State ex rel. Chapman v. Shain

• Decision Date: 01 February 1941
• Docket Number: 37039
• Citation: 147 S.W.2d 457,347 Mo. 308
• Parties: State of Missouri at the relation of Lionel J. Chapman, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals, and Eva Perdue
• Court: Missouri Supreme Court

147 S.W.2d 457

347 Mo. 308

State of Missouri at the relation of Lionel J. Chapman, Relator, v. Hopkins B. Shain, Ewing C. Bland and Nick T. Cave, Judges of the Kansas City Court of Appeals, and Eva Perdue

No. 37039

Supreme Court of Missouri

February 1, 1941

Record of Kansas City Court of Appeals quashed.

George E. Kimball, Amos A. Knoop and Walter A. Raymond for relator.

(1) The opinion of the Court of Appeals, in holding that because appellant pointed out the work to Bradley and his servant Buckley, gave them signals calling their services into activity, and gave them directions as to the details of the work of hauling the hay, which was a part of the larger operation of harvesting the hay and cutting and blowing it into the silo, they thereby became the servants of appellant is in conflict with the latest controlling decisions of this court. O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1089. (2) The opinion of the Court of Appeals, in holding that defendant's exercise of the right to direct where his hay was to be hauled and where it was to be delivered destroyed the character of independent contractors of Bradley and his servant Buckley, is in conflict with the latest controlling decisions of this court. Skidmore v Haggard, 341 Mo. 837, 110 S.W.2d 731; Coul v. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758. (3) The opinion of the Court of Appeals, in holding that because defendant required the hay to be hauled expeditiously and on schedule he exercised such control over Bradley and his servant Buckley as to destroy their character of independent contractors and made them defendant's servants, is in direct conflict with the latest controlling decisions of this court. Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Coul v. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758. (4) The holding of the Court of Appeals, that defendant's acts in supervising Bradley and his servant Buckley as to results destroyed their character as independent contractors and made them servants of the defendant, is in conflict with the controlling decisions of this court. Ross v. St. Louis Dairy Co., 339 Mo 982, 98 S.W.2d 723; Kourik v. English, 340 Mo. 367, 100 S.W.2d 904.

Frank Aylward, James R. Sullivan and Arthur R. Wolfe for respondents.

(1) The opinion of the Kansas City Court of Appeals does not hold that because defendant pointed out the work to Bradley and Buckley and gave them directions as to the details of the work of hauling the hay, they thereby became the servants of the defendant. The opinion holds that these facts and all the other facts and circumstances stated in the opinion made the question of agency for the determination of the jury. Clayton v. Wells & Hydraulic Press Brick Co., 324 Mo. 1176, 26 S.W.2d 969; Karguth v. Donk Bros. Coal & Coke Co., 299 Mo. 580, 253 S.W. 367; Maher v. Donk Bros. Coal & Coke Co., 323 Mo. 799, 20 S.W.2d 888; Hoelker v. American Press, 317 Mo. 64, 296 S.W 1008. (2) The opinion of the Court of Appeals does not hold that defendant's acts in which he "exercised the right to direct where his hay was to be hauled and delivered," "required the hay to be hauled expeditiously and on schedule," "supervised Bradley and Buckley as to results," destroyed their character as independent contractors and made them servants of defendant. Respondents' opinion holds that it was the province of the jury to determine, from these acts and all the other facts and inferences which the jury could find from the evidence, whether defendant had the right to control the means used in hauling his hay. Authorities under Point (1).

OPINION

Ellison, J.

Certiorari to the respondent Judges of The Kansas City Court of Appeals bringing up for review their record in Perdue v. Chapman, 137 S.W.2d 483, on the ground of conflict with our decisions. Relator, Chapman, was harvesting a crop of alfalfa hay from a field in North Kansas City and having it trucked to his farm near Lees Summit, a distance of about 20 miles. One of the trucks so engaged belonged to a man named Bradley and was being driven by his employee Buckley. While the latter was transporting a load of alfalfa to the farm a flat tire developed. He left the truck standing partially on the pavement and departed to get a new tube. An automobile in which plaintiff was riding collided with the parked truck, resulting in injury to her.

She sued the relator, Chapman, for damages and recovered a judgment for $ 1500 which respondents affirmed, holding there was sufficient evidence to take the case to the jury on the issue whether the relation of master and servant existed between Chapman on the one hand and Bradley's employee, Buckley, on the other. Relator contends the evidence conclusively showed Bradley was an independent contractor, and that respondents contravened our decisions on similar facts in holding to the contrary. This is the only issue presented. We shall sketch the facts stated in the opinion, but the reader will profit by referring to the full report thereof.

The harvesting operation was large. Relator used his own motor driven cutter with elevator attached to cut and load the hay into trucks which would drive alongside under the elevator until filled and then make way for another, thence proceeding to the farm independently -- that is, not in convoy. On an average each truck made two or three trips per day. Relator used three of his own trucks and did not obtain Bradley's services until the morning of the third day when one truck was secured. The hay was green and would spoil unless it was transported to the farm with dispatch and placed in the silo. That was the understanding with all the loaders and haulers. In the afternoon of that day relator's foreman engaged another truck, the one figuring in the collision.

The evidence as to the contract between relator and Bradley is meager. The latter had conducted a hauling business for some time at a fixed price per job by measure, weight or load, but he had no State permit as a contract hauler. Buckley had been employed by him for many years. Relator first talked to Bradley the second day of the harvesting, stating he wanted more large trucks and did not expect to pay by the load. (Bradley had hauled hay for relator the year before for $ 5 per load.) Bradley said he would be at the field the next morning, but there was no agreement as to pay (he "figured" on about $ 1 per ton) and he did not consider himself under contract. When he appeared at the field with one of his trucks relator was not there, although he had promised to be; but a man in charge of the cutter asked Bradley if he "could catch a load" and the latter answered in the affirmative and went to work. No further instructions were given him because he was familiar with the routine from his experience the year before. After one trip to the farm had been made with that truck relator's foreman asked for the second truck and Bradley had Buckley drive it.

Nothing was said in the conversation between relator and Bradley concerning the former's right to control the details of the latter's operations. After the work was done relator settled with Bradley on the basis of $ 1 per ton. The opinion says: "It may be that the conduct of the parties shows that the defendant (relator) employed Bradley to haul the hay at $ 1 per ton." It also quotes relator's testimony: "I let this contract to Mr. Bradley for hauling the green hay from North Kansas City to Beverly Farms." Bradley operated his own trucks, bought his own tires, gasoline and oil, and made his own repairs. There is no evidence that relator paid for the repair on the punctured tire. The evidence stated in the opinion is also clear that Bradley selected his own employee, Buckley, and substituted the latter for himself in driving the first truck in the morning.

There were six or seven routes to the farm and when Buckley started out in the morning with the first load he was asked by one of the men running the cutter if he knew the way. He answered that he did, from the preceding year, and the man replied "follow the same old route if I knew it out there." The year before the defendant had guided Buckley on his initial trip by driving in front of him over the same road. However, on the day of the collision two of relator's three trucks were seen on another road, which the opinion says, "probably was a partial deviation from the regular route." During that day relator assisted in harvesting the hay and drove back and forth from his farm. He testified in a deposition that he "just drove over there (to the field) to see how they were getting along. Overseeing the work to some extent." While the truck involved in the collision was parked, one of relator's passing trucks stopped and the driver said he would proceed to the farm, unload his hay, and return to give assistance. One of relator's other employees who had heard the truck was stalled, came to the rescue in another truck and helped in transferring the hay thereto, whence it was transported to the farm. He had not been sent by relator or his manager, but relator came to the scene while the employee was there. Relator then went to his farm and directed his manager not to wait "for this load of alfalfa." But he returned to the truck and directed the employee to take the hay to the farm.

As regards the control exercised by relator and his employees over Bradley and Buckley in the loading and unloading operations, the following is stated in the opinion. Relator was not present at the hayfield any time when Bradley and Buckley were there. Neither of them had anything to do with loading the hay, save that they drove their trucks along under the elevator. Both were handled in the same manner as relator's drivers in respect to: taking their turn when the trucks...