Thomassen v. West St. Louis Water & Light Company

• Citation: 278 S.W. 979,312 Mo. 150
• Decision Date: 22 December 1925
• Docket Number: 25084
• Parties: HORTENSE THOMASSEN v. WEST ST. LOUIS WATER & LIGHT COMPANY et al., Appellants
• Court: United States State Supreme Court of Missouri

278 S.W. 979

312 Mo. 150

HORTENSE THOMASSEN v. WEST ST. LOUIS WATER & LIGHT COMPANY et al., Appellants

No. 25084

Supreme Court of Missouri

December 22, 1925

Transferred from St. Louis Court of Appeals.

Judgment of Circuit Court affirmed.

A. & J. F. Lee, James A. Waechter and Joseph Renard for appellants.

The demurrer of the defendant water company should have been sustained because Miller was an independent contractor while operating his own machine for hire, without direction or control of its operation by said water company. Calhoon v. Mining Co., 202 Mo.App. 564; Mullich v Broker, 119 Mo.App. 332; O'Neil v. Blase, 94 Mo.App. 648; Allen v. Coglizer, 208 S.W. 102; Spelman v. Delano, 177 Mo.App. 28; Peters v. Ry Co., 150 Mo.App. 721; Porter v. Withers Estate Co., 201 Mo.App. 27; Long v. Moon, 107 Mo. 334; Crenshaw v. Ullman, 113 Mo. 633; Gayle v. Car Co., 177 Mo. 427; Funk v. Furnace Co., 82 Mo. 276; O'Hara v. Laclede Gas L. Co., 244 Mo. 395; Kipp v. Oyster, 133 Mo.App. 711; Simmons v. Murray, 234 S.W. 1012; Standard Oil Co. v. Anderson, 212 U.S. 215.

Joseph C. McAtee for respondent.

To obtain the shield of an independent contractor, the owner or proprietor must, first, select a competent and fit person, engaged in an independent calling; second, the work committed to him must be neither attended with danger to others, nor unlawful; third, the contractor must be allowed to do the work according to his own methods and only subject to control by the owner as to the results of his work. Without the concurrence of each, and all of these conditions, the condition of independent contractor cannot legally exist. Dillon v. Hunt, 82 Mo. 150, 65 L. R. A. 459; Salmon v. Kansas City, 241 Mo. 57; Loth v. Theatre Co., 197 Mo. 354; Jensen v. Barbour, 15 Mont. 582; O'Neill v. Blase, 94 Mo.App. 648; Mullich v. Brocker, 119 Mo.App. 338.

Higbee C. Railey, C., not sitting.

OPINION

HIGBEE

Plaintiff recovered judgment against the defendants for damages in the sum of $ 3,000 for the killing of her husband, which, on appeal to the St. Louis Court of Appeals was affirmed by the majority opinion as against the defendant Frederick Miller, and reversed as to the defendant the West St. Louis Water & Light Company. One of the judges deeming the decision of the majority reversing the judgment against the corporate defendant, contrary to the decisions of this court, the case was accordingly certified and transferred to this court, as required by Section 6 of the Amendment of 1884 to our Constitution. The majority and minority opinions, which are reported in 251 S.W. 450, fully state the facts in the case. Briefly, they are: The corporate defendant had laborers employed at a distance from their homes and, in addition to their wages, it had agreed to convey them to and from their place of work. A man by the name of Harris had conveyed some of the laborers to their place of work on the morning of July 13, 1918. During the afternoon he telephoned the defendant Miller, the foreman of the company, that his automobile was broken. In similar exigencies on former occasions, Miller had taken the workmen to their homes in his truck and received three dollars from the company for each trip. This was in accordance with an understanding he had with the manager of the company. On the evening in question, pursuant to this understanding, he took some of the workmen to their homes in his truck, and, as the jury found on substantial evidence, negligently ran his truck against plaintiff's husband on a public highway, inflicting injuries from which he died in a few hours. As said in the dissenting opinion: "It appears that Miller was not engaged in an independent occupation or employment as a carrier of passengers, had not done such work for any one else, and only occasionally did it for the company."

There is no disagreement about the facts. It was held in the majority opinion that in carrying the workmen to and from their work, Miller was acting in the capacity of an independent contractor and that the company was not liable to respond in damages for the negligent killing of plaintiff's husband.

We do not think, as held in the majority opinion, that it can be said, as a matter of law, that in carrying the workmen to their homes Miller was acting as an independent contractor. We think the dissenting opinion of Allen, P. J., correctly declares the law in this respect. In Flori v. Dolph, 192 S.W. 949, at foot of column 2, p. 950, Bond, J., quoted approvingly from a standard authority, as follows:

"According to the definition substantially adopted by many courts, with some variation in language, an 'independent contractor' is one, who, exercising an independent employment, contracts to do a certain piece of work according to his own methods, and without being subject to the control of his employer except as to the result of his work.' [14 R. C. L. 67, par. 2; Thompson on Negligence, p. 899, sec. 22; McGrath v. St. Louis, 215 Mo. l. c. 210, 114 S.W. 611.]" See also O'Hara v. Laclede Gas Light Co., 244 Mo. l. c. 409, 148 S.W. 884; Loth v. Columbia Theater Co., 197 Mo. l. c. 354, 94 S.W. 847.

In Mullich v. Brocker, 119 Mo.App. l. c. 337, 97 S.W. 549, Goode, J., said: "When a person is an independent contractor and when merely a servant, are questions that have engaged the attention of the appellate tribunals of this State frequently; and yet we should hesitate to say that any test of universal application has been prescribed. Among others these cases may be consulted on the subject: Barry v. St. Louis, 17 Mo. 121; Morgan v. Bowman, 22 Mo. 538; Hilsdorf v. St. Louis, 45 Mo. 98; Fink v. Furnace Co., 82 Mo. 276; O'Neill v. Blase, 94 Mo.App. 648. In the recent case of Gayle v. Foundry Co., 177 Mo. 427, 446, the Supreme Court approved the following rule, taken from the work of Judge Thompson on Negligence, vol. 2, p. 899:

"'The general rule is that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work not in itself unlawful or attended with danger to others, according to the contractor's own methods, and without his being subject to control, except as to the results of his work, will not be answerable for the wrongs of such contractor, his sub-contractor, or his servants, committed in the prosecution of such work. An independent contractor is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.' [Gayle v. Foundry Co., 177 Mo. l. c. 446.]

"In the same opinion the definition of Shearman & Redfield on Negligence was approved. It reads as follows:

"'Although, in a general sense, every person who enters into a contract may be called a "contractor," yet that word, for want of a better one, has come to be used with special reference to a person who, in the pursuit of an independent business, undertakes to do a certain piece of work for other persons, using his own means and methods, without submitting himself to their control in respect of all its details. The true test of a "contractor" would seem to be that he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.' [Vol. 1, sec. 164.]

"Judge Cooley says: 'The term contractor is applicable to all persons following a regular, independent employment, in the course of which they offer their services to the public to accept orders and execute commissions for all who may employ them in a certain line of duty, using their own means for the purpose and being accountable only for final performance.' [Cooley on Torts (2 Ed.) top p. 647.]

"Wharton approves the following statement of the rule by Judge Sharswood in Painter v. Mayor of Pittsburg, 46 Pa St. 313: 'It may be...