Thayer v. Kirchhof

• Decision Date: 02 April 1928
• Docket Number: 11894.
• Citation: 266 P. 225,83 Colo. 480
• Parties: THAYER v. KIRCHHOF.
• Court: Colorado Supreme Court

266 P. 225

83 Colo. 480

THAYER v. KIRCHHOF.

No. 11894.

Supreme Court of Colorado, En Banc.

April 2, 1928

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Action by Edna Whitaker Thayer, as conservatrix of the estate of C A. Whitaker, mental incompetent, against Francis J. Kirchhof doing business as the Francis J. Kirchhof Construction Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Fred W Mattson and Fred N. Holland, both of Denver, for plaintiff in error.

William E. Hutton and Bruce B. McCay, both of Denver, for defendant in error.

CAMPBELL J.

This action is by Edna Whitaker Thayer, as conservatrix of the estate of C. A. Whitaker, mental incompetent, against Francis J. Kirchhof, doing business as the Francis J. Kirchhof Construction Company, to recover damages for a personal injury to Whitaker, the mental incompetent, resulting from the negligence of the defendant's servant Stevens. At the close of the evidence the trial court, on the defendant's motion, directed a verdict for him on the ground that Stevens, whose negligence, if any there was, caused the injury, was not a servant or employee of the defendant, Kirchhof, at the time of the accident. Plaintiff is here with her writ.

The question for decision here, as below, is what was the relation between Kirchhof, the defendant, and Stevens at the time of the injury. As we read the record, there is no dispute in the evidence as to the controlling facts. Kirchhof was the general contractor for making an addition to the May Company's store building in Denver. In carrying out this contract it was necessary to excavate on the lot on which the proposed building was to rest. The work of excavating, that is, digging of the dirt that was to be removed, was done by Kirchhof through his own workmen. As he had no facilities of his own, such as horses, wagons, and drivers, for hauling away the excavated dirt, Roy F. Myers, who was in the teaming or hauling business and owned horses, wagons, or trucks and employed his own drivers, made an arrangement with Kirchhof to furnish the latter with the necessary wagons, horses, and drivers in hauling this dirt, and Kirchhof agreed to pay Myers therefor at the rate of $8 per day for each outfit. Myers was to furnish as many teams, drivers, and wagons as Kirchhof requested. Myers had nothing whatever to do with the actual work of digging or loading of the dirt into the wagons. All that Myers had to do with the work was to haul away the dirt from the May premises to some place or spot selected by him with which Kirchhof had no concern. There was no written contract, but Myers and Kirchhof are in accord that the arrangement between them was as above outlined. A few days before the accident Myers needed elsewhere some of the eight or more teams, wagons, and drivers that were then on this job, and called upon one Delashmutt to send some of his teams and drivers to work on the May job in place of Myers' teams withdrawn. Delashmutt, like Myers, was in the teaming business and the two had an arrangement that when one needed additional outfits for hauling, the other, on request, would furnish them. Delashmutt in this instance complied with Myers' request and sent a wagon, team, and a driver, Stevens, telling him to go to the May basement as they wanted a team down there. At the time Stevens, who owned his own team and wagon, was working for Delashmutt on some job. When he arrived at the May place he did not report to any one there in charge, but followed Myers' teams, still on the job, into the basement. Usually some shoveler or employee of Kirchhof who was engaged in the excavation merely directed Stevens where to place his wagon, and Hays, Kirchhof's foreman in charge of the work, also would, or could, give such directions. The dirt thus excavated and loaded on the Myers and Delashmutt wagons was hauled to a street dump in the city, they themselves, under the arrangement between Kirchhof and Myers, disposing of it as they saw fit. While Stevens was thus at work neither Myers nor Delashmutt gave him any specific directions. Delashmutt paid him every Saturday night on the basis of $8 per day. Myers collected from Kirchhof both for himself and Delashmutt, and out of the collections Myers paid his own drivers and turned over to Delashmutt the amount coming to him, and Delashmutt paid Stevens. Delashmutt had no contract with Kirchhof, and was not at the place of work at any time while Stevens was there. On objection of the defendant, the court refused to allow Delashmutt to testify how he was reimbursed for the money he paid Stevens, the object unquestionably being to show that it was out of money paid by Kirchhof to Myers and by Myers paid to Delashmutt. Hays, the defendant's foreman, might direct the work of hauling from the pit or basement, and Kirchhof testified he presumed did so direct when it was necessary, as that was what he was there for.

The foregoing statement of facts is taken from the plaintiff's opening brief and is as favorable to her as she can claim. In addition thereto, it should be said that Kirchhof was not consulted and knew nothing of the arrangement between Myers and Delashmutt, whereby Stevens, who at the time was working for Delashmutt, took his own team, on direction of Delashmutt, to the May building to haul dirt in place of one of Myers' teams that was sent elsewhere. There is no evidence that Kirchhof, or any of his employees, or the foreman had or exercised any control over or gave any direction whatever to Stevens, further than to direct him generally where to place his wagon in the basement, and such direction, of course, was in direct connection with the work of excavation. No direction was given to him how to manage his team or where or how to drive it after his wagon was loaded. Stevens himself testifies that the only instruction given him by Hays, Kirchhof's foreman, was as to the place where he was to get the dirt. At the time of the accident Stevens was returning from a trip to the dump, and, as he started to drive from the street or sidewalk into the pit or basement, the tongue of his wagon struck Whitaker, the mental incompetent, throwing him to the ground, and causing the injury complained of.

The plaintiff has grouped her assignments of error under the three following heads:

(1) That the trial court erred in granting defendant's motion for a directed verdict, because the evidence shows that Stevens was doing the defendant's work under the direction and control of the defendant, and therefore, as matter of law, Stevens was the servant of the defendant.

(2) Error in granting defendant's motion for a directed verdict because it was, at least, for the jury to say what the contract of the parties was and what conclusions should be drawn from the evidence concerning the relation between Stevens and the defendant.

(3) That the court erred in excluding certain evidence offered by the plaintiff.

Taking up these assignments in their order:

1. It will be observed that the assignment itself assumes, mistakenly, as we think, that Stevens was doing the defendant's work, and was doing it under the direction and control of the defendant. If Stevens was, at the time of the accident, Kirchhof's servant and as the result of the servant's negligence the injury was inflicted, Kirchhof may be liable under the general doctrine of respondeat superior; but if Stevens then was in the employment of Myers or Delashmutt, and if each of them as to the defendant was an independent contractor, the defendant is not liable. In Frerker v. Nicholson, 41 Colo.

12, 92 P. 224, 13 L.R.A. (N. S.) 1122, 14 Ann.Cas. 730, upon which it seems the trial court chiefly relied, we held that where a person hires of another a vehicle and driver to be used in carrying third persons to and from certain points and exercises no control over the driver further than to tell him in a general way to carry the occupants, the owner, and not the hirer, is liable for injuries which result to such occupants as the result of the driver's negligence. Our reading of the cases on this general subject leads to the conclusion, which seems to be logical, that there is no difference or distinction in respect to such liability between carriers of passengers and carriers of freight or materials. The leading case in the Supreme Court of the United States on this general subject is Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480. In the opinion of Mr. Justice Moody in that case is a statement of...