Stein v. Battenfeld Oil & Grease Co.

Decision Date21 May 1931
Docket Number28562
Citation39 S.W.2d 345,327 Mo. 804
PartiesWilma L. Stein, Appellant, v. Battenfield Oil & Grease Company
CourtMissouri Supreme Court

Rehearing Overruled May 21, 1931.

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge; Opinion filed at October Term. 1930, March 31, 1931 motion for rehearing overruled at April Term, May 21, 1931.


J. C. James and Cowgill & Popham for appellant.

(1) Decedent was "employed" in the general service of respondent and subject to its orders and was engaged in performing his "ordinary duties" in its establishment, and was within Sec. 6786, R. S. 1919. Standard Oil Co. v. Anderson, 212 U.S. 215; Simons v. Murray, 234 S.W. 1009; Karguth v. Coal Co., 253 S.W. 367; Poppen v. Wagner El. Co., 2 S.W.2d 199; Cole v. Lead Co., 144 S.W. 855; Guidice v. Mfg. Co., 8 S.W.2d 964; Simmons v. Mfg. Co., 298 Mo. 70; Albrecht v. Belting Co., 252 S.W. 400; Bishop v. Planing Works, 3 S.W.2d 256; Webster's New International Dictionary, "Employed;" Black's Law Dictionary (2 Ed.) "Employed;" 2 Words and Phrases (2 Series) "Employed;" United States v. Morris, 39 U.S. 463, "Employed;" Steel Co. v. Ins. Co., 136 N.Y.S. 977, "Employed;" Tomlinson v. Marshall, 236 S.W. 680. (2) The unguarded belting was so placed as to be dangerous to decedent in performing his ordinary duties and was guardable. (3) No defense of independent contractor is pleaded. Relation of master and servant is conceded by a plea of assumed risk. The answer admits decedent fell upon the power belt. These admissions are conclusively binding on respondent. Wrench v. Robertson, 175 S.W. 590. (4) The petition alleges both statutory and common-law negligence, and both are utilizable under the common-law branch of the case, under which respondent is liable regardless of whether decedent was within the statute. Lenz v. Seibert, 259 S.W. 829; Adams v. Thayer, 6 S.W.2d 630; Kuhn v. Lusk, 219 S.W. 638. (5) Even if decedent were concededly an independent contractor, respondent would still be under the legal duty of exercising ordinary care to prevent injury to him and the cause would be submissible to a jury. Donovan v. Gay, 11 S.W. 44; Flori v. Dolph, 192 S.W. 949. (6) Decedent was on the premises at the request of and upon the business of respondent, and regardless of classification, or if he should merely be referred to as an invitee, still respondent owed him the duty of using ordinary care to prevent injury to him, and the case would be submissible to a jury. Cooley on Torts (2 Ed.) 718; Watson v. Mining Co., 5 S.W.2d 122; Hollis v. Merchants Assn., 205 Mo. 508; Buswell on Personal Injuries, 521.

McCune, Caldwell & Downing for respondent.

(1) Recovery was sought under the provisions of Sec. 6786, R. S. 1919. As that act does not apply to the facts herein, appellant failed to make a case for the jury. (a) The testimony of appellant proved beyond any question that deceased was an independent contractor, in business for himself, doing the particular job in question according to his own methods and accountable to respondent only for the result. Gayle v. Car & Foundry Co., 177 Mo. 427; Kipp v. Oyster, 133 Mo.App. 711; Long v. Moon, 107 Mo. 334; McGrath v. St. Louis, 215 Mo. 191; Fink v. Furnace Co., 82 Mo. 276; Weise v. Remme, 140 Mo. 289; Standard Oil Co. v. Anderson, 212 U.S. 214, 53 L.Ed. 480. (b) Sec. 6786, R. S. 1919, and the act of which it is a part, apply only to employees in regular and continual service, and not to independent contractors. Glaser v. Rothschild, 221 Mo. 180, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; Behre v. Hemp & Co., 191 S.W. 1038; Simpson v. Iron Works Co., 249 Mo. 376; Cole v. Lead Co., 240 Mo. 397; St. Louis & S. F. Railroad v. Conarty, 238 U.S. 243, 59 L.Ed. 1290; Mansfield v. Electric & Manufacturing Co., 294 Mo. 235, 242 S.W. 400; Louisville Ry. Co. v. Wilson, 138 U.S. 501, 34 L.Ed. 1023; Vane v. Newcomb & Smith, 132 U.S. 220, 33 L.Ed. 310; Robinson v. Railroad Co., 237 U.S. 84, 59 L.Ed. 849. (c) There is no merit whatever in the contention that respondent conceded the relationship of master and servant by the plea of assumption of risk set forth in its answer, as it denied that relationship by its general denial in a separate paragraph. Secs. 1232, 1233, R. S. 1919; Adair v. Terminal Ry. Co., 282 Mo. 133, 220 S.W. 920. (2) Appellant is not entitled to recover on account of alleged common-law negligence, as no such negligence was either pleaded or proved. Latapie-Vignaux v. Saddlery Co., 192 Mo. 1; Cole v. Lead Co., 240 Mo. 397; Lohmeyer v. Cordage Co., 214 Mo. 685; Huss v. Bakery Co., 210 Mo. 44; Lore v. Mfg. Co., 160 Mo. 608; Czernicke v. Ehrlich, 212 Mo. 386; Bair v. Heibel, 103 Mo.App. 621; Huskey v. Boiler Co., 187 Mo.App. 438, 173 S.W. 16. (3) Appellant's contention that she is entitled to recover is founded entirely upon the assumption that the motor and belt were not guarded. As any presumption of fact to that effect was disproved in plaintiff's case she failed to make a case for the jury for that further reason alone. Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Mockowik v. Railroad, 196 Mo. 550; Vallery v. Building Material Co., 211 S.W. 95; Glassman v. Henry, 182 Mo.App. 304; State ex rel. Automobile Co. v. Daues, 19 S.W.2d 700. (4) Regardless of all other facts and circumstances the deceased was guilty of gross contributory negligence, barring a recovery by appellant as a matter of law. Spiva v. Coal & Mining Co., 88 Mo. 68; Bonanomi v. Purcell, 287 Mo. 436, 230 S.W. 120; Smith v. Water Mills Co., 215 Mo.App. 129, 238 S.W. 573; Morris v. Light & Power Co., 302 Mo. 475, 258 S.W. 431; Hunter v. Candy Co., 307 Mo. 656, 271 S.W. 800; Smith v. Box Co., 193 Mo. 715, 92 S.W. 394; Dressie v. Railroad, 145 Mo.App. 163; Williams v. Ice & Cold Storage Co., 214 S.W. 385; Rosser v. Fayette, 235 S.W. 153.

Ellison, C. Seddon and Ferguson, CC., concur.


Action for $ 10,000 damages for the death of plaintiff's husband, occasioned by the alleged negligence of the defendant. From a judgment overruling plaintiff's motion to set aside her involuntary nonsuit, taken with leave, she has appealed. The deceased was engaged in repairing and replacing certain electric apparatus in the respondent's manufacturing plant when he became entangled in a belt running from an electric motor, with resultant fatal injury.

The petition charged the belt was unguarded, in violation of Section 13222, Revised Statutes 1929, and there is substantial evidence of the fact. Appellant contends the pleading also assigned common-law negligence as a ground of recovery. The answer was a general denial, coupled with pleas of contributory negligence and assumed risk. As regards the statute, respondent asserts the evidence conclusively showed the deceased did not come within its terms and protection, because he was an independent contractor and not a person "employed" at the plant and "engaged in (his) ordinary duties." With respect to the common-law negligence the contention is that the deceased was an invitee and assumed the risk of known dangers or was guilty of contributory negligence as a matter of law.

The deceased was thirty-eight years old and an expert electrician of twenty years' experience. He was in business for himself. He originally installed the motor which figures in this case. His work included the wiring of houses, buildings, hotels, and electrical work generally. He usually had a number of jobs on hand, and on the day of his injury had other work besides that of respondent. He furnished his own tools and materials and worked at his own pleasure and at his own hours. He had regular printed statement forms, which bore the heading: "In account with Oscar F. Stein, Electrical Construction and Repairs (telephone and street numbers). All bills due and payable when the work is completed." He used these in rendering statements to respondent and other customers for work done and materials furnished. For his time he charged $ 1.25 per hour, and his monthly earnings were from $ 250 to $ 300.

He was paid by check on each bill rendered respondent. This form of payment was not used by respondent in paying the wages of the workers in the plant generally. The deceased had been doing jobs of electrical work for respondent off and on for four or five years. Indeed, it seems he was called to do all the work respondent had in his line. Sometimes he came for an hour, sometimes for a day and a half, and there would be intervals of four or five months between jobs. He did not work at any certain time, but came and went as he pleased. The regular employees started work at seven o'clock A. M. and worked until five-thirty P. M. There was no evidence whatever that respondent retained or attempted to exercise any power of control over his work; and witness Law, testifying for appellant, said that he had never heard any officers of respondent give Stein any instructions of any nature about how to do the work.

On February 14, 1924, Stein came to the respondent's plant and commenced to run a conduit pipe along the east wall of a large room on the first floor to a switch box in the southeast corner of the room. The room was about 100 feet by seventy-five feet, and a number of men were working therein. The switch box was fastened against the east wall about eight feet above the floor and served the electric motor already mentioned, which stood opposite the switch box about three and a half feet from the east wall. The motor was about three and one-half feet high, and the belt ran from a pulley thereon upward and northward to shafting near the ceiling. There was evidence that the motor and belt were guarded, but, as stated, also evidence tending to the contrary.

Immediately before the accident Stein was (so Mr. Law testified)...

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