*1 Suрreme Yol. Couict Joseph Hoelker, Estate Hoelker, Administratrix Kate Appellant. W. 1008. S. Press, American May Banc, Court en Independent Estoppel: By 1. defendant Contractor: Instructions. NEGLIGENCE: submitting corporation, by receiving asking an instruction jury the to the issue the whiéh struck and whether driver of the motor injured pedestrian contractor, independent’ estop the itself was an did not contending that its sus- demurrer to case should have bden ground the tained driver even contended the a matter law that that the evidence shows as anwas contractor and therefore defendant is not liable though injury. having negligence the driver’s caused the defendant throughout servant, the trial that the driver was not its independent contractor, court, overruling and the trial de- defendant’s evidence, necessarily having murrer to' the ruled there was evidence n required question jury, which fendant was the submission of vital to the de- compelled go jury issue, asking to to the on that and in receiving submitting jury an instruction the issue to the did not waive its demurrer, authorizing as a appeal but is entitled to contend on there was no evidence jury, the submission of that issue to but that the evidence .independent- matter of law shows driver was contractor. .an Undisputed 2. INDEPENDENT CONTRACTOR: Mаtter of Law: Pacts. question person engaged doing The pendent facts, whether a certain work is an inde- necessarily contractor depend upon each case must its own applying give and in varying the rule courts heed to circum- bearing upon question rendering stances the-person whether the- service represents only employer work,- will of his as to the result of the produced. not as puted independent contractor, puted the means to which result If the facts are undis- may the court declare person as a matter of law whether such is an- merely But servant. where the facts are dis- proper jury course is to proper submit the. to the instructions. employer -:3. Tests. The inspect -of the the work to be done, right discharge discharge person employed to do the work or to re- quire employed by him, payment, of'someone manner payment the character thing done, of the unit of calculation of ownership appliance performance work, used in the of the independent or the fact person doing usually the work occupation, follows an not, singly collectively, are pendent sidered -or a conclusive test that the rеlation inde- particular case; contractor obtained in the but all are to be con- only determining as aids in person engaged whether the do particular The engaged.' agent other, work was the principal. or was himself a general person determinative test is whether the who did the work was produce result, doing certain subject the work was not party to the control of the other as to the means or pro- methods used in ducing the result. Delivery Newspapers: Question 4. -: Jury. for An automobile injured pedestrian struck and moving as he was from the sidewalk to car, brought board a street damages and suit against for the defendant corporation, automobile, by publisher newspaper. was the of a The driver of the arrangement, engaged oral newspapers newsboys to deliver designated corners, at certain day. street five times each The driver was required cycle, to have a motor with an attachment or side car in which to carry papers, pay repairs upon cycle, was to for was to report newspaper prepared at the office at fixed hours papers to receive the n 1927} - HoeijKer v. Amebican Press. corners, given newsboys designated at the them to deliver newsboys designating papers naming the number of to be
-cards day each, the order to He was and was receive six dollars a work. delivered to particular reach the instructed as to what streets 'to travel newsboys, travel, employed time, definite fast nor how *2 satisfactory. subject discharge did if his work was not He and was other delivery cycle, previously de- work with his motor and had not done Held, reasonably livery facts that work was the driver was inference these work. that the could drawn from performance means used in of the the control the the n by defendant, question and exercised and the whether assumed contractor, agent or an under the control of defendant, jury one for was the to determine. Cycle: Warning: by 5. NEGLIGENCE: Motor Precluded Plaintiff’s Testi- mony. testimony cycle, striking plaintiff, by plaintiff The of the called driver of the motor witness, as his conclusive self or other that he sounded horn before is not the upon plaintiff, show, can, by he if is entitled he either him- witnesses, that the horn was not sounded. Negative Testimony. -: -: 6. -: The-actual or relative testimony witness, negative the a of mere of hear a value he did not that warning cycle pedestrian, of the of sound or depends upon horn which struck the particular depends upon the circumstances of case. the hearing, person good whether the witness a of was the distance was he cycle, noises, from the motor there other things whether were whether other n attention, plaintiff distracted his his and the And like. where testifies that good, stepped hearing was that he from the he sidewalk looked in sounding horn; that heard no both and the and the driver directions of cycle, although plaintiff’s witness, of the motor testifies that he sounded the twenty-five safety him, post when he was feet from nearest and horn that after sounding thirty striking plaintiff, he ran feet before it cannot be testimony as a ruled matter of law that that he heard no sound probative force, question of horn is of no but the whether the horn jury. was one sounded is Speed: Contradictory -:7. -: Statements. Contradictions in plaintiff’s testimony cycle as to whether saw the motor before it struck him, speed traveling, wholly destroy at which it was will not traveling hour, that it was ten miles an where he had been a years eight street cleaner for speed or nine and was accustomed to observe the street, vehicles dragged of and testifies that he and and was street, drаgging- body rubbed over the that tore the flesh from his knee, leg apd both bones of his left were a broken way little below the that he speed estimated the from “the it hit me” and that “it didn’t take no time until it me.” hit Degree 8. -: the Act of 1921 -: -: Statute: Ex. of Care. Under 19 of Section (Laws Sess., 1921, pp. 76, 107), which was determined to Reis, vehicle, be constitutional in Lauck v. the driver of motor a attempts spáce who drive between a street car halted on to take passengers street persons and the sidewalk coming from which are board car, required cautiously, to slow down and which means that .move highest degree care, he is to exercise the be speed of and that the rate of shall adapted existing to the situation and particular the circumstances at the place. -:9. -: -: Instruction: Admission of Sufficient Evidence.
-
having
jury
defendant
and
telling
asked
received an instruction
the'
cycle
being
“the fact that the
high
motor
driven at
speed
a
rate of
plaintiff
just previous
(if you
or
sumption
fore
find)
to the time it struck
pre-
so
raises no
that the accident was
speed”
caused
such excessive
“there-
and
you
plaintiff
are instructed that
cannot recover because
such
speed
you
excessive
unless
find
injury
and believe from the evidence cycle
would not have occurred
running
if
motor
had not been
at such
(cid:127)high speed,” instruction and asked no rate of several dangerous speed, jury rapid which was one the issue say appeal that there alleged, negligence heard to cannot be acts of high speed. excessive no evidence plaintiff Cycle Contributory: Pedestrian. --: Motor side- up he left having street as and down the testified that he looked car, motor slowing-down and the driver street walk to board from, quickly having plaintiff moved him testified struck car, himself whether towards the street sidewalk requiring jury; negligent the driver an instruction is- one for cycle highest degree care not erroneous. to exercise the motor Leg. street a $4500: Broken Plaintiff was VERDICT: EXCESSIVE 11. cleaner, day, days sixty-five receiving years age, per six $2.75 a about to board as he was He struck the Week. fractured, leg passenger. of the left as a Both car bones street placed hospital, cap. a cast He was taken to a below knee little leg, taken remained for two weeks. He was then and he about the to' testified, home, physician, the care who and thereafter was under his. year aсcident, paretic flex that the muscles are cannot one after the manner; swelling ordinary an inch about in the there is extend downward from the ankle; knee; leg is swollen from the knee to swelling using leg; pronounced after could *3 that the is more crutches; the entire use that he would never recover not without the walk leg, improvement. Plaintiff but there would be a slow use normal injury; times, pain since he suffered but able do no work “had been Held, $4500 the time. that a verdict for was not excessive. riot all 1107, Juris-Cyc. Damages, J., Corpus 438, p. 17 References: C. Section Vehicles, Independent, J., p. 474, J., 42 Section 64. 31 C. n. 31. Motor C. n. 1076, 1253, 29; 1093, 2159, 5; 1127, 1270, p. p. p. n. Section 34. Section n. n. City Appeal William . from Circuit Court of of St. Louis.-—Hon. Killoren, Judge. H.
Affirmed.
Buder <& Buder, Jr., appellant. Buder and A. for G.
(1) One who
contracts to do certain work not
unlawful
itself
necessarily
dangerous
others, according
his
own methods
With
equipment
appliances,
being subject
his own
and without
employer except
(cid:127)to the control
as to the results to be accom-
plished by
work,
independent contractor,
said
is an
for
wrongs
whose
negligence,
principal
The driver
not liable.
of the motor
cycle in
independent contractor,
this case was an
and the defendant
acts
Gall v.
deeds.
Detroit Journаl
answerable
283;
Co.,
405;
191 Mich.
v.
Co.,
Fink Missouri
82
Furnace
Mo.
Co.,
Light
Thomassen v. Water
251
451;
&
W.
S.
v. Levy
Fisher
Co.,
App. 395;
Circulation
Ill.
Kipp
182
v. Oyster, 133 Mo. App.'
716;
113
Ullman,
Crenshaw v.
639;
Mo.
v.
Louis,
McGrath
St.
215
210;
Ekenberg Co.,
Mo.
Sawtells
206
(2)
v.
Mich. 246.
A
necessary
written
contract
is not
to establish
relation of inde-
67
Press.
Hoelker
American
v.
19271
testimony; and
by oral
pendent contractor,
may
shown
be
testimony, the
oral
in such
disagreement
or conflict
where there
133 Mo.
Kipp
Oyster,
v.
question is a
of law for the court.
matter
(3) The
451.
Light
251 S. W.
716;
Co.,
App.
Thomassen v. Water &
being done retains
party
mere fact
the work is
for whom
compliance with the
a
right,
way
proper supervision, to obtain
may
results
ultimate
contractor,
desired
contract
so
affect,
parties,
produced,.
relationship between the
does not
independent contractor, unless
doing
still an
one
the work is
subject
manner, method
principal
he is
to the
as to the
direction
215
Louis,
St.
Mo.
performing
and means of
the work. McGrath v.
Foundry
211;
639; Gayle
113
Car &
Ullman,
Crenshaw v.
Mo.
v.
447; Lofty
App.
(4)
177'
Co.,
Co.,
Mo.
v. Const.
Mo.
Mere
negative testimony
witness,
of a
that he did not hear
sound or
warning,
nothing
against positive
amounts to
and is inadmissible as
warning
the effect that the sound or
occurred
given. Testimony
and was
that a witness did not hear
horn оr
warning signal
probative
against positive
sounded has no
force as
tes-
timony
warning signal
sounded,
the horn or
isit
not sub-
stantial
Armstrong
evidence
verdict -can
v.
be based.
Ry.Co.,
86;-
Quinley
Co.,
v. Traction
349;
S. W.
Ry. Co.,
763;
Mo. Pac.
Ry.
W.
S.
Bennett
Street
McNeil
Co., 122
App. 709;
Ry.
424;
Sanders v.
Co.,
Electric
147 Mo.
McGrath v.
Co.,
Transit
Osborn Wabash Railroad
(5)
68
SUPREME
Constitution
it contains.
matter which
legislate on the
Governor
110
Railway,
v.
9; Wells
55;
V, sec.
IV,
Art.
Missouri, Art.
sec.
Edwards,
v.
945; Stocke
241 S. W.
Edwards,
286;
rel. v.
Mo.
State ex
en-
one who
includes
“employer”
(9) The word
(1)
passing
In
the demurrer
'and- all
in favor of
accept
all evidence
the court
true
degree
pro-
may, with
plaintiff’s
inferences
favor
draw inferences
priety,
cannot
therefrom,
be drawn
-and the court
inferences
or overthrow
in favor
counterbalance
of defendant
360; Troll v.
App.
108 Mo.
Knapp
Hanley,
favor.
v.
Co., 73
219.
Drayage Co.,
332; Buesehing
Light
254
v.
Mo.
Mo.
Gas
only
when the evidence
court can sustain a demurrer
light
therefrom,
inferences to
drawn
considered
thé
conclusively
foregoing rule,
has no case. Scherer
show
Railroad,
466;
Bryant,
602;
v.
273
116 Mo.
Stéf-
Mo.
Gratiot v.
(2)
161
Fisher,
App.
fens v.
Mo.
The court could" not
theory
properly
jury
take the case from the
on the
that Nowák
"
independent
engaged
in the busi-
contractor." He was not
hauling
occupation;
independent
ness of
as an
he was not em-
specific
ployed by
job work,
but did the same
defendant
do
'
day
day
period.
after
for an
He was controlled
work
undetermined
performing
defendant
the manner and the means of
both
work,
arrangement' readily supports
and their
inference'
required
was with
of control
the defendant. He was
satisfactory
do
in a
penalty
his work
manner
to defendant
being discharged
position.
evidence,
from his
Under-the
was an
ordinary employee.
Co.,
409; Gayle
v.
244
O’Hara Gas
Mo.
v. Car
Foundry
&
Co.,
427;
Bryant,
Mo.'596;
177
Scherer v.
273
Speed
Mo.
303;
Railroad,
Samper
v.
71
186;
v. American Press, 273
Mo.
S'. W.
Marshall,
"App. 381;
Tomlinson v.
208 Mo.
v.
Es-
Porter Withers’
tate,
27;
App.
Co.,'
201 Mo.
197
Publishing
App.
Alexander v.
Mo.
601;
Brocker,
App. 332;
Mullich v.
119 Mo.’
94
Blase,
O’Neill
App. 648;
Lynn,
App. 553; Burgess
Sandifer v.
v. Garvin,
108;
272
K'oelling
W.
Co.,
34;
S.
v. Union F. & I.
267"S. W.
Borah
145;
v. Motor
Murray,
S. W.
Simmons
S. W.
Fitzgerald v. Caldwell, 226 S. W.
&
Servant,
C. J.
971/Master
of proving
1321-3.
burden
that Nowak was an
con-
tractor was upon the
Knoche
Pratt,
defendant.'
*5
304; Semper
Press,
186;
v.
273 S.
American
W.
Schneider v. Maney,
69
AMERICAN
Hoeeker
v.
Press.
1927]
(3)
ample
v. Modern defendant’s jury that it was telling the in erroneous tion 1 was not the motor operating degree of care highest the duty to exercise Act, Laws Vehicles 19 of the Motor validity Section cycle. of The objection precise against the upheld as has been Sess., p. 91, 1921, Ex. (a) Said 827. Reis, 274 S. W. Lauck by appellant. raised now the issues it submitted because subject criticism to instruction is before evidence There was substantial to warn. speed and failure of Crawford, 187 Meenach propositions. these both of jury as to (b) Appellant Lynn, W. Sandifer S. estopped jury and is speed to submitting of joined in the issue complain. to by injuries personal sustained for
LINDSAY, C. This is a suit against judgment and Joseph he had a verdict Hoelker, wherein submis newspaper. After the defendant, publisher of Times has Joseph and the cause died, Hoelker sion of the case on appeal, of his administratrix. revived the name operated Joseph by owned and cycle, was struck a motor Hoelker cycle by alleged motor was one Andrew It was Nowak. agents The negligently operated by defendant, its and servants. injury walking side- westward from the occurred while Hoelker Broadway walk at the southeast corner of and St. Charles streets city Louis, purpose boarding of St. of a street car north- stopped Broadway, which, time, bound on had take and at to passengers. on This street car was on the east one the two tracks of Broadway. Charles runs Nowak was St. Street east and west. proceeding portion Broadway. northward on east of He employed by newspapers the defendant deliver defendant’s newsboys points at various city, motor had carrying attachment or newspapers. side car petition charged negligence operation in the of cycle in particulars, several but the submitted his case to jury by 1, upon Instruction specified grounds two of the of negligence rapid dangerous speed of the motor cycle, and — give warning failure to approach. of its general The answer was h denial, plea with the plaintiff’s injuries were due to his negligence own failing look, failing wárning given heed the by operator cycle, of the motor suddenly walking into path cycle. the motor plea up There followed a setting the terms alleged the contract to exist between Nowak and defendant as constituting him an independent contractor, not a servant of defendant.
1927} America^ Pbess. Hоedker v. importance, coming in order first assignment error here, that under trial, upon the made claim npon the
arises jury. This claim' go was not entitled evidence under the evidence grounds, first, chiefly two urged contractor anwas law, Nowak and as a matter next, responsible, and the defendant acts the result whose substantial, show evidence no that there is or, speed, dangerous rapid rate moving con- these is the Added to approach. to warn its failure respects above mentioned.' in the careless plaintiff was tention that the No- defendant and between the agreement written There given by them was relation between to the wak. The superintendent Bangert, and Mr. plaintiff, *7 Nowak, called testimony all to the that- effect for defendant. of deliveries expenses Nowak, paid he all and that owned motor operation. and upkeep of its delivering papers for trial, was still
Nowak, at time who years previous old; that to his" defendant, testified he was shop' in a for three employment said he had worked blacksmith that, awning and, years; place, and before had worked tent years. His work for de had in the Merchant Marine six began September, injuries 1922. to occurrеd fendant on November Nowak testified in substance wanted he suggestion job, a friend he to the1 outside went building, got talking with a job, Times this after man called “Jeff;” were, time, at the men went three other who him, they Jeff, with and that all talked to and started to work Stating at conversation, the same time. he said: “Jeff asked cycles. ‘yes.’ us if had motor told we We him He if we asked us papers ‘yes.5 wanted to deliver for him him some and we told We money him much get, asked how we would told and he us he would pay day down, us papers six dollars if we delivered some for him only argument down had an getting town. We about not town— enough pay, paying repairs cycles. our own for our motor We tried get forty to dollars try day week. He told six us to dollars a for' days, couple get along if we can not, see with that. If he said, up would take it couple days within a more.” For the purpose making deliveries, such he and the others were-told to is, building, be at there, Times ’clock, at eleven o and, at that time he and the others received cards and took certain directions.
The cards were marked for certain streets and corners, street with delivered, of the newsboys papers names to whom the to be to given boy. the number be to еach There were five deliveries day, be made each the first at o’clock, eleven the next at 1:15 the afternoon, 'another at 2:45 in the afternoon, two later edi op Yol, Supreme the Times at others, required be Nowak, well as the
tions. the, taking out purpose promptly times, building at fixed of the various editions. of each one papers in order streets travel certain instructed to Nowak was deliv- to be papers were particular corners where reach various papers to receive promptly hand ered, required stating to be- given the number a card delivery and was for each designated each of corners. respectively boys delivered Bangei~t, by defendant, Mr. called said: "I told Mr. Nowak when give he came to work-I told him I would him a card and he would day; pay make these runs five times a for that I would h~m six day. cycle-what dollars a Then I asked him if he had a motor kind-shape in, it was and he said: `First class.' I told him I would put following Monday." gave him to work the The witness said he go, Nowak no directions as to how he should or the manner in which cycle. he should drive the motor I-Ic further testified that he made arrangement length with Nowak for no certain of time. In- quired that, Nowak, of as to he said: "I hired Mr. and as soon as. prove satisfactory up the work didn't to me-well-it to him.'' '' Q. Any you drop his work was not satisfactory, time him ? would IA. would drop him. “Q. Discharge him? discharge A. I would him.’.’
;
Nowak began delivering testified that after he newspapers for any delivery defendant he anyone did not do work for with else cycle. appear previous does not from the work for any delivery defendant he had gqing done work, or *8 engaged had been other work than the kinds that have been already stated. question Nowak, by of whether in the service rendered him to defendant, defendant was under the control of was submitted -to jury plaintiff's 1, under Instruction author- Indepeiuient izing recovery, question and the in converse form Conti~actor. by was also submitted Instruction 4 for defendant. Counsel urge for question that because the was submitted request by defendant’s said 4, Instruction the defendant is es-
topped to claim that the evidence was insufficient to raise a for jury, and cite Kinlen v. Co., Railroad 216 145, 166; Mo. Jen- nings v. Co., Railroad 99 394, 399; Mo. Whiteaker v. Co., Railroad 252 Mo. Berkson v. Co., Railroad 144 219, Mo. and other cases. What was said in those cases does not plaintiff’s sustain the claim under the facts of this case. If Nowak was independent an con- tractor,- could against not recover the defendant, although Nowak might have negligent operation of the cycle in all respects charged. In overruling the demurrer, court necessarily held there go was evidence jury to the on the ' nn n 73 AMERICAN Press. Hóeleer v. 19271 . The defendant servant of was the question of whether Nowak vital by the-ad through case; and, an all made that issue 'defendant com demurrer, the defendant- ruling of the court on verse single in issue, an It was upon that issue. (cid:127)pelled go jury to the charged. negligence specific acts of character, but were several might submitted; others not: One or more instruction that issue
When court submitted objection of de it was over the authorizing recovery by plaintiff, presenting that instruction fendant, giving of defendant’s defendant, did conversely, a verdict for and so as to authorize issue exception pursuing to the heré his estop not’ the defendant ruling upon demurrer, as to that issue. court’s [Kennefick-Ham Society, 307; Koerper v. Glen Insurance 205 Mo. mond Co. v. Fire Ry. Co., Mo. S. W. non, App. 489; McCaughen v. Pac.
(Mo. indicated, rule App.) For reason we hold that 97.]’ 210 S. Pryor, 430, in Torrance v. W. and State ex rel. announced 925, Ry. Allen, W. does Mississippi River & S. Bonne Terre challenge right to nоt nor foreclose defendant’s apply, suffi’ciéncy point. of the evidence Co., 283,
In Fink Missouri and Crenshaw v. Furnace Ullman, quoted other cases there has been with approval independent what the statement as to constitutes an con tractor, Thompson 2, page made in Vol. Negligence, Section is, general 22: “The rule that one who has contracted with a com petent person, exercising independent and fit employment, an to do piece work, danger unlawful itself or attended with others, according methods, the contractor’s own without'his ¿s being subject control, except work, to the results of his will wrongs contractor, be answerable such his sub-con servants, prosecution tractors or his committed in the of such work. An contractor ... is one who renders service in occupation, representing employer only course of the will of his work, as to the result of his and not toas the means which it is accomplished. wrongs The contractor must answer own ’’ wrongs (cid:127)the committed in the course the work his servants.
In the Crenshaw case was said: “It very is often difficult to person agent determine when a is an employee, and when a ’ ' ' principal.” Gayle Foundry In Missouri Car & 177 Mo. l. 447, it c. *9 easy always say
said: “But it is not givеn to that the facts a bring independent case it within an the definition of contractor.” Necessarily thé determination of depend upon each case must its own facts,'and applying give in courts rule must heed to varying ’ bearing question upon person circumstances whether the ren dering’ represents employer the service the will of his only as to op 317, Missouri, You. SUPREMECourt it accom by which is the means work, and not as to result “When said: also l. c. it was
plished. Gayle ease, In the as may declare court exists that the .undisputed no doubt facts are merely or contractor independent is an a law one matter of whether are facts where the Moon, servant, Long in as be to leave to must disputed it'seems to us proper course independ say was an one (cid:127)jury proper to whether instructions facts accordingly as the are found.” or a servant, ent contractor be said be upon point this cannot The facts in the case at bar as a direct contradiction dispute the sense there is specific given plaintiff, given for and that fact between the question for is thus not so much of contradictions here defendant. ar upon agreement, as one of definiteness of the the terms of the inquiry defendant; rangement between Nowak and whether law, upon arrangement be said a matter of the former it must as independent independent If an he was con was an contractor. tractor, his relation to was that of a servant. It was not defendant necessary agreement writing, agreement be as was the parties between the in Gall Detroit Journal Mich. defendant; but, case for' sustain the cited counsel claim of defendant, for necessary it is it to be held evidence defi nitely constituting independent facts an shows Nowak to be con tractor, and enforces that conclusion as a of law. matter doing person engaged whether a a certain work independent is an contractor arises under an variety infinite of cir- general cumstances. The person determinative test is whether the engaged produce result, doing a certain and in so, is not sub- ject party to the control of means, other as or method producing used in the result. single Sometimes the result is a thing, building the erection of designated of a character, sum, fixed total it is performance sometimes daily, or from time, time to of a acts, complete succession each in itself, paid be completion the basis of the of each such successive act, or during basis of the time performed. which the acts are In 19 Report, 226, American Law there is an extensive annotation gathered wherein have been a score or more of definitions as formu- by courts, lated text-writers, great with citation of a number cases, including cases person having wherein the the work re- done large tained a measure of control over the means manner doing work, and wherein, notwithstanding, it was held that the relation contractor existed. ' In Fink v. Missouri Co., supra, Furnace person held independent contractor received a fixed sum for each load of sand extracted from land of the defendant and hauled to its plant, using in doing so his own tools and conveyance, own method *10 n H'oelker American Press. 1927'] Foundry persons con- Gayle Co., the taking- ont the sand.' In v. Car in every by them, car framed cerned received .a certain sum for ap- using machinery in and provided by defendant, part sheds the (cid:127) Ullman, In the pliances provided the Crenshaw defendant. city person contracted with a to do the entire work concerned had as paving alley. right inspect work, the to materials of an to with, contnact, of compliance terms the and to secure the used evidentiary matters cases, in all the these and all the reserved. In given case, relation inquiry in whether, are considered inspect work right to independent of obtained. contractor agency, nor does relation one of not of itself make the to be done does discharge someone require or to discharge person to of the payment or character by him, manner'of employed nor is the test thing done, conclusive payment unit-of calculation following used, and appliance Ownership the relation. tests, always conclusive generally independent occupation are given case only in the things as aids all are considered these but specifically, whether parties, or determining relation between “Each ease principal. agent other, or is himself one is the facts, ordinarily one feature depend on own must its together. Ordi- all considered determinative, must be relation narily C. J. question is one of fact.” 474.] [31 191 Mich. much relied of Gall v. Journal
The case Detroit nature of upon by defendant, for is like this case in the counsel Rebtоy There, writing, one under work be under contract in done. delivery newspapers persons took defendant to such to make routes, along upon or such places, and at such such route schedules, might furnished to him. He from time time be delay delivery according subject penalty, or default Rebtoy operated the automobile in which schedule. owned paid agree deliveries, $40 and was at a week. The made the rate of ment, however, following provision: contained “The said second according delivery shall make such distribution pgrty conveyance belong own and methods which shall means to and be charge party, and control of said second exclusive subject supervision by shall not ex party control or said first cepting agreed as .to the results work.” of said It was also party might any either contract terminate the time without notice. Rebtoy, said, drayman, drayman’s the court was not a had no li cense, employment and had no other than for defendant. It was held he was an contractor. This conclusion was grounded express provisions whereby of the contract it Rebtoy held had a specific piece delivery contract for.a of work—the papers specific, it was nonetheless because the —and.-that places they-were persons at which or be delivered to whom Supreme COURT oe Nol. one driving from and that change, might delivered they were he:chose; any street might drive delivery to another
point of was.said, he which, it provision quoted upon the and farther ‘1 result, conveyance and in by any1 by any means could effect the horse, use a “he could way fit.” remarked he saw got them foot, provided he carry papers' on an' automobile or *11 The con time.” right places at the right persons to the Michigan moving court clusion, consideration -thereto may. why man not reason seen a at 410: “No page stated are o part of all, or contractor,' deliver agree, independent t as an groceryman, by a- groceries printed by publisher, sold papers doing merchant; and means for by if method goods the- or of the sold by any'right control the em of entirely so are to him without left party had the to terminate ployer. In instant case either very circum might important pleasure. at That be the contract cases, any by in stance some but under this contract threat the em implied, right, purpose ployer, express eon- or use the Rebtoy making trolling deliveries, would as to the method or means have in long been of the terms of the contract. So as the violation Rebtoy to; independent contract was in adhered all of the methods doing the work.” The chief one, difference between that ease this not without materiality, lies in reasonably the fact that here the inference arises from what was in said the informal convérsation the parties, between by required that the means be used Nowak in making deliveries, his cycle. awas In case bar it is not shown that there was any agreement express toas a termination of the by contract either party, nor was the time, contract for a definite and this is to be im plied from the Bangert statement Mr. as 'to his right drop . or discharge any Nowak at his satisfactory time work not This may regarded as of importance more in this case than the like condition in Michigan case, because,' by express agreement there could be by no control the defendant over the means or method making deliveries, respect in particular the use of a kind of conveyance, or of conveyance. This opinion feature of the thе Gall pointed' case by out the St. Appeals Louis Court of Semper v. Press, American 273 S. In W. delivery that case of newspapers for the defendant being by made one Bresler by means of an automobile owned and driven A him'. bundle of papers thrown from the boy automobile permitted by Brésler to accompany and him, assist injured struck in that ease. Bresler employed had by defendant for four successive years to deliver the baseball editio'n of the newspaper. paid He was a certain sum for each trip, payable weekly. In that casé' the court stressed somewhat the fact that Bresler was engaged not work 77' 1927], AMERICAN V. PRESS. HOELKER . occupation, employment delivering papers as an oí and, fur only, for defendant of work performed that character hauling com generally in the work engaged ther, that he was. occupation; and said independent employment or modities as automobile, to discard appear* was entitled did that he also.it making methods of conveyance or other employ other means delivery. 450,W. Light 251 S. & v. Water Thomassen
.In company had an cited, defendant, a foreman -for defendant day’s work, he the close of the arrangement with-it, whereby, after for which service homes, to their would take certain of the workmen pay which was trip, dollars for each he received the of three sum wage purpose For this used daily as foreman. additipn. to an in that as to this service was his own automobile.- It held ground dependent The decision seems contractor. rest company service, that on the occasions when the hired him for merely company’s employees to or from directed him to take the particular point working, at which the mean were but at no time any .way so, in*which he should had directed manner do nor *12 nothing what he should take. said there was from route company right which could be inferred that the reserved' to doing direct work. or him that control
. the. bar reasonably In case at the inference could drawn that right of control of means was the assumed and exercised the de- .. We all the ques- fendant. hold circumstances shown the that jury. tion was one be noticed is the proof claim-that there was no-such
Next-.to negligence operation cycle plain- as entitled the go jury. goes tiff to to the. The claim to questions of the rate speed,, the failure to warn. The time of the occurrence was after, shortly four o’clock in the afternoon; the weather was good, dry. street Speed The evidence was that Warning. Hoelker left the sidewalk at the southeast corner of Broadway and St. Charles streets to take the street car northbound Broadway, stopped which on at crossing. that The only witnesses testifying as manner in. plaintiff which-the cycle to into-collision, came plaintiff himself, were the and Nowak, called by plaintiff.. policeman The directing who was traffic at crossing that did not see the He testified waiting accident. that he was give to 'a car signal.to proceed, when his attention northbound called plaintiff; to the accident to the that the corner is in the eastern busi- city, ness section of that and that from four o’clock on, the traffic point at began get that heavy; that this street ear was stopped at the -usual at place corner, that discharge and receive passengers. plaintiff The years about 65 old and was at the time employed as- op Supreme You. COURT on day, and was that street He had finished his work for cleaner. “safety were way policeman A there home. also testified ’’ stopped; car posts Broadway this northbound point оn at the where (east) from the safety posts placed about three feet safety line
track, leaving half between the about a foot and a eight from space of or ten feet car, and that was a street Broadway. automo- safety There were line to the east curb biles, parked along Broadway, south more, one or the east curb crossing fifteen or crossing. was about The one next plaintiff twenty testimony crossing feet from the line. The diagonally from the parked himself was that this automobile was parallel curb. The was that it stood with curb. other Broadway Nowak north car testified that he went street of, track; him; near, was ahead of was east crossing twenty when the street car was near the he was about feet' it; slowing up, in the passing rear of that when he saw the car safety post, cycle away keep he turned his motor safety from post, and over within two four feet of the curb. plaintiff The sidewalk, car stopped, testified that as the he left the walking ordinary and was walk, westward at an and in the direc- tion of about the car, center of the street time he struck. plaintiff; said it was the front wheel of the motor struck him. Nowak said it was the wheel or fender of the side car plaintiff. which struck the had copies newspaper He in the car time, side at the way and he on his to make deliveries. On his cross-examination counsel defendant he testified that he sounded the horn on the motor when twenty-five he was about away feet safety post, from the and that thirty he travelled about sounding feet more after the horn before' he struck plaintiff, was about two feet from the sidewalk when struck. signal testified that he heard no sounded; horn when he was struck he was about six feet from the running line post post twenty and about feet from *13 post nearest to St. Street; walking Charles that he was struck; west when that he looked to see whether coming, there was traffic but did nothing “not see ’’ coming street; down the he looked north that and south ways ; both just that as he came off the sidewalk, up he looked and down and nothing coming; saw that he could not look in back of the nearest automobile.
Plaintiff, on his cross-examination said: “I nothing didn’t see coming, and all thing at once I seen the along come the street and me; hit that is all I know.” Later on in his cross-examination he coming said he did not see it it hit before him. On his redirect exam ination he corrected that statement and said: “Yes, I seen it com ing automobile; around right, that now.” Asked what he 1927] AMERICAN PRESS. H'OBLKER V. struck me nothing. It do “I time to
did, be said: didn’t have his recross- upon me.” On right quick Just that it went there. automobile,: coming around the he it again said saw examination he I seen away. “I-remember twenty feet which was about fifteen or standing this corner; the automobile coming around it around the Broad going north coming way, this I it around way, and seen “When said: direct examination way (indicating).” Nowak, on his Charles-and slowing Broadway and St. up car I seen this street from man came right. I Some clearing safety post turned to the On his cross-examination sidewalk. I knocked him down.” 1‘ quick, he was happened It because was clear. he said: street doing he quick. I didn’t see what was' happened on the sidewalk. him Asked get off the sidewalk.” when expected I never
before. right “I was him when he plaintiff, first saw he said: seen he keeping watch against my further said that he was side car.” He plaintiff saw cycle time, at the and that he first ahead the motor and said that right car, when was at the wheel of the side he examination plaintiff got quickly. off On his direct the sidewalk ’ ‘‘ ’ going of the accident. Nowak was asked how fast he was at the time going He said: “I was and ten miles.” He was' between seven going quick stoр asked how could when between he the motor hour, there, seven and ten miles an circumstances safety I I post speed said: “When hit the had the slowed down'.' stopped plaintiff It was less than that. I in twelve inches.” The himself testified 'that when he was struck he landed on street dragged street; dragging and was or rubbed over the tore plaintiff’s'left leg- flesh all off his left buttock. Both bones broken, dragged a little below the knee. The distance he was speed over the Plaintiff street was not shown. estimated that of' time it struck him an was ten miles hour’. going Asked on his cross-examination how he would know it ten if miles an it, hour he did not see said: did “Because it not take until it there, nothing no time hit me and' there was in the Answering way.” a similar “Well, according he said: way me, guess coming hit I it was ten miles hour.” argue Counsel for defendant he, Nowak’s plaintiff. sounded horn is conclusive upon' This is ground plaintiff’s witness, that Nowak and also that testimony upon point no other entitled to be cohsideréd. While could did not attempt to im not Sounding peach showing by Nowak contradictory that he had made Horn. point, statements elsewhere precluded showing, if could, either himself or witness, [Maginnis another horn sounded. v. Rail road, l. Counsel insist negative c. that the mere 675.] testi *14 op SupReme 317, Missouri, Vol: warning, amounts hear or a sound
mony
that he did not
of witness
testimony that
against
positive
nothing, and is inadmissible
to.
St.
thereunder, McGrath v.
cited
warning
given, and have
was
Railway
Electric
Southern
Sanders v.
Co.,
97;Mo.
Louis Transit
197
Mo.
Co., 195
Armstrong v. D. & C. Railroad
Mo. 411;
R.
.,
Co
App.
Railway
Mo.
83;
Metropolitan Street
Bennett v.
negative
or relative value
App. 703,
cases. The actual
and other
,
cases.
testimony of this
has been
numerous
considered
character.
value,
probative
no
be of
testimony has
held to
Sometimes such
depends upon
jury.
It
weight is
for the
sometimes its
matter
Railroad, 101
[Murray
particular
case.
the circumstances
Railroad,
381;
Dutcher v.
Railway,
Hanlon v.
Mo.
In the
137, 165;
Harvey,
Miller
627.]
part
that
testified
Murray case
witnesses on the
they
engine,
while those of defendant
did not hear the bell
where,
ring.
positively
testified
bell did
It was said
equal
positive
evidence that the
credit,
witnesses are
bell
general
weight than
ringing
rule,
is as
entitled to more
say they
it.
witnesses who
did not hear
It
said:
“Much
-
depends upon
position
the situation and
of the witnesses and the
they
giving
attention
All
time.
these matters and the
given
questions
credit
jury
.to be
the witnesses were
consider,
question
ringing,
the ultimate
whether the bell was
or
fact,
jury.”
was one оf
properly
and was
submitted to the
value- of such testimony depends upon, the circumstances as 'to
person
whether the
good hearing;
witness is a
he.
distance
object
question;
noises,
whether there were other
of distracting
means
attention,
and the-like.
In this case
testimony was
hearing
good;
that his
that stepped
he
from the sidewalk lie looked in both directions, and-that
he heard
signal.
no
testimony
Nowak’s
was that he sounded the
horn
twenty-five
when
safety
feet
post,
from the
and that .after
sounding
thirty
he ran about
striking plaintiff.
feet before
Under
such circumstances we
say
cannot
plain
tiff that
signal
probative
he.heard no
value,
is of
that,
and rule
under all the circumstances here shown,
question
.whether the
horn
cycle
of the motor
(cid:127)
was sounded
jury.
was one
is also the contention that
there was no evidence to ^warrant
submission of
speed
whether-the
rapid and dangerous under the
grounded
circumstances. This is
plaintifl~
contradictory
the claim that
made statements
Speed.
in character as to whether he saw the motor
before it
him, struck
therefore
cannot be said there was evidence that
(cid:127)
and,
cycle,
saw the motor
reason,
there was no basis
shown
prоperly express
could
opinion
as to 1927]
PRESS.
HOELKER
AMERICAN
V.
81-
*15
foregoing-'
the
of
cycle.. Preliminary to discussion
speed of the motor
time of the occurrence
.proper
that at the
it-is
to observe now
concerning
July 30, 1921,
complained
approved
injuries
of, the act
107),
Ex
was in effect.
(Laws
Sess., pp. 76,
Motor Vehicles
challenged by the defendant
constitutionality
that act was
The
of
granted
appeal herein was
court,
in
for that reason the
the lower
and
before Di
validity
act in
to this court. The
In
ease the same
in
As has there is evidence in this case of the ex- “safety Broadway, istence posts/’ and presumably, although shown, directly safety zone requisite existed clearance space, whereby driver cycle might of the motor pass the street question, proviso car in doing so he could slow down, proceed cautiously. . Counsel defendant insist that when a witness conflicting mákes r irreconcilable statements there is no evidence thereunde to be
submitted for
determination of
jury,
and that until hé can
determine
himself what
saw or
see,
did not
neither court nor
jury can make that determination for him. Thei*e are eases wherein
it
so
[Oglesby
held.
Ry. Co.,
Mo. Pac.
277, 296;
has
Ry.,
Mo. 569;
Hook
Van Bibber v. Swift Co.,
Under the cycle statute the of the motor was bound to highest degree use the degree of care. That of was .care to be ex- by ercised him place at a time and heavy of When traffic. he at- tempted to drive his vehicle in space the between a street car halted to take on passengers, and persons the sidewalk from which coming to car, the street required board he was to “slow down and proceed cautiously.” provision That statutory did not undertake to arbitrarily speed fix to which down, he should slow but did re- quire the- caution, exercise of speed and that the rate of should be adapted to the situation described, and the circumstances surround- ing it. Whether the duty driver met that in this case was one to jury. determined
.But, beyond what has been already, said we think defendant should not now be say heard go no was evidence jury question dangerous speed. Defendant asked and given Instruction 5 as follows: “The court you instructs that 1927} AMERICAN HOELKER PRESS. V. high being driven at a cycle and side car were that the motor fact (if plaintiff just they struck time speed previous at
rate was caused presumption that the accident you find) so raises no plain speed. you are instructed the' Therefore excessive such find- you' unless speed of such cannot because excessive tiff recover injury would not have and believe from evidence 9c- running such had not if and side car currd ’’ with had asked instruction high speed. The defendant no rate of jury. This speed drawing rapid dangerous the issue pro negligence charged; and, having was one of the several acts foregoing instruction, hold giving оf we cured the Pryor authority reasoning rel. Torrance State ex Allen, Mississippi & defendant should Bonne Terre Railroad Co. high ex say not now be heard to there was no evidencé ... speed. cessive __ question plaintiff -negligent,' whether the himself jury. up His was that he' looked testimony proceeded ordinary' down as left the at an sidewalk walk. Nowak’s cross-examination Contributory. quickly wag off moved sidewalk. The-objection Instruction under this-head that there operator requiring valid law to exercise motor highest degree disposed of care has been of. The instruction was ' requiring degree not erroneous in of care. Objection is made to that also if theory instruction cycle, by sounding saw the failure to warn *17 negligence, the horn could be causal and that the driver' was duty warn, then under no and that it was error to submit objection of failure to warn. The not’ does Causal Act fit facts of this case. Nowak said he sounded the horn twenty-five safety slowing feet post when from the car while the stop, for thirty down and that ran he feet before he struck the plaintiff and did plaintiff not see the until he struck until him or plaintiff against plaintiff wheel. The said he signal, heard no and his evidence is that effect when he saw it he did not hаve escape. time objection 1 Another to Instruction is that it uses word “em Nowak;
ployee” urged in reference to and it is that the word is one meaning servants, not confined in its impliedly but includes inde pendent however, contractors. The instruetion~ in its Employee. "employee" directly requires use of tile word the find ing employee that Nowak was an and in performing said work, Was “subject control to the orders and Upon defendant.” ground gave and also the court because defendant’s & Instruction clearly theory upon which stated issue,'the defendant’s jury’ 317, Supbbme Vol. oe “ em- the word by the use confused misled not have been
could ” in- plaintiff’s used in it connection in the ployee struction. Complaint plaintiff is made of statements of counsel for in his
closing argument. place- subject The record of what took complaint of this is a~ follows Argument eight MARSAI~: He knows it was six or feet. Jury. "Ma. BUDER: He said it was two to four feet. We ob- ject plaintiff's to that because the witness Nowak was the witness. up, Mr. Marsalek. The time “The Court: honest in his statement. knows was not He “Mr. Marsalek: dishonesty. object as to his statement “Mr. Buder: We up. time Court/: ‘.‘ exceptions.’’ Save our
“Mr. Buder: difference plaintiff had reference to the of counsel The statement himself and of Nowak as the dis plaintiff in the statement plaintiff was the sidewalk the time was struck. tance holding puts who party that a witness Counsel cite cases impeach rep his truthfulness, and cannot the stand vouches nor, prove. inconsistent with his statements utation . Co., St. Louis Transit Mo. Brosius v. the trial [Rodan 181, urged and other Lead & Zinc Mo. It is cases.] also of counsel were outside this record, statements objection As claim is not sustained. made would seem any request plaintiff in the absence of that counsel for be court, ought a reversal not to be rebuked ordered. This should except done under such circumstances in extreme cases. Railroad, 721; Torreyson Railways, [Norris United We are not warranted saying 707.] this case statement counsel for demands a reversal. $4,500 is also contended that verdict for is excessive. Both plaintiff’s leg bones left fractured, little below the knee cap. injured city After he was he was taken to the hos- Excessive pital placed injured leg. where. a cast was about the He Verdict. weeks, remained there about two was then taken to his home, and thereafter was under the care of Dr. Carl Ottersbaeh. The trial year ocсurred one after the time the was' in- jured. Ottersbaeh, Dr. testifying as to condition’at ‘‘ time -of the said: trial paretic The muscles are and cannot flex ordinary manner, or.extend .in there is swelling about *18 an inch downward from the knee.” He said the callus about fraeturq at time of trial, existed -about one-half inch below the. -joint, plaintiff’s the knee and leg was swollen from the knee to' the- ankle; swelling pronounced was more after he used leg. gave He it opinion as-his plaintiff would never recover the HOELKEB V. AMERICAN PRESS. 1927] improve- a slow leg, of his that there wold’be entire normal nse but plaintiff not then walk years come; could ment with the with: long that condition could tell how out the aid of crutches no work since would had been able do' continue. The $2,75 injury. injured receiving was a his At the time he was working days years old at that time. day, six in the He was week. times, not all of the time.’ pain He testified that he suffered supporting certain the claim that the Counsel have cited cases as Haynes City Trenton, is verdict excessive. $6,000, In cited. was a verdict for which the that case there trial appeal $4,500, court held reduced excessive, original latter sum and it was also .ver said passion prejudice face, dict bore the marks of on -its and' there remanding leg In that had cause. ease broken, been but he was able to return to his work after about fifteen weeks, working trial at the time he was as a brakeman. In Ry. Co., Harris v. Street suffered ligaments fracture of a instep, bone torn. was able after three months to return to his work.'‘ after He result, said, stiffness, making court was from’ him -somewhat $5,000 more awkward. A $3,000. verdict for In reduced to App. 61, Dent v. woman, Traction had plaintiff, $5,500, verdict for which was held excessive to the extent of $2,000. apr The conclusion’ that the remittitur should be entered pears been physician,- have based the fact that in his testimony, say was unable to there had fracture- of the knee been.a cap, and the plaintiff’s injury conclusion was that probably “limited some stiffness consequently the knee and some lameness.” record in the instant case does not show circumstances lead- ing to the conclusion passion that the verdict was the result of with,
prejudice, justified nor are in interfering we the verdict on ground that it is excessive. judgment results from what has said that should Be affirmed.
PER foregoing opinion CURIAM: The of Lindsay, C., in Di- One, adopted opinion vision en Banc. Ragland, Gantt, JJ., concur; Atwood Blair, White and JJ., concur in the résult; Walker, J., C. jurisdiction dissents of lack because in the Supreme Court; Graves, J., ground dissents on ’that under evi- Nowak dence was an contractor.