Ward v. Curry
| Decision Date | 12 December 1960 |
| Docket Number | No. 47862,No. 1,47862,1 |
| Citation | 341 S.W.2d 830 |
| Parties | Roger WARD, Respondent, v. Albert CURRY, Defendant, Standard Accident Insurance Company, Garnishee, Appellant |
| Court | Missouri Supreme Court |
John J. Alder, Wiley W. Morrison, William Bryan Miller, Alder & Morrison, Kansas City, for garnishee, appellant.
Irving Kuraner, Kansas City, for respondent. Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, of counsel.
Garnishment. Plaintiff, Roger Ward, who has judgment for the sum of $37,500 against Albert Curry for personal injuries negligently inflicted upon him by Curry in the operation of a motor truck owned by Stewart Sand & Material Company, caused Standard Accident Insurance Company (hereinafter referred to as 'Standard') to be summoned and impleaded as garnishee in aid of an execution issued on said judgment. The issue presented in that proceeding was whether a certain policy of liability insurance issued by Standard to its named insured, Stewart Sand & Material Company (hereinafter referred to as 'Stewart'), also covered Curry's liability to Ward under the aforesaid judgment. With jury trial waived, the trial court found in favor of plaintiff Ward and rendered judgment against Standard for $37,500 and for interest and costs, from which Standard has appealed.
The policy of insurance, designated as a 'Comprehensive Liability Policy', issued by Standard to Stewart and outstanding on the date plaintiff was injured by defendant Curry, to wit: November 10, 1955, contained the following provisions material to adjudication of the issues presented to the trial court and in the briefs filed in this court:
'Insuring Agreements
'I. Coverage A--Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person and caused by accident.
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'III. Definition of Insured. The unqualified word 'insured' includes the named insured and also includes * * * (2) under Coverages A and B, any person while using an owned automobile * * * and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission, * * *. The insurance with respect to any person or organization other than the named insured does not apply under Division (2) of this Insuring Agreement:
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'(c) to any employee with respect to injury to * * * another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of an automobile in the business of such employer.' (Emphasis supplied.)
Stewart is and for many years has been engaged in the business of (1) dredging sand from the Missouri River, piling it on the river bank, and selling and delivering it to its business customers in and adjacent to Kansas City and (2) making ready-mixed concrete, which it also sells and delivers to its customers in that area. In the process of making concrete, it also hauls rock, gravel and other material from its sources of supply to the plant where it is mixed. The various phases of its operations are conducted from several plants, but the premises primarily involved in this proceeding are at First and Grand Avenue in Kansas City, Missouri. These premises, about 600 by 300 feet in dimension, lie along the south side of the Missouri River. The mixer plant used in making ready-mixed concrete is situated in the center thereof.
Delivery of ready-mixed concrete, which goes from Stewart's plant to its numerous customers, is made by means of some 90 specially constructed 'ready-mixer' motor trucks owned by Stewart and operated by Stewart's regular employees, one of whom was the defendant Curry. Delivery of sand to Stewart's customers and of sand, rock and gravel to and between Stewart's several plants as its needs require is made by means of trucks operated by some 14 to 20 'contract haulers', who own, maintain, drive (or provide their own drivers for) these trucks. These haulers work by the year and are required to and do come to the plant or plants daily. They constitute in the main the method and means by which Stewart delivers sand taken from the river and sold to its customers, the delivery of which is an essential and integral part of the operation of the usual business in which it is engaged. Stewart, however, owns two trucks which are driven by its salaried employees and which on occasion are used to deliver sand and other material.
Among the approximately 14 regularly employed contract haulers was one Norval J. Coen, who, since December, 1946, has furnished and operated or caused to be operated two trucks for Stewart. Plaintiff Ward was and since 1950 had been regularly employed and paid exclusively by Coen as the operator of one of these trucks. Certain portions of a written contract under which Coen operates are stressed by Ward as pertinent to the issues here presented, to wit:
'4. * * * Stewart shall notify the contractor [Coen] of the material or property to be transported, and of the time and location of the place to load the same, and of the place of delivery, all within a reasonable time prior to the date that delivery is required; * * *
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'6. * * * Stewart shall have no control over the truck drivers or any other persons used or employed by contractor, nor shall Stewart have any control over the route, method of hauling or transportation, or the detail or management thereof. * * * [T]he contractor * * * shall, at his own cost and expense, furnish all necessary labor, equipment, gasoline and oil, repairs, other supplies, and all other things necessary to that end, and shall have full charge, control and responsibility over the manner and method employed, and shall pay all taxes levied in connection with such operations.
'7. Stewart agreed to pay the contractor for the performance of hauling service in accordance with the following rate schedule, * * *: up to and including 5 miles one way haul at 30 cetns per ton of 2,000 pounds, plus 4 1/2 cents per ton for each mile thereafter.
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In accordance with the provisions of the contract, Coen owned, maintained, repaired and fueled the truck driven by Ward. He also maintained the state and federal permits in his own name, carried liability insurance, did his own garaging, paid all social security, license and property taxes and expenses incident to operation under the contract, and paid Ward all of the compensation paid him for services rendered to Stewart.
The testimony further showed that, in practice, Stewart made the rules in the plant for loading and unloading the trucks operated by the contract haulers, all of whom operated under seniority lists kept, one by Stewart's truck superintendent, one by Stewart's sand clerk, and one by Stewart's plant superintendent. Stewart's Grand Avenue dispatcher designated the material to be hauled and when, where and to whom it should be delivered. Seniority was based on the truck, not on the men; it depended on how many trucks the particular contract hauler had and when he and the truck or trucks began hauling for Stewart. The seniority among the contract haulers worked as follows: If, for example, 14 contract hauler trucks appeared on the Stewart premises and only 10 loads were to be hauled, the first 10 in seniority would be selected to 'get the loads.' The first trucker to unload at Grand Avenue would get the next load. If Coen refused to haul when his turn came, Stewart's truck superintendent would call the next highest man in seniority, and so 'down the list.' If the superintendent went through the list and got 'nobody', he would go back to Coen and he 'would have to have an awful good reason for not going.' In case of emergency a contract hauler driver would be taken off his regular haul and required to haul within the Grand Avenue plant on a tonnage or hourly basis, depending on the decision of Stewart's truck superintendent; the drivers had no choice; Stewart's truck superintendent would ask the driver, not the owner.
Ward began work each morning at about 7:00 o'clock by going to Stewart's quarry at Pixley, getting a load of gravel and bringing it to the Grand Avenue plant. On November 10, 1955, Ward had hauled a load of rock from Pixley to the Grand Avenue plant. Thereafter, during the day, he hauled sand to Stewart's customers in Kansas City. He had hauled about six or seven loads by 3:00 or 3:30 p. m. At that time he stopped on the plant scales and went to the scales house window on the Grand Avenue premises to report to one Petrie, Stewart's scales man, that there was a train blocking the road which prevented him from hauling another load before quitting time. After advising Petrie of these facts, Ward asked Petrie what he should do and Petrie, in accordance with long-standing custom, directed him where to load, to wit: to 'load there', indicating a place some 15 or 16 feet away from the mixer house, but on the premises at the Grand Avenue plant. Ward began to obey the instructions given him by Petrie and would have continued in the performance of these duties until quitting time had he not been then and there struck and injured on Stewart's premises by its company-owned truck driven by Curry in the course of Stewart's business.
Stewart is and for many...
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