Thurston v. Kansas City Terminal Ry. Co.

• Decision Date: 04 May 1914
• Docket Number: No. 10768.,10768.
• Citation: 168 S.W. 236
• Parties: THURSTON v. KANSAS CITY TERMINAL RY. CO.
• Court: Missouri Court of Appeals

168 S.W. 236

THURSTON v. KANSAS CITY TERMINAL RY. CO.

No. 10768.

Kansas City Court of Appeals. Missouri.

May 4, 1914.

Rehearing Denied June 13, 1914.

1. MASTER AND SERVANT (§ 88)—INJURY TO THIRD PERSON—INDEPENDENT CONTRACTOR.

Under a written contract for the removal of a building from defendant's land, by which the contractor was to be compensated by retaining one-half the brick and joists in the building and was to pay all claims for damages to himself, his employés, or third persons, and by which defendant was to name and furnish a man to look after its interests during the work,

to be paid by the contractor, and under which defendant furnished a representative, carried on its pay roll as a carpenter, the contractor was an independent contractor, and defendant was not liable to his employé injured by a board thrown from a window by its own representative.

2. MASTER AND SERVANT (§ 302)—INJURIES TO THIRD PERSON—"SCOPE OF EMPLOYMENT."

In such case, the act of the defendant's representative in throwing the board which struck plaintiff was not within the "scope of employment," by which is meant what the servant was employed to perform, and what, with the knowledge and approval of the employer, he actually did perform, rather than by the mere verbal designation of his position, and hence the defendant was not liable to plaintiff for his action.

3. PLEADING (§ 93)—INCONSISTENT DEFENSES —DENIAL OF WRONG AND RELEASE.

There is no inconsistency in defendant's denial of any wrong against plaintiff and its setting up a release and settlement of the alleged wrong; a defendant having a right to set up as many consistent defenses as he has.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

Action by John Thurston against the Kansas City Terminal Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Samuel W. Sawyer and J. R. Bell, both of Kansas City, for appellant. Horace Kimbrell and Martin J. O'Donnell, both of Kansas City, for respondent.

ELLISON, P. J.

The defendant, a railway company, was the owner of a certain tract of land in Kansas City, Mo., upon which was a brick building known as "Old Marsh Oil Mill." Desiring to remove this structure, so as to use the track for switching purposes, defendant entered into a written contract with one S. D. Harmon to tear it down. As full payment for doing said work, Harmon was to retain one-half of all the brick and joists in the building. He was to complete the work within 30 days, and was to clean and rick in good order on said premises, at places designated by defendant, the one-half of the brick and joists belonging to defendant, and to throw all refuses into the basement. Harmon also agreed "to assume and pay all claims for loss or damage suffered by himself, his employés or third persons arising from the doing of the work, contemplated by this contract, and to indemnify first party (defendant) against loss or damage by reason thereof," and to give a $5,000 bond for the faithful performance of his contract.

There was also this further provision in the contract:

"Fifth. It is further agreed that the first party (defendant) name and furnish a man to look after the interests of the first party while said work is in progress, who is to be paid by said second party (Harmon) a sum of not less than fifteen ($15.00) dollars per week until said work is completed."

Harmon began the work of tearing down the building and preserving for defendant its one-half of the material therein, and Robert Leachman, who was already in the employ of defendant, was furnished by it to be on the premises and "look after the interests of" defendant during the progress of the work. Leachman was carried on the pay roll of defendant sometimes as a painter and sometimes as a carpenter; but, while representing defendant on the premises in question, he was carried as a carpenter. The plaintiff, a negro man, was employed as a day laborer by Harmon to assist him in demolishing the building. After working there some five or six days, he was on the ground north of and near the building in a stooping posture, engaged in pulling some boards from a pile, when a board was thrown from a window on one of the floors above him, striking him on the head and injuring him. There was some evidence to show that Leachman threw the board, and, as the jury found that he did, it must be deemed to have been established that the board was thrown by him. The suit is by plaintiff for damages for personal injuries sustained by reason of being struck by said board. Defendant contends that the demurrer to the evidence should have been sustained because the evidence shows that Harmon was an independent contractor in the work of demolishing the building, and that Leachman, in throwing the board from the window, was not acting as the servant of defendant or within the scope of his duties as such, and therefore defendant is not liable. It is urged that Leachman was placed on the premises simply to "look after the interests" of defendant, and that this consisted solely in seeing that defendant's part of the brick and joists was preserved and left on the premises cleaned and ricked in good order; and that it was no part of his duties to assist Harmon in tearing down the building, and that when, in doing so, he negligently threw down a plank and injured plaintiff, he was acting outside the scope of his employment, and consequently defendant cannot be held responsible.

In a recent case in the Supreme Court (Salmon v. Kansas City, 241 Mo. 14, 145 S. W. 16), the questions of immunity through the intervention of an independent contractor and what reserved right of interference or supervision by the owner would destroy the character of independent contractor was much discussed. There was a vigorous dissent in the case, much of it caused by the fact that the defendant in that case was a municipality charged with the duties it could not free itself of through a contract with others. This phase of the case is not in this controversy. In that case the right reserved to the city to supervise and direct the work of digging and blasting for the sewer was many fold more comprehensive than the right reserved in this case. So material is the difference that, if the reservation of right which the contract gave to the city in that case had been (comparatively) as limited and inconsequential as in this case, we have no right to say the court would not have been unanimous in its view of that branch of the case. But be that as it may, accepting the majority opinion, as we must, we find no ground for the position that Harmon was not an independent contractor. Neither the contract nor the evidence when considered together afford any ground, under the Salmon Case, for destroying his character as an independenet contractor. Many of the...