133 Mo. App. 711 | Mo. Ct. App. | 1908
Action by a servant against his master on account of personal injuries alleged to have been caused by the negligence of the master. Plaintiff was employed bv Michael J. Casey to work as a
The defenses pleaded in the answer are a general denial, a plea of contributory negligence and a plea that Casey, the employer of plaintiff was not the agent of defendant, but was an independent contractor. The court refused to give the jury a peremptory instruction to find for defendant. A careful examination of the facts of the case and of the principles and rules of law applicable thereto convinces us that the instruction should have been given on the ground that the relationship of Casey to Oyster was that of independent contractor. We concede for argument that plaintiff adduced some evidence — meagre, it is true, but still of substance — from which the conclusion might reasonably be drawn that the injury was caused by the negligence of Casey in the construction and maintenance of a certain scaffold' on which plaintiff -was required to work and which collapsed under the weight of plaintiff and his fellow-workmen. From this standpoint, we turn to the facts in evidence that bear on the issue we consider to be of controlling importance.
Plaintiff testified that about three weeks before the injury, he was employed to work as a carpenter by
“Q. Well, just state the arrangement, Mr. Oasey, between you and Mr. Oyster, upon what terms you were to erect that building? A. I was to do all the carpenter work for so much money; they asked me to make an estimate on the cost of the entire building; I done so. Then they told me to get contractors to figure on the different parts of the Avork; I sent out postal cards to two or three or four different graders; Mr. Oyster didn’t know any; I told him I knew some and I would send them postal cards to come around. There was three or four came and I gave it to one grader. I don’t know who he Avas. Mr. Oyster let the stonework himself, and also let the brick Avork. I had nothing to do with that, nor the plastering, nor the plumbing. He asked me about lumber, about where to get the lumber at; I suggested two or three different firms. We got the lumber from the Kansas Oity Lumber Company.*715 They gave us the best figures. He asked about the mill work and I suggested two or three mills, and he contracted with the Western Sash & Door Company for the mill work, and for the roof with the Standard Roofing Company. All I had to do was to do all the carpenter work and look after the locating of windows, doors, chimneys, and such as that; to see that everything went right and wouldn’t interfere with my work.
“The Court: Were you paid for that work in advising him about the names of these contractors? A, No, sir, I didn’t get no pay for it.
“The Court: Go ahead.
“Q. Mr. Casey, who hired the men for doing, the carpenter work? A. I hired them myself. Q. And Mr. Oyster didn’t hire any of them, did he? A. No, sir. Q. State whether or not Mr. Oyster had any authority over your men either to hire or discharge them? A. No, sir. Q. I will ask you who paid the men for the doing of that work? A. I paid them myself. Q. I will ask you if you changed the men around from this work to other work? A. Yes, sir. Q. During the progress of it? A. Yes, sir. Q. Did you keep separate their time upon this work from the other? A. I kept every job separate. Q. For whose convenience did you do that? A. For my own; to know just how they are coming out on each job. Q. Did you ever make any report to Mr. Oyster or Mrs. Fiedler of any time that had been put in by any carpenter upon that work? A. No, sir. Q. When the carpenter work was completed, I will ask you if there was a settlement' made upon the basis of your original contract as to the amount of money you were to be paid? A. Yes, sir. Q. I will ask you if that amount of money was paid? A. Yes, sir. Q. And a receipt was given in full? A. In full.”
Casey was to receive $850 for doing the carpenter work. He was paid more than that amount, but the excess is shown to have been paid for “extras.” The
All of the evidence shows that Oasey was employed to do the carpenter work for a lump sum, to control, discharge and pay his employees, and was to be responsible to defendant only for the result of his work and not for the means by which it should be accomplished. Defendant had no right to dischage him for disobedience nor to control or discharge his servants. There is no inconsistency that reasonably may be implied between the fact that as to the carpenter work, Oasey was an independent contractor and the further fact that he rendered other services to the owners in the preparation of plans and estimates and the purchase
Judgment is affirmed.