Ward v. Scott County Milling Co.

• Decision Date: 07 March 1932
• Docket Number: No. 4990.,4990.
• Citation: 47 S.W.2d 250
• Parties: WARD v. SCOTT COUNTY MILLING CO.
• Court: Missouri Court of Appeals

47 S.W.2d 250

WARD v. SCOTT COUNTY MILLING CO.

No. 4990.

Springfield Court of Appeals. Missouri.

March 7, 1932.

Appeal from Circuit Court, New Madrid County; John E. Dunklin, Judge.

"Not to be officially published."

Action by Bert Ward against the Scott County Milling Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Bailey & Bailey, of Sikeston, and Gallivan & Finch, of New Madrid, for appellant.

J. M. Massengill, of New Madrid, and Ward & Reeves, of Caruthersville, for respondent.

BAILEY, J.

This is an action to recover damages for personal injuries alleged to have been sustained by plaintiff on the 8th day of July, 1930, while in the employ of the Sikes-McMullin Grain Company, at its grain elevator located at Kewanee, Mo., where defendant also had an elevator.

Plaintiff alleges in his petition that defendant corporation was engaged in the general milling business and operated a warehouse and elevator at Kewanee, Mo., for the handling of wheat and other grains, and had in its employ one U. P. Daugherty, as its manager, agent, and servant in control of and in charge of said elevator and warehouse; that on the 8th day of July, 1930, plaintiff was engaged in loading wheat for the Sikes-McMullin Grain Company, into a box car that stood on a side track and was standing on a platform about four feet high extending from the elevator and warehouse of the Sikes-McMullin Grain Company over to said side track; that above said platform, and in connection with it, was a grain chute used for conveying grain from the elevator to box cars on said side track; that there was an iron exhaust pipe extending from said elevator about four feet and near or under said platform; that the elevator of defendant was on the same side track, but located to the south of that of the plaintiff's employer and across a public highway; that: "When he was standing about three feet from said elevator and on said platform, the defendant through its agent, servant and manager, the said U. P. Daugherty, without the knowledge or consent of the plaintiff, and without notice or warning to him, by means of a tractor and cable or other force and power, negligently and carelessly, pulled, rolled and caused to be moved and travelled northward to and across said public highway, a box car on said side track and switch, to, against and upon, with great force, the after-mentioned box car that the plaintiff was then and there loading with wheat aforesaid, thereby knocking and moving said car that the plaintiff was loading, and thereby tearing and throwing down the said platform and its parts and connections that extended over to and into the said car that the plaintiff was loading, and violently throwing and causing the plaintiff to fall to the ground and on said iron exhaust pipe; thereby directly giving to and causing the plaintiff serious and permanent injuries, etc."

Defendant's answer, after the trial court had sustained a motion to strike one defense pleaded, consisted of a general denial. Upon these issues trial was had to a jury and resulted in a verdict and judgment for plaintiff in the sum of $4,000, from which judgment defendant has appealed.

Error is assigned in the refusal of the trial court to give defendant's instruction in the nature of a demurrer to the evidence offered at the close of the whole case. There seems to be no difference of opinion as to the facts connected with the accident itself nor as to plaintiff's injuries as a result thereof. The evidence shows plaintiff was working as alleged in his petition; that while he was so engaged U. P. Daugherty, who was in charge of the elevator owned by defendant, started to pull a loaded car down the track north from defendant's elevator by means of an iron cable attached to a tractor owned by defendant, and did thereby start said car moving to the north in the direction of the McMullin Grain Company's elevator about three hundred feet to the north; that the track was downgrade, and after having started the car, Daugherty disconnected the cable in order to prevent the car from overturning the tractor; that the car was permitted, without warning, and without any person thereon to stop same, to run down and strike the car at which plaintiff was working with great force, moving the car and carrying the grain spout, mentioned in the petition, with it and at the same time tearing down the platform on which plaintiff was working, throwing plaintiff so that he fell against the iron exhaust pipe located under and extending beyond the platform, whereby he received the injuries complained of.

There is no question as to Daugherty's negligence. The whole controversy in this court is in regard to the issue of whether or not Dougherty was the agent and servant of defendant at the time. Defendant asserts he was employed by an independent contractor. Plaintiff maintains he was in the employ of defendant and in charge of the elevator and warehouse as defendant's manager, agent, and servant.

Plaintiff's evidence on that branch of the case was about as follows: The evidence showed that defendant owned the elevator and warehouse where Daugherty was in charge on the day of the accident; that it also owned the tractor which pulled the car along the switch track, and that this car collided with a car at which plaintiff was loading grain from the elevator of the McMullin Grain Company; that all grain run through the elevator of defendant was shipped on defendant's order and most of it billed out to defendant at its mill, from the defendant at its elevator, by Daugherty, and that the particular car of wheat, the movement of which caused the accident, was the property of defendant; that all wheat purchased at the elevator was paid for by defendant and shipped as directed by defendant. There was no wheat in the elevator at the time of the accident, except that which was being run through from wagons and loaded in the cars.

Plaintiff is entitled to the benefit of any evidence offered by defendant that supports his case. Uriell Daugherty testified on behalf of defendant, as follows:

"At the time of the alleged accident on July 8th, 1930, I was loading wheat. Mr. Hetlage hired me and paid me. I never got a check from Scott County Milling Company. I was weighing grain and running the elevator and loading grain. Different ones helped me. At that time Lynual Woods and Monroe Bishears were helping me. I hired them. Mr. Hetlage paid them. I started this car with a tractor and chain. It begun to move and looked like it was going to turn the tractor over and I unhooked the log chain and throwed chunks under it. It was a loaded car. The car moved north one hundred feet and bumped into another car; it bumped an empty coal car and this coal car bumped the car of Mr. Ward's. I did not see anybody down there and did not see what actually happened to Mr. Ward. I went down there. * * * I operated the elevator up there on July 8th, 1930. It was the elevator of Scott County Milling Company. There wasn't any wheat in the elevator. We were running in on through the elevator into the car. It was brought in on wagons and I was shipping it out. I guess I was loading it for Scott County Milling Company. That was along about the first wheat that was loaded out. After that we loaded for the rest of the season until about the first of August. I usually bill out the wheat. I billed it from Scott County Milling Company to Scott County Milling Company from the Frisco Depot. I billed it out `Scott County Milling Company,' where it was going, and signed `Scott County Milling Company, U. P. D.' I billed it out in their name, by me for them, most of it was. Mr. Hetlage, a merchant in Kewanee, hired me. He did not own the elevator. Scott County Milling Company owned the tractor. I was paid by Mr. Hetlage. I don't know where he got the money. I didn't say where he got it. I can't swear that he got it from Scott County Milling Company. I didn't see it. He gave me his check. I can't swear that he got the money from the Scott County Milling Company. He never told me where he got the money.

"Q. Do you know how Mr. Hetlage came to be paying you? A. He hired me and I guess they hired him.

"Q. And then you turned around and hired the other fellows? A. Yes, sir.

"Q. You and these other fellows were loading out wheat for Scott County Milling Company? A. Yes, sir.

"Q. And billing it out to them? A. Yes, sir."

Fred Hetlage also testified on behalf of defendant, as follows: "My name is Fred Hetlage and I live at Kewanee. I remember the accident to Mr. Ward at Kewanee in July. I don't remember the exact date, but prior to that time, sometime in the fall before this in 1929, I made an arrangement with the Scott County Milling Company to take care of the elevator there. I was paid by the Scott County Milling Company, so much commission, commission on the amount of grain we handled. Mr. Daugherty operated the warehouse. I employed him. There was nothing said about the elevator warehouse. I just handled it on the commission, I suppose, like other warehouses and they never made any charge against me. I say I hired Mr. Daugherty. Mr. Daugherty looked after the other help. That was our understanding. He was to look after the work on a commission. We split the commission. Mr. Daugherty loaded the car, bought the wheat, looked after the work, and billed out the wheat."

Cross-examination: "I say Mr. Daugherty bought the wheat. Scott County Milling Company paid for it. Mr....