Thomassen v. West St. Louis Water & Light Co

• Decision Date: 02 January 1923
• Docket Number: No. 16840.,No. 16796.,16796.,16840.
• Citation: 251 S.W. 450
• Court: Missouri Court of Appeals
• Parties: THOMASSEN v. WEST ST. LOUIS WATER & LIGHT CO. at al.

251 S.W. 450

THOMASSEN v. WEST ST. LOUIS WATER & LIGHT CO. at al.

No. 16796.

No. 16840.

St. Louis Court of Appeals. Missouri.

January 2, 1923.

Rehearing Denied May 26, 1923.

Allen, P. J., dissenting in part.

Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

"Not to be officially published."

Action by Hortense Thomassen against the West St. Louis Water & Light Company and another. From judgment for plaintiff, each defendant appeals separately. Appeals consolidated. Judgment as against the West St. Louis Water & Light Company reversed, and as against defendant Frederick Miller affirmed.

A. & J. F. Lee, James A. Waechter, and Joseph Renard, all of St. Louis, for appellants.

Joseph C. McAtee, of Clayton, for respondent.

BECKER, J.

Plaintiff recovered judgment for $3,000 against both of the defendants below as damages for the wrongful killing of her husband, John Thomassen. Each of the defendants in due course appeals, the defendant West St. Louis Water & Light Company's appeal being No. 16840, and the appeal of the defendant Frederick Miller No. 16796. These two appeals have "seen consolidated under No. 16796.

Plaintiff's petition contains several assignments of negligence. The answers were general denials. At the close of plaintiff's case and again at the close of the entire case each of the defendants requested an instruction in the nature of a demurrer, each of which was overruled, and thereupon the case was submitted to the jury upon the humanitarian doctrine alone.

Plaintiff's husband was a farmer residing on the Olive Street road in St. Louis county, Mo. On July 13, 1918, between 6 and 7 o'clock in the evening, returning from his work at one of his farms, he proceeded along a private lane until he arrived at the Olive Street road, which runs east and west, and was walking westwardly along the north side of said road when he was struck by an automobile truck owned and operated by the defendant Frederick Miller. From the injuries resulting therefrom he died the following day. Said Miller was an employé of the defendant West St. Louis Water & Light Company, working in the capacity of foreman, but at the time when the deceased met with his injuries the said Miller was in the act of conveying a number of employés of the said defendant Water & Light Company back home from the place at which they had been working during the day for said company, at a point some 14 miles from the western limits of St. Louis.

I. We will first deal with the point raised by the defendant West St. Louis Water & Light Company that the learned trial court erred in overruling its separate demurrer because it conclusively appears from the record that the defendant Miller was an independent contractor operating his own machine for hire without the direction or control of its operation by the said Water & Light Company. Applying the principles and rules of law applicable to the question in hand to the facts as gleaned from a careful reading of the record, we have come to the conclusion that the point is well taken.

All of the evidence shows that the defendant Miller was employed by the defendant Water & Light Company as foreman superintending the work of digging water ditches and laying water pipes at a place in the southeast part of St. Louis county, for which he received $5 per day. Owing to the scarcity of labor the Water & Light Company had an agreement with such of its employés as worked at points a considerable distance from the home office of the company to furnish them transportation to and from their place of work. The usual method of transporting the men was to take them out and back in a service car or hired automobile. One McBride and one Harris were most frequently hired to take the men to and from their work in their automobiles. The defendant Miller, who owned a Ford truck, was also on occasions employed by the defendant Water & Light Company to haul the men back and forth, and on such occasions Miller received separate compensation of $3 per trip for such services.

On the day in question the said Harris had transported five or six of the Water & Light Company's employés to their place of work near Hines in St. Louis county, some 14 or 15 miles distant from the limits of the city of St. Louis, but Harris' truck broke down during the course of the afternoon, and he was unable to get back to Hines and bring in the men at the conclusion of their day's work. The defendant Miller, to whom this information was conveyed by Harris, when his day's work was over, drove his truck out to Hines for the purpose of conveying the defendant Water & Light Company's employés at that place back to the city, and it was during the course of his drive from Hines to the city limits along the Olive Street road that he ran into and injured plaintiff's husband.

The record discloses that the defendant Water & Light Company did not at the time know that Harris' machine had broken down, and therefore did not specifically direct the defendant Miller to go out to Hines Station and convey the men working there to the city limits in his truck, but it sufficiently appears that defendant Miller, informed by Harris of his inability to bring back the workmen to the city, went and hauled the men in conformity with his agreement with the Water & Light Company that in such a contingency he was to get the men after their day's work was over and to be paid $3 for the trip, and it further appears that the defendant Miller, on this occasion, for this trip, was paid the sum of $3, separate and apart from, and in addition to, his wage of $5 for his day's work as foreman.

The testimony is uncontradicted that defendant Miller owned the automobile truck himself in which he transported the men, and that he had owned this particular truck for a month or more prior to the date on which deceased met with his injuries, and that prior thereto the said Miller had owned another automobile for over a year, and had used same constantly in connection with his work. Miller had off and on for a number of years been in the employ of the Water & Light Company, and had also, during said period of time, often contracted for specific work such as laying of water pipes in the county, being paid therefor by the job, and that on such occasions, when he had contracted for laying water pipes for the company by the job, Miller had often transported the laborers working for him to and from their places of work in the county in his automobile truck. It further appears that the defendant Water & Light Company, on the occasions when they hired Miller, merely directed him to take their employés to or from the particular point at which their men were working, but that at no time had it directed in any way the manner in which he did so, nor did it direct him as to what route he should take in reaching such place, nor can it be inferred that it reserved the right to control or direct him. So far as the record is concerned defendant Miller appears to have been a competent and fit person to employ for the purpose of transporting the employés from place to place, and it clearly appears that Miller had for some time prior to the date in question, on occasions, been accepting that character of employment, namely, that of transporting workmen to and from their place of work by use and means of his truck. It further appears that Miller, on this particular occasion, as well as on other occasions when he had prior thereto transported men far the defendant Water & Light Company, did so according to his own method and without any specific direction or control over him on the part of the said company, he being responsible to the company only for the results of his work. And, since the...