Talley v. Bowen Const. Co., 48100

• Decision Date: 14 November 1960
• Docket Number: No. 48100,No. 2,48100,2
• Citation: 340 S.W.2d 701
• Parties: Gladys TALLEY, Appellant, v. BOWEN CONSTRUCTION COMPANY, Respondent
• Court: Missouri Supreme Court

Page 701

340 S.W.2d 701

Gladys TALLEY, Appellant, v.BOWEN CONSTRUCTION COMPANY, Respondent.

No. 48100.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1960.

Rehearing Denied Dec. 12, 1960.

Robert B. Wurdack and Commodore McFarland Combs, Jr., Combs & Denney, Kansas City, for appellant.

Gene C. Morris, Reed O. Gentry, Kansas City, for respondent, Bowen Const. Co.; Rogers, Field, Gentry & Jackson, Kansas City, of counsel.

EAGER, Judge.

This action is one for damages for personal injuries sustained on September 25, 1957, when a truck collided with a car in which plaintiff was a passenger.The truck was driven by one George Figous, but was owned by P. O. White.The sole question brought here is whether Figous was at the time acting as an agent and employee of Bowen Construction Company, the respondent.The trial court directed a verdict for it and the jury found for Figous, the other defendant.Plaintiff's motion for a new trial as to Figous was sustained on the ground that the verdict for him was against the weight of the evidence.Plaintiff then dismissed without prejudice as to Figous, and appealed from the remaining judgment which had been directed for Bowen Construction Company.The appeal is here on a partial and agreed transcript.

Bowen Construction Company(hereafter referred to as Bowen), is a Missouri corporation; at the time in question it had a plant at 32nd and Fairmount in Kansas City, Missouri.Apparently it was in the paving business, but in any event it prepared and sent out in trucks from that plant hot asphalt for use on paving jobs.It seems to be conceded that Figous, returning to this plant after delivering a load of asphalt to a paving job at Truman Corners (Highway 71 and Blue Ridge Road) and traveling west on 31st Street, turned left into Fairmount in front of the car traveling east on 31st Street in which plaintiff was riding.His negligence in so doing was both asserted and disputed.It was also conceded that the truck in question was owned by White who had made arrangements with Bowen for its use by Bowen, to the extent hereinafter related, on a ton-mileage basis; that White was paid for such use by Bowen and, after deducting the expenses, he split the balance with Figous, the driver.White was a regular driver of one of the companyowned trucks, but for this he was paid by entirely separate checks.

Plaintiff produced as her witness, Clemence J. Wulff, who was and had been for some years the truck dispatcher and phoneradio operator of Bowen.From his uncontradicted evidence the following facts appeared.Bowen, at the time, employed 7-9 regular drivers of company-owned trucks.These men were paid wages on an hourly basis, their work was supervised, their hours were regulated, and they made as many trips in a day as they could.White was one of these.When the volume of work required it, Bowen also used the services of extra trucks and drivers, as stated subsequently.Wulff weighed out the loads on all the trucks at the scales, and gave all the drivers tickets showing the type of material, its weight, the name of the driver, and the name and address of the consignee.He wrote these tickets himself.Those given to the extra drivers were prepared in three duplicate copies; two were delivered to 'the fellow at the other end,' and one was retained as evidence for payment.Wulff did not hire regular drivers; he kept himself informed each day as to the immediate needs for material, and he could and did give loads to extra drivers when necessary.These men simply came to the yard in their trucks and waited in line to see if they could get a load.If he had nothing for them he told them so, but he sometimes told them they could 'stick around' if they wanted to, that there might be something later; that in such event the driver might stay awhile or leave.If Wulff had a load of asphalt for one of these men, the truck would be driven to the hopper operated by company employees, and when loaded there it would be weighed out by Wulff at the scales.Wulff 'couldn't say' whether he kept a list of extra drivers, but he did testify that the 'oldest men came first,' and that, as a general practice, they gave preference to drivers who had hauled before.At that time they were probably using four extra drivers besides Figous.Wulff could refuse a load to any extra driver and he could tell one who was unsatisfactory not to come back, though he had never done the latter.When he gave a load to an extra driver the arrangement was merely for 'one particular load,' nor for a day's work; the driver was not required to come back after he delivered that load, nor was he told to return, and whether he did or not was up to him; if he did return he was merely looking or hoping for another load.The extra drivers could show up or not, as they pleased, they could quit or leave at any time, they had no regular hours and no fixed lunch time; they did not 'report' to anyone, at the yard or at the place of delivery, though some employee might show them where to dump the loads.Wulff did not direct the route to be traveled, and the driver could use any route he pleased; if an extra driver did not know the way, Wulff might try to tell him the best route.The extra drivers did not use the company gasoline pumps, nor were their trucks serviced or repaired by company employees or at company expense.Diesel oil was kept available for use on the truck beds to keep the asphalt from sticking, but Wulff testified that the use of this oil was 'up to the drivers' themselves.It might be inferred that this oil was generally so used.Figous was given no instructions except the tickets.Bowen kept no time records on these extra trucks or drivers, and its only record of the work done by them consisted of the tickets; the drivers turned in their copies every Thursday for payment.Figous was paid nothing whatever by Bowen, receiving his sole compensation from White, the owner of the truck.The job at Truman Corners required a total of approximately 10,000 tons of asphalt.The asphalt was very hot when put in the trucks, and had to be delivered hot, though it probably would remain in satisfactory condition for about two hours.Wulff knew Figous when he saw him.While the evidence did not specifically so show, there is a reasonable inference that Figous, driving White's truck, had previously done such extra hauling for Bowen; the extent and times of this we do not know.

What we are required to decide here is simply whether a submissible case was made on the question of agency,--i. e., whether Figous was, at the time, an agent and employee of Bowen.This necessarily involves the distinctions between the master and servant relationship and the independent contractor relationship; if, however, Figous was not Bowen's agent and employee, we need not determine precisely who was or were the independent contractor or contractors.Figous might, for instance, have been an employee of White, or the two might have been joint independent contractors.In Skidmore v. Haggard et al., 341 Mo. 837, 110 S.W.2d 726, 729, the following definitions were cited and approved: "A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.* * * An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking."And in Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918, 920, the latter term is authoritatively defined as follows: '* * * 'An 'independent contractor' is one, who, exercising an independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer except as to the result of his work.'Flori v. Dolph(Mo. Sup.)192 S.W. 949, 950;14 R.C.L. p. 67, par. 2;Coul v. George B. Peck Dry Goods Co., 326 Mo. 870, 32 S.W. (2d) 758, loc. cit. 759.'Sundry elements and circumstances enter into the determination of the actual relationship; ordinarily, no one of these is alone conclusive, and all must be viewed to see whether control, or a right of control, has been retained over the supposed employee's physical conduct and the details of the work.Skidmore, supra;Williamson v. Southwestern Bell Telephone Co., Mo., 265 S.W.2d 354;Miller v. St. Louis Realty & Securities Co., Mo.App., 103 S.W.2d 510;McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149;State ex rel. Chapman v. Shain et al., 347 Mo 308, 147 S.W.2d 457.In Chapman, Miller and Skidmore, supra, many of the distinguishing elements are set out.They will not be repeated here, but we shall note the significance of the elements which appear in our case.

Perhaps the closest case to ours on the facts is Rutherford v. Tobin Quarries, supra(336 Mo. 1171, 82 S.W.2d 918).There a number of independently owned trucks were hauling defendant's rock from a quarry to barges, and one of the drivers was killed in a collision between trucks.The question at issue was whether he was an employee of the defendant.Some owners drove their own trucks, others hired drivers; they were paid so much a load.Under the terms of written contracts they were purportedly made independent contractors.The designation in such a contract, however, is never controlling if there is evidence to overcome it in fact, and the court looked to the evidence to...