves any control or right of control over the method and manner of doing the work, or the agencies by which it is to be effected.” Wood on Mastor and Servant, § 281; City of Cincinnati v. Stone, 5 Ohio St. 41; Schwartz v. Gilmore, 45 Ill. 457. “In order to be held chargeable for the act of another, the person sought to be charged must at least have the right to direct such person's conduct, and to prescribe the mode and...