*1 аccordingly judg of record, We no error find reversible affirmed, concurs; absent. Trimble, J., P. Bland, J., ment Respondent, Com Dagley, Beulah National Cloak pany Appellant.* and General Outdoor Adv. April City Appeals. Kansas 1929. Court of *2 Juris-Cyc. Appeal 3CJ, *Corpus Error, 1591, p. References: section 90; 1593, 1431, 4CJ, 53; p. 2304, p. 10; 1428, 525, n. section n. section n. p. 8; Servant, 39CJ, 1584, 1357, 1592, p. 1362, section n. section Master 815, 80; 45CJ, 223, p. 237, 20; Negligence, p. 826, 71; section n. section n. n. 68; 77; 312, p. 880, 875, 303, p. 834, p. 1262, n. section n. section section n. 68; 836, p. 1272, 35; 916, p. n. 8; p. 1267, 1341, section section n. n. sec p. 1363, n. 81. tion Trusty Pugh respondent. & Berger appellant. Berger Wylder
A. & L. and Morrison, Nugent, D. C. Johns of Counsel. injuries. suit was personal
BARNETT, C. This is a suit for again at amended which was tried on a second amended petition thus amended trial after the introduction evidence. maintained, alleged Company owned, that National Cloak and Suit Kansas; that City, operated in Kansas a merсantile establishment Advertising Company on the General Outdoor 12, 1925, December Cloak and on behalf of National doing work for and some a mer store, and over a window near Suit in its retail advertising company purpose counter. For chandise leaning against of the wall over the using the inside a ladder, plaintiff was a customer in resting the floor. The on window and purchase engaged store said near thе foot of said ladder whereby she was turned, merchandise. slipped ladder injured; slick; ladder that the floor was smooth and slipping resting keep from thereon and fastened to the floor thereon; Cloak working or that National falling, and a man was known and Suit knew due care should injury likely slip over and cause the ladder was to fall or turn Company, persons and Suit by, near National Cloak defendant plaсe plaintiff from a through clerks, negligently one took merchandise, her safety ladder show point to a near said negligently ladder or the presence to warn failed her injured; falling, likelihood of its reason thereof she Company negligently that National Cloak and failed to exercise likely fall ordinary people warn that the ladder care to negligently the ladder or failed to exerсise to secure care falling slipping position keep when the- to hold it in exercised; precautions to fall such ladder unless were *3 resting in the company the was ladder fastening was slick or secur upon a floor that smooth and without likely it; fall, ing by of facts it was to and did and reason said by ordinary knew or exercise care have the defendant the of could facts, and knew or exercise оf care could known said the plain place persons known the be at negligently plaintiff injured, tiff and warn of such was failed to danger. plaintiff most is to
The evidence favorable to the effect that Company plaintiff of National Cloak and Suit went into the store Kansas, in Kansas a clerk to the end of City, and was invited plaintiff buy- contemplated the store near the show-window where noonday. ing happened This about A ladder about merchandise. long top edge on the rested on floor and leaned ten feet the high eight The was feet show-window. show-window seven bottom rested on the floor four feet out the of the ladder about show-window, placed from the so the ladder was bottom angle degrees sixty perpendicular. from at an of about more the floors, in sweeping in its company, clоak and suit the The using sweeping compound oil, which and the habit of contained pine compound tendency oily the use of had to the floor make slick. The of the ladder did smooth somewhat bottom against any brace secured in manner: rest nor it cleated or depended gravity entirely upon those used ladder who the keep place. friction the in The ladder had re- ladder in position mained and condition since the workmen went to this working upon morning. ladder, A work in the man slipped plaintiff, for ladder and fell and struck some reason the injured. whereby she was Cloak and evidence disclosed that National Advertising Com- entered Outdoor into contract with General building.
pany sign of to install an electrical on the outside sign hung working had been man who was on and the necessary engaged wiring ladder in connect the, building sign. the electrical on inside with wires advertising company work did license to do electrical have a in City, Kansas, Kansas written and it had therefore entered into wiring. with contract Electrical do the proposal The written contract was in of a from the the form company electrical to the all labor and furnish material electrical-wiring the correct cloak installatiоn company’s City, Kansas, and suit provided store Kansas enlarging ampere pole capacity the service hundred three one ampere running pole capacity, two hundred three and for three No. 6 wires from a meter board the basement to terminate on top of with floor, the window switch near window on the first provided that all first materials should be class and installed according Regulations pass to. Underwriters Rules and and should city accepted inspection. proposal writing This the ad- vertising company, evidence was to the effect that defendant’s electrical company paid However, did work and was for it. Mr. Robertson, Advertising electrician for the General Outdoor Company, that he department testified was foreman electrical advertising company; was in that hе the store of cloak injury; day suit on the that he work went in the store at about ten minutes until nine the forenoon and that employees he took one of to work company’s men; with helper the electric he help his sent Murray men on helper, Sullivan, inside. It was one this who *4 slipped was on the íadder which Mr. and fell. Robertson tesified helper that he turned the over of Murray Electrical Company; “Murray anyone with him that allows and he used this to, man cost, paying helper to save men,” save extra for his agreed that to advertising save this cost he of to take one the com- pany’s employees him. company’s and use foreman present boys testified he was to “tell the how do work” the do; and just that he directed the men what to that he was there supervising and that at letting understood the time of the job supervise; was to he he “did not do of actual work do;” but told the others how to do it what to advertising company paid Sullivan the electric charge greater would price they have had if had hire supervisor man to place employee and a take the furnished by attorney foreman: asked the “ Q. gentlemen you you say you What do mean when to these charge supervisor? you give were Did orders and have Murray’s men?” “Yes, foreman answered: sir.” request gave plaintiff B, instruction as
At the court follows: you
“If place find from the evidence that re- at the time ferred to in evidence the floor where ladder rested was and slick floor, smooth fastened ladder was not to the Advertising Company using and that the General Outdoor ladder; and, said you
“If by facts, further find from the evidence reason of the if they existed, paragraph, set forth above ladder was likely to, injure and did, slip plaintiff or fall and while she was place evidence; at the and, to in the referred “ you If further find from the evidence that the General defendant Advertising Company knew, ordinary Outdoor the exercise of you have known, forth, care should of the facts if above set find they plaintiff existed, when place, taken to said went ordinary that said knew or defendant exerсise care persons should have known that plaintiff be and that place plaintiff said danger in time have warned from ladder, danger said if existed, plain such failed to warn so; tiff thereof if and, you “If further find from the evidence that of all the because foregoing you they facts, existed, if find the evidence defendant, Advertising General Outdoor Company, to exer- failed safety care plaintiff, cise for thе such defendant, failure of if fail, directly said did so caused her to be injured, you was, ladder, if she said then must return a verdict Advertising against Company, General Outdoor and in favor said Dagley.” plaintiff, iBeulah plaintiff against defendants and a verdict for both There was appealed. both
Opinion. nor General the National Cloak and Suit Neither Advertising court Company has the contention this Outdoor made contributory negligence plaintiff guilty as a matter of their, assignments of error appellants law. Both state that refusing peremptory sustain a instruction court erred assignment and the second nature of a demurrer to the evidence Company states that by National Cloak and Suit of error *5 submitting jury because the evi- erred in the case to the court negligence part or establish on the dence did establish tend to сompany part of anyone. cloak and or on of the suit question whether company cloak suit as to in its brief raises point that or company not that and also raises Advertising General Outdoor it not liable for the acts of the subcontractors, ground that on the its servants or advertising The adver- company independent contractor. was an tising Murray Electric company point raises that thе its brief independent was an for whose acts and omis- contractor responsible. in- advertising company We are sions the was not agree respondent only to clined to with the that defenses as negligence company that what- are the cloak and suit claims that advertising negligence ever was must be attributed to the there agents company, its com- subcontractors, pany negligencе claims that that be attributed to the electric must company. theory upon was not drawn agent of the cloak and suit It is the
duty keeper keep of a premises store to into which he invites reasonably his prospective customers and in a customers con safe dition, anything dangerous and if building there be in the store duty is the keeper presence store warn to his invitees of the danger part premises to withdraw where the danger occupation exists from by setting their up use barriers by adopting some other means will plainly indicate part premises open to customers. C. J. [45 to The evidence in this case shows that some one inclusive.] placed a part ladder in building of the store customers expected were go. placed upon The ladder a floor that was frequently oiled, angle and it leaned at such would not slip of its weight, own slip engage if a man should in work standing while upon rungs unless ladder was se plaintiff cured. The go invited the defendant to the far part of the store where exposed injury she would be if the slip, ladder should and she give was there invited to her attention merchandise, but not jury ladder. The right find defendant cloak and negligently suit failed to maintain of the store where customers werе invited in reasonably safe condition, because the ladder had stood unstable condition from the time the electricians went to work in morning until noonday. sometime near fully agree We independent was an keeper contractor.' may But store not relieve himself of the duty to use keep premises reasonable care to his reasonably safe condition for the use of his invited customеrs pros and his pective by contracting customers with others and relying upon necessary precautionary them to take the measures. C. J. [45 Pooler Sargent L. 1915F, 1125; R. Lumber A. Golson v.
6? 42 Mrg. Y. S. Covington 226; Lennon, 205 N. Ala. Pitcher Thompson, Fed. Couer d’Alene Lumber Co. v. 8.] finding justify think We there evidence to was sufficient by position in its unsafe and unsecured the the ladder advertising used Murray Company. company Electric It is and not the written, whereby contract was in evidence true introduced wiring advertising Electric for contracted to do certain the company being wiring the ladder used install the injury However, the time when the occurred. it is not true that question when a written then contract is introduced evidence the negligence complained as to whether or not the of was of a independent altogether servant or an contractor is lаw a matter of If be determined court. evidence man the shows the one sought charge negligent has done a act and it is another with liability rule, respondeat therefor under the than if superior, there abe written con contract between the two the construction of that jury, tract is matter for the parties and not the and the court permitted give the will not contract be their conclusions as rеlationship to whether or is independent the that of servant contractor. paper But to hold that what was said on con should clusively regardless control, done, what was an in be employ vitation to those responsibility who labor to evade for their negligence by written with recitations straw men and insolvents regard special without competency training; to their all of slightest could be done without inconvenience if the employers might nevertheless direct work, and control the the means and details as well as the result, waiving without the defense that independent act was of an contractor. In this regular case one Sullivan was employee advertising of the com pany. He was under control and directions Robertson, of one employee advertising another of the company аnd its foreman. wiring. Robertson ordered Sullivan to do help No foreman superintendent present electrical being work done. Sullivan his orders Robert received superintended son. Robertson work and told all the workmen paid by what to do and how to do it. Sullivan was acquainted He was even with super the officers or company, intendent of the electric but all of his work was done by Robertson, ordered because it so who was his foreman as employee advertising company. Ye think in very strong ference contract between company and the electric was a device to pay evade the tax, license it contemplated of the Kansas ment parties that the foreman superin should work and furnish tend and direct the labor. Appellants held that an independent cited cases wherein one is con notwithstanding whom he contracts tractor fact the one with right superintend see that is done work, reserves recognize according doctrine declared in fully to contract. "We goes further eases. if whom work is done those But the one" doing right as to control the mode the work reserves the result, servant, he does the work is a well as then who *7 Co., independent v. not an contractоr. Securities Const. [Aubuchon Veterinary 252 187; Joseph Laboratories, 291 W. v. S. Lawhon St. 44; App. 19; Fitzgerald 133 Card Kiser v. v. Suppe, S. W. Mo. 257 514; App. Co., 207 Mo. Borah v. Zoellner Motor Car well, 145; Blase, 648; Murray, 94 Simmons App. S. W. O’Neill v. v. Mo. 949; 1009; 234 192 S. W. Dolph, S. W. Flori v. Hoelker v. American Light 296 W. Louis Press, 1008; S. Thomassen West St. Water & 979; Semper 273 S. Press, 278 v. American W. Co., S. W. 186.] company and contract between the The provided fur the electric Electric and correct installation оf the electric nish labor material Standing itself, implied wiring. this contract the electric wiring way only in company would install the its own and subject approval advertising company. of But result was to the furnish the electric did all the labor and it in not did not wiring way. advertising company stall in own fur its nished of labor and installation should directed how the accomplished. Appellant be claims that Sullivan was loaned advertising company to the electric he was being company. for the The evi time the servant electric advertising company was that retained dence control and the right to Sullivan should do and how he it. direct what should do employee was therefore the of the electric He [Standard 215; 212 201 W. Anderson, Bryant, Oil Co. v. U. S. Scherer v. S. 208 N. Hanrahan v. New York Edison Y. S. 633.] Advertising Company assign in Appellant Outdoor its General permitting рlaintiff ments error states court erred in of that the allege petition amend her after the close of the evidence so as alleged petition upon than that in the a different of action cause refusing trial, ap case and erred in to sustain which the went plea surprise pellant’s amendment, of because of such and erred refusing discharge jury and continue the case. This is in assignment given оnly of this of error. No reasons mention are assignment support under points cited in of this nor authorities argument. assignment authorities or the deemed to regard sufficiency to the Without the brief to abandoned. be present they decision, cannot points be considered us these petition upon amended the second reason that for the existed before the to trial as it amendment is went parties not exceptions. This court compare bill of cannot in the found be preceding the as it existed petition with the amended amendment whether not amendment thus determine forth preceding petition set in properly allowed unless Mfg. Co., v. Brown Evans exceptions. bill Farish Co. [The 230 S. W. authorities cited.] Advertising Company
Appellant assign General Outdoor in alleges refusing give of error court erred in ments aрpellant’s B, giving plaintiff’s A-1 instruction instruction giving Company’s C, D, and in National Cloak and in upon struction are based for the reason said instructions law No further mention is the evidence the case. made assignments points these of error and authorities except giving argument, concerning B. of instruction permitted recovery upou It is contended that instruction action petition, different cause of than stated in purview does fall within the either the evidence or the permitted petition, recovery upon presumption negligence petition pleaded specific negligence. when the in struction is set the statement. It submits the out identical cause *8 alleged petition. of action It action cause of re vealed the evidence. We do understand not statement permitted neg this recovery upon instruction presumption ligence. certainly proceed not upon instruction does the res loquitur ipsa theory, neg nor does assume that it defendant was ligent. requires jury every necessary to find each fact It permit finding requires negligence, addition it thereto, jury negligence. to find those did constitute facts that, National Company Cloak Suit claims the maintenance of the floor in condition not оf its then itself negligence, and light past experience that in the Cloak Company National and Suit allegation did fail to exercise There was care. .no maintaining oily the cloak and suit an charge negligently permitted, floor. The a ladder it nothing upon oily with stand friction floor gravity although position, hold obvious it was the ladder fegMMl it sh'cP$l€ angle great slip such a if a man at it; standing upon obvious work while that was that the ladder wals being so the cloak and suit used, invited its inspect building merchandise in that customers Cloak and this condition existed. The National did past experience act so far light in the as this record is con- permitted evidence that it before There is no ever a ladder cerned. building precarious remain in store in such its condition. The that he used ladders before without Sullivan testified witness they securing slipped. had not them and This would not establish suit company the cloak of law that a matter free as particular this negligence upon stand permitting this ladder degrees from sixty angle of at least floor in then condition this engaged in upon it and a man stood perpendicular, while National Cloak particular Appellant’s statement work. hardly safety is plaintiff’s insurer of and Suit was not an claim place in whole record where relevant. There is no directly an insurer. it was made either inference sup- negligence. was evidence to pleaded specific There port allegations proceeded instructions petition, and the theory petition. upon in the outlined Lee, C., judgment is affirmed. concurs. hereby foregoing opinion C., PER CURIAM:—The Barnett,
adopted opinion except Trimble, as the court. All concur, J., P. absent. App City, Missouri, Powers, Respondent,
Nannie v. Kansas ellant.* May 20, City Appeals. 1929. Kansas Court of