Williamson v. Southwestern Bell Tel. Co.

• Decision Date: 08 March 1954
• Docket Number: No. 2,No. 43568,43568,2
• Citation: 265 S.W.2d 354
• Parties: WILLIAMSON v. SOUTHWESTERN BELL TEL. CO
• Court: Missouri Supreme Court

Page 354

265 S.W.2d 354

WILLIAMSON v. SOUTHWESTERN BELL TEL. CO.

No. 43568.

Supreme Court of Missouri, Division No. 2.

March 8, 1954.

Russell J. Horsefield, St. Louis, for plaintiff-appellant.

J. Porter Henry, Green, Hennings, Henry & Evans, John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for respondent.

BARRETT, Commissioner.

Mrs. Grace H. Williamson was injured when the automobile she was driving on Highway 30 in Franklin County was negligently struck by a Chevrolet truck traveling in the opposite direction, causing a pruning hook on a rack on the left side of the truck to crash through the windshield and strike her head. To recover $150,000 damages for her injuries Mrs. Williamson instituted this action against Southwestern Bell Telephone Company and Ross N. Lillard, doing business as Ross N. Lillard Tree Service. Upon the trial of her case the court directed a verdict in favor of Southwestern Bell Telephone Company and the jury returned a verdict against Mr. Lillard in the sum of $60,000. The plaintiff filed a motion for a new trial as to the telephone company which was overruled. Subsequently the plaintiff filed a stipulation of dismissal with prejudice as to Mr. Lillard and, accordingly, the court entered a judgment of dismissal as to him and, after proper notice, the plaintiff perfected her appeal as to the telephone company. Because of the stipulation, and its recital that as to Mr. Lillard the case 'has been settled and compromised,' and the judgment of dismissal with prejudice, the telephone company has filed a motion to dismiss the appeal as to it upon the assigned ground that the stipulation of dismissal was pursuant to a settlement with Mr. Lillard, and her action against the telephone company being dependent upon the relationship of master and servant between Mr. Lillard or his employee, Howard, and the telephone company, the judgment of dismissal with prejudice constituted an adjudication against her on the merits of her cause of action, thereby rendering the question involved upon this appeal moot. In view of the conclusion we have reached upon the merits of the appeal, it is not necessary to consider the motion, and it is overruled.

The circumstances out of which this litigation arose are these: In 1951 Southwestern Bell Telephone Company was engaged in the installation of new and additional telephone lines over a rather large area in the vicinity of St. Clair. In part, the new installation involved the furnishing of telephone service to new subscribers. Plans for the construction of the new lines were prepared by the telephone company's engineers and turned over to Mr. Robert A. Campbell, the company's supervising construction foreman, for execution. For the most part the new lines were to be installed upon the poles and right of way of the Union Electric Company. The telephone company's own crews, under the general supervision of Mr. Campbell, strung the new wires and made the new installations. The new installation necessitated the clearing of the right of way of trees and brush, ten feet on each side of the right of way. The engineers' plans included detailed plats indicating the trees to be removed, the trees to be trimmed, and the brush to be cleared along the right of way. Upon receipt of the plans Mr. Campbell went over the proposed line with Mr. Lillard and Mr. Stauf, professional tree trimmers, and they made a survey of the work to be done, as indicated on the plats, the number of trees to be removed and the number of limbs and stands of brush to be removed. After the detailed survey Mr. Lillard and Mr. Stauf submitted written bids for the work to be done as indicated on the forty-five plats, the removal of 320 trees, the trimming of 591 trees, and the cutting of 397 'squares' of heavy brush. Mr. Lillard's bid of $6,950 being the low bid, Mr. Campbell let the contract to him, and on the 25th day of September 1951, the telephone company and Mr. Lillard entered into a written contract for the clearing of the right of way.

In addition to the consideration of $6,950 and the clearance of the right of way, as indicated on the numbered plats, by 'Ross N. Lillard Tree Service of Webster Groves, Missouri,' the contract provided that 'The Contractor shall dispose of all timber and brush in the manner arranged for by the Telephone Company's representative and with the property owners.' Mr. Lillard was to do the work indicated on the specified, detailed plats and 'The Contractor shall furnish all labor, tools, equipment, vehicles, and supervision required' to remove the trees and to perform the work. The contractor was required to pay any damage to livestock in the course of the work and to take out and carry 'Contractors' Public and Employees' and Owners contingent liability insurance,' with limits of $15,000 and $30,000, and he agreed to indemnify the telephone company for any damage to its property and to indemnify and defend the telephone company for any suit or claim against it for injury to the person or property of others due to his neglect. And, 'The Contractor shall re-execute at his own expense any work that fails to conform to the requirements of this contract * * *.'

Mr. Lillard called himself 'a tree trimmer.' He had been in the business for several years, specializing in work for public utilities. He operated over the entire state of Missouri and sometimes in East St. Louis and had about ten competitors over the state. In November 1951 he had six trucks operating and four or five crews on different jobs, a crew consisting of a foreman with a truck and from three to seven workmen. His assistant and superintendent was Ray Huffine of Republic. Huffine had employed John Howard as a laborer while a crew was working at Neosho. Later Huffine promoted Howard to the job of foreman and sent him to St. Clair to clear the right of way under the contract. Mr. Lillard furnished Howard with a truck and the necessary tools and Howard employed the crew to perform the labor. The week preceding the accident the crew, all living in or near St. Clair, consisted of Howard, Bobby Dillinger, Hansel, Sohn and Donald Ware. Howard picked the crew up each morning in St. Clair in the truck and brought them back at the close of each day's work. He sent a weekly payroll to Mr. Lillard in Webster Groves, and Mr. Lillard, after deducting withholding and social security taxes, mailed the checks to Howard at St. Clair for delivery to the members of the crew. November 15th was a chilly, rainy day and Howard and his crew quit work about four-thirty in the afternoon. During the day Howard and some members of the crew had been drinking port wine mixed with rum. On the way to St. Clair they stopped at Lonedell and drank some beer, and a few minutes later, with four of them in the cab of the truck with Howard driving, the truck collided with Mrs. Williamson's automobile.

As the appellant urges, the sole question upon this appeal is the nature of the relationship between Mr. Lillard and Howard and the Southwestern Bell Telephone Company, and in this connection, the appellant urges that the trial court erred in directing a verdict in favor of the telephone company and in overruling her motion for a new trial. It is first urged, since the telephone company is a public utility, incorporated under Chapter 392, RSMo.1949, V.A.M.S., it is 'impressed with a public use,' exercising franchise rights and privileges which it may not delegate to an independent contractor and thereby relieve itself of liability for the tortious acts of the contractor. It is urged that the work could only be accomplished by 'the right of access or easement resting in the employer' and, therefore, the contractor remained the agent of the employer. It is said that the clearance of the right of way where existing lines were in service and additional lines were being placed in service and the operation of the truck by Howard were a 'necessary and essential part of the rendition of adequate service to the customers, which was required of the Telephone Company by Statute' and could not be delegated to an independent contractor. In addition, it is urged that the work to be done, the clearing of the right of way and the operation of the truck by Howard, was accompanied by unreasonable risk of injury to others, therefore the relationship between the parties to the contract remained that of master and servant and not independent contractor. In general, the appellant invokes certain of the exceptions to the rule that an employer of an independent contractor is not liable for the contractor's negligence with respect to the improper manner in which the contractor executes the details of the work. Restatement, Torts, Sec. 426. The principal exception relied upon is that 'An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority * * * is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.' Restatement, Torts, Sec. 428; Annotation 28 A.L.R. 122.

In a sense, every act of a corporation is done under its charter, Boyd v. Chicago & N. W. Ry. Co., 217 Ill. 332, 337, 75 N.E. 496, but it does not follow merely because the corporation is a public utility that all its acts or contracts fall within the category of the nondelegable duties granted by the franchise. If a duty imposed by statute is relied upon, 'In order that the employer may be charged with liability on this ground, the terms of the statute * * * in question must be of such a tenor as to subject him to a definite obligation in respect of the matter, or matters, to which the compact had relation.' Annotations 23 A.L.R. 984, 989; 23 A.L.R. 1016; 23 A.L.R. 1084. The comment on Section 428 of the Restatement of Torts with respect to franchise rights is that 'The rule stated in this Section does not apply to...