Timmermann v. Architectural Iron Co.

• Decision Date: 07 December 1927
• Docket Number: No. 26318.,26318.
• Citation: 1 S.W.2d 791
• Parties: GEORGE TIMMERMANN v. ST. LOUIS ARCHITECTURAL IRON COMPANY, Appellant.
• Court: Missouri Supreme Court

1 S.W.2d 791

GEORGE TIMMERMANN v. ST. LOUIS ARCHITECTURAL IRON COMPANY, Appellant.

No. 26318.

Supreme Court of Missouri. Division No. 1.

December 7, 1927.

Appeal from Circuit Court of City of St. Louis. — Hon. Moses Hartmann, Judge.

AFFIRMED.

D'Arcy & Neun, Frank A. Habig and John P. Leahy for appellant.

(1) The amended petition does not state facts sufficient to constitute a cause of action against defendant. Mallinckrodt Chem. Co. v. Nemnich, 169 Mo. 388; Keppler v. Wells, 238 S.W. 429; Kramer v. Powers, 279 S.W. 43; Hopkins v. Car & Fdy. Co., 295 S.W. 841. (2) The trial court erred in giving to the jury plaintiff's Instruction 1. State v. Becker, 293 S.W. 783; State v. Ellison, 272 Mo. 571; Allen v. Mo. Pac. Ry. Co., 294 S.W. 80; Hall v. Coal Co., 260 Mo. 351; Davis v. Nat. Refining Co., 294 S.W. 114. (3) The trial court erred in permitting plaintiff and his witness Arthur Zeis to testify as to their conclusion that they were employed by defendant. Watkins v. Holloway, 181 S.W. 602; Kendall v. Bain, 46 Mo. App. 581; Milstead v. Equitable Co., 49 Mo. App. 191; Lumsden v. Howard, 236 S.W. 420: Indiahoma Refining Co. v. Ins. Co., 242 S.W. 710; Clear v. Van Blarcum, 241 S.W. 81. (4) The verdict is excessive. Mahmet v. Radiator Co., 294 S.W. 1015; Kibble v. Railroad Co., 227 S.W. 42. (5) The verdict is the result of the bias, passion and prejudice of the jury. (6) The trial court erred in refusing to give to the jury the defendant's peremptory instruction at the close of plaintiff's case, and also at the close of the entire case. Roseman v. United Rys. Co., 251 S.W. 204. (7) The verdict was against the evidence, the weight of the evidence, and the law under the evidence. Roseman v. United Rys. Co., 251 S.W. 104; Stone v. Mo. Pac. Ry. Co., 293 S.W. 367; Ward v. Car & Fdy. Co., 293 S.W. 492; Champagne v. Hamey, 189 Mo. 727; State ex rel. v. Clifford, 228 Mo. 194. (8) An independent contractor is one who undertakes to do a specific piece of work for another without submitting himself to such other's control in the details of the work save as to the result of the work. So that one who contracts to do a specific piece of work, furnishing his own assistance and executing the work, either entirely according to his own ideas or in accordance with a plan previously given him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is a contractor, and not a servant. Gayle v. Car & Fdy. Co., 177 Mo. 427; Fink v. Furnace Co., 82 Mo. 276; Lancaster v. Conn. Mut. Life Ins. Co., 92 Mo. 460; Long v. Moon, 107 Mo. 334; 39 C.J. 1315. (9) The mere right on the part of the employer to supervise the work as it progresses and to require it to meet the approval of the employer does not make the contractor a servant. Gayle v. Car & Fdy. Co., 177 Mo. 427. (10) That a person alleged to be an independent contractor is employed at the rate of $1.50 an hour does not take away the independent character of his employment. Karl v. Juniata County, 206 Pa. 633. (11) The furnishing of appliances is an important matter in determining the relation of independent contractor and should be taken into consideration. Porter v. Withers Estate Co., 201 Mo. App. 27. (12) An employer is not liable for the wrongful acts of an assistant of another, unless the other has authority to employ help. Thyson v. Davenport Co., 134 Iowa, 749. (13) Where the facts are undisputed, the court should declare, as a matter of law, whether one is an independent contractor or merely a servant. Gayle v. Car & Fdy. Co., 177 Mo. 427; Fink v. Furnace Co., 82 Mo. 276. (14) Where an instruction omits the finding of the elements of the rights of action, it is erroneous and not cured by another instruction which defines the elements. Wojtylak v. Texas Coal Co., 188 Mo. 260; Wilks v. Railroad Co., 159 Mo. App. 727; Traylor v. White, 185 Mo. App. 325.

Mark D. Eagleton and Hensley, Allen & Marsalek for respondent.

(1) Plaintiff's petition states a cause of action. (a) It alleges that defendant negligently ordered plaintiff to sit upon the beam when defendant knew, or by the exercise of ordinary care could have known, that the beam was not braced nor supported, and was likely to tilt and fall, and cause plaintiff to be injured; that defendant negligently failed to furnish plaintiff a reasonably safe place in which to work; a negligent failure to brace the beams by means of supports extending from the beams to the ground, in disregard of a general custom, known to defendant, so to do. Enloe v. Car Co., 240 Mo. 443; Koerner v. Car Co., 209 Mo. 157; Herdler v. Stove Co., 136 Mo. 15; Stuart v. Oil Co., 211 Mo. App. 350; State ex rel. v. Falkenhainer, 291 S.W. 466; Johnson v. Car Co., 259 S.W. 442. (b) The allegation that defendant negligently failed to brace the beams is an allegation of a specific fact. The petition is not similar in this respect to cases involving falling piles of material, where the petition alleges merely that the pile was insecure and dangerous. See definition of "Brace," Webster's Dictionary. (c) The petition is not demurrable for the reason, urged by appellant, that it contains only one general allegation, referring to all the specifications of negligence, stating that plaintiff received his injury "as a direct and proximate result of the aforesaid negligence and carelessness on the part of the defendant." To repeat after each specification of negligence that the injury was caused thereby would violate the statute which requires the petition to set out a plain and concise statement of the facts without unnecessary repetition. R.S. 1919, sec. 1220. (d) Defendant answered plaintiff's amended petition, without demurring or moving to make it more definite. No question of its sufficiency was raised until the case reached this court. The objections now raised, even if valid, have been waived. Ehrlich v. Mittelberg, 299 Mo. 284; Ice Co. v. Kuhlmann, 238 Mo. 685; Rutledge v. Swinney, 261 Mo. 140. (2) No error was committed in refusing the defendant's peremptory instructions. (a) The evidence was sufficient to take the question of negligence to the jury. Burkhart v. Rope Co., 217 Mo. 466; Herdler v. Stove Co., 136 Mo. 15; Huskey v. Safety Boiler Co., 192 Mo. App. 370; Morin v. Rainey, 207 S.W. 858; Bequette v. Pittsburgh P.G. Co., 200 Mo. App. 506. (b) There was ample evidence to support plaintiff's claim that he was employed by defendant, under Zeis as its foreman, and not by Zeis, as an independent contractor, to raise a jury question on that issue. Thomassen v. Water Co., 312 Mo. 150; Jewel v. Bolt & Nut Co., 231 Mo. 193: Gayle v. Fdy. Co., 177 Mo. 427; Burgess v. Garvin, 219 Mo. App. 162; Porter v. Withers Estate, 201 Mo. App. 27; Boten v. Ice Co., 180 Mo. App. 112; Harvey v. O'Connor, 284 S.W. 171; Vaughn v. Davis, 221 S.W. 786. (c) The burden of the evidence as to this issue was on the defendant. Knoche v. Pratt, 194 Mo. App. 304; Semper v. American Press, 273 S.W. 186. (d) In passing upon a demurrer to the evidence it is the duty of the court to accept as true all evidence in favor of plaintiff and all inferences in plaintiff's favor which may, with any degree of propriety, be drawn therefrom, and the court cannot draw inferences in favor of defendant to counter-balance or overthrow inferences in plaintiff's favor. Troll v. Drayage Co., 254 Mo. 332; Buesching v. Gas Light Co., 73 Mo. 219; Knapp v. Hanley, 108 Mo. App. 360. The court can sustain a demurrer only when the evidence and the inferences to be drawn therefrom, considered in the light of the foregoing rule, show conclusively that plaintiff has no case. Scherer v. Bryant, 273 Mo. 602; Gratiot v. Railroad, 116 Mo. 466; Steffens v. Fisher, 161 Mo. App. 393. (3) Plaintiff's Instruction 1 properly stated the law. (a) The instruction submitted for the jury's consideration defendant's failure to brace the beam, and left it to them to say whether such failure constituted negligence on defendant's part. This was a sufficient finding, under the circumstances hypothesized, to render defendant liable. Authorities under points 1 (a) and 2 (a), supra. (b) It was not necessary that plaintiff submit, in the instruction, all the negligent acts pleaded in the petition, but only sufficient thereof to make a case. State ex rel. v. Ellison, 223 S.W. 671. (c) It was not essential that plaintiff have the jury find the existence of a custom to brace beams in course of construction. The evidence on that subject was admissible on the question of defendant's alleged negligence, but was not a necessary element of the cause of action submitted. Smith v. Fordyce, 190 Mo. 24; Huhn v. Railroad, 92 Mo. 449; Bennett v. Traction Co., 209 Mo. App. 627; Whelan v. Zinc Co., 188 Mo. App. 603: Lightner v. Dunham, 195 S.W. 1057; Kinney v. St. Ry. Co., 261 Mo. 97. (d) Defendant was liable for its negligence in failing to brace the beam. The contributory negligence of Zeis, in releasing his hold thereon, constituted no defense to the cause of action, and was not a necessary element to defendant's liability. Authorities supra. (e) The instruction requires the jury to find that plaintiff was "in the employ of defendant" at the time of his injury, and was "engaged within the line and scope of his employment for said defendant." This was sufficient, under the authorities. Llywelyn v. Lowe, 239 S.W. 539; Vaughn v. Davis, 287 Mo. 151. (f) Instruction 3, given for defendant covers the entire case and authorizes a verdict for defendant, if the jury find "that at the time plaintiff was injured he was not in the employ of defendant." Defendant is therefore estopped to complain that plaintiff's Instruction 1 failed to require a more detailed finding of the facts on this issue. Holzemer v. Ry. Co., 261 Mo. 406; Ellis v. Ry. Co., 234 Mo. 676; Johnson v. Light Co., 232 S.W. 1098; Friedman v. Underwood, 249 S.W. 64. (4) The claim that error was committed in permitting plaintiff and...