Young v. Sinclair Refining Co.

• Citation: 92 S.W.2d 995
• Decision Date: 17 February 1936
• Docket Number: No. 18474.,18474.
• Parties: YOUNG v. SINCLAIR REFINING CO. et al.
• Court: Court of Appeal of Missouri (US)

92 S.W.2d 995

YOUNG v. SINCLAIR REFINING CO. et al.

No. 18474.

Kansas City Court of Appeals. Missouri.

February 17, 1936.

Rehearing Denied April 6, 1936.

Appeal from Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be published in State Reports."

Action by Charles Young, a minor, by Icel M. Young, his next friend, against the Sinclair Refining Company, T. D. Bryant, and another. Judgment for plaintiff, and named defendants appeal.

Affirmed.

Marley & Marley, of Kansas City, for appellants.

Hipsh & Sadler, of Kansas City, for respondent.

REYNOLDS, Commissioner.

The plaintiff, a minor, sues by his next friend to recover actual and punitive damages against the defendants — the Sinclair Refining Company, a corporation, and T. D. Bryant (appellants herein) and one A. A. Krogsdale — growing out of an alleged willfully, wantonly, and maliciously made assault upon him by the defendant Krogsdale about February 27, 1933, at Kansas City, Mo., alleged to be an agent and servant of his codefendants, the appellants herein, and of each of them, while acting within the scope of his employment and authority.

From a judgment in favor of plaintiff against all of the defendants for actual damages in the sum of $500 and for punitive damages in the sum of $500, the defendants Sinclair Refining Company and T. D. Bryant, after separate and unsuccessful motions by each for a new trial, prosecute this appeal. The defendant Krogsdale does not appear to have joined in such appeal.

The petition sufficiently states a cause of action against all of the defendants, and its sufficiency is not questioned in any respect on this appeal. It is therefore unnecessary to set it out or to make any further reference to it.

The defendants Sinclair Refining Company and T. D. Bryant made separate formal answers, presenting general denials in defense. No answer was made by the defendant Krogsdale so far as is shown by the record.

There is evidence in the record tending to show that Sinclair Refining Company is engaged, among other things, in operating gasoline filling stations in Kansas City, Mo., at various locations; that it erects and constructs such stations for its own use in such business; that the defendant Bryant is a building contractor and as such engages in the construction, erection, and completion for use of filling stations of the character required by the Sinclair Refining Company and, at times, constructs such stations for such company; that the defendant Krogsdale is engaged as a cement finishing contractor and furnishes the labor necessary for the completion of cement work in connection with the construction of filling stations and other buildings and construction work; that, during the early part of the year 1933, the Sinclair Refining Company, being desirous of a filling station at Thirty-Ninth street where it intersects Broadway in Kansas City, Mo., entered into a written contract with defendant Bryant to construct such station upon a site therefor designated, including curbs, pavements, and walks to be used in connection therewith, according to plans and specifications prepared by it; that the defendant Bryant in turn entered into a written contract with defendant Krogsdale to furnish the labor necessary for the completion of the cement work according to the plans of the refining company; that such contract was made upon a written bid submitted by defendant Krogsdale to defendant Bryant to furnish such labor for $400, and accepted by defendant Bryant on February 20, 1933; and that defendant Krogsdale thereupon undertook the performance of such contract and, about February 27, 1933, started running a cement curbing at the site chosen for the erection of the filling station. At about 8 o'clock p. m. of that date, the plaintiff, a boy about twelve years of age, while walking west on the south side of Thirty-Ninth street, crossed to the west side of Broadway; and, as he continued west on Thirty-Ninth street, along where the sidewalk had been torn out by the defendant Krogsdale in the prosecution of his contract, upon an old curbing which at that time had not been torn out but which remained along the side of the street, defendant Krogsdale began to call to him and started chasing after him and threw a hammer and struck him on the leg, injuring him. It was, however, denied by the defendants that the said Krogsdale struck the plaintiff with a hammer or with anything else; and it is contended by them that plaintiff had stepped from the old curb on which he was running upon the fresh, green cement curb just made by defendant Krogsdale which he had joined and connected with the old curb; that plaintiff broke it; and that, thereupon, being called to by defendant Krogsdale not to get on the new curb, plaintiff became frightened and ran diagonally across the lot from the curb into or against a barricade which had been built by such defendant upon or around the lot upon and about which the improvements were being made by him or into some other object and fell, receiving in such fall the injuries to his leg complained of. Immediately upon plaintiff's injury, he ran home, a short distance away; and his mother and his aunt, within a minute or two after such injury, called at the place where the work was being prosecuted by defendant Krogsdale with some policemen to see him and to investigate the cause of the trouble, when defendant Krogsdale stated to plaintiff's mother that he had hit the plaintiff. He further stated to plaintiff's aunt, who accompanied plaintiff's mother, that he was there to protect the property. Defendant Krogsdale denied having made such statements to plaintiff's mother and to his aunt or to either of them, but admitted that he told plaintiff's mother that he had made plaintiff run. Plaintiff's injuries do not apear to have been serious or to have been of any permanent nature. Dr. Peter F. De Maria, who was called to attend plaintiff, testified that he found a hematoma on the left side of plaintiff's leg which he explained to be a bruise on the skin with a hemorrhage or a gathering of blood under the skin and in the subcutaneous tissue covering a space about four inches in width and four to five inches in length. The witness testified that, at the time he visited the plaintiff, the plaintiff was suffering considerable pain and could not bear any weight on the leg. The witness required plaintiff to remain in bed a few days and his wound to be treated with hot applications until he was relieved from any discomfort from his injuries.

There is an issue appearing in the evidence as to whether defendant Krogsdale was an independent contractor or an agent or servant of his codefendants, the refining company and T. D. Bryant, or of either of them; and, on such issue, there is evidence offered by plaintiff tending to show that defendant Bryant was present during the progress of the work and at all times directed defendant Krogsdale when and where to lay the cement and assisted him in setting and driving stakes for that purpose. There was also evidence tending to show that an agent or representative of the defendant refining company was present on the job practically all of the time and that he directed the method of doing the work.

The contract between the defendant refining company and the defendant Bryant, by which defendant Bryant agreed to furnish all labor, materials, equipment, and services necessary for and incidental to the construction of the station in accordance with plans and specification submitted by the refining company, was introduced in evidence.

The written bid of the defendant Krogsdale, to furnish the labor for the completion of the cement work according to the plans of the refining company, together with the written acceptance of such bid thereon by defendant Bryant, was introduced in evidence.

The oral testimony of defendant Krogsdale was to the effect that he was an independent subcontractor and had no relationship otherwise with his codefendants or either of them, and that he employed and paid his own men. The testimony of defendant Bryant was to the same effect. At the close of the plaintiff's case, the defendants Sinclair Refining Company and T. D. Bryant, each separately, requested an instruction in the nature of a demurrer directing a verdict. The request of each was denied. At the close of the whole case, such requests were renewed and were again denied by the court.

The cause being submitted to the jury, a verdict was returned for the plaintiff for $500 actual and for $500 punitive damages, upon which verdict the judgment hereinbefore noted as appealed from was rendered.

Opinion.

The appellants make numerous assignments of error, relating chiefly to the refusal by the trial court to give certain instructions requested by them (among which are instructions in the nature of demurrers directing verdicts in their favor requested by them at the close of the whole evidence), and to the giving of certain instructions by the court in behalf of the respondent, and to the ruling of the court with respect to objections made by them to various parts of the argument by respondent's attorney to the jury.

1. The first point made by appellants is that the contract between Sinclair Refining Company and T. D. Bryant and the contract between T. D. Bryant and A. A. Krogsdale establish, as a matter of law, that the said Krogsdale is an independent contractor; that, by reason of such fact, the separate peremptory instructions requested by appellants at the close of the whole evidence, directing verdicts in their favor, should have been given; and that the court committed error in refusing them.

An "independent contractor" has been defined in general terms by the Supreme Court to be one who renders service in the course of an occupation representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished. Fink v. Missouri Furnace Co., ...