*1 1925. American v. The Press. the defendant’s has no motion, therefore right to appeal from action. such is of
There some used the case language Andsley v. Hale (Mo. Rees W. and Scott Sup.), (Mo. Sup.), 253 a little misleading. S. W. is 998, which Bnt an cases examination of the those will dis facts close that their onr holding. in accordance ruling is with
In view of plaintiff’s appeal the above situation, dismissed. concur. Daues, Becker, J., P. J., AUGUST THE AMERI- F. SEMPER, Respondent, Appellant.* PRESS,
CAN Appeals. Opinion 1925. St. filed June Louis Court of MASTER, Independent Person Deliver- Contractor: 1. AND SERVANT: ing Independent Newspapers Con- Whether Dealers: Evidence: Jury Question. tractor In action or Servant of Publisher: alleged damages personal injuries inflicted to have been employed agents, through one whether defendant its servants newspapers defendant, publisher news- bundles of deliver a route, papers along con- an was a certain to dealers liability regards to a third tractor or a mere servant as defendant’s injured by employee’s party bundle news- a assistant who threw being made, were deliveries in which from an automobile evidence, plaintiff, held, for the under struck jury. Newspapers Throwing-Bundle from Automobile NEGLIGENCE: 2. Sufficiency. Injured: Evidence: Pedestrian Struck Sidewalk: newspapers automobile from an was thrown a bundle of Proof that standing the automobile while where to the sidewalk plaintiff in face motion, struck that the bundle was in proof was thrown force, bundle great that the is sufficient with great force as plaintiff’s him with struck face and the direction alleged. -; throwing Negligent Grossly of a Act. The -: -: great moving force newspapers automobile from bundle of standing face, he person’s while of a the direction 217 MISSOURI APPEAL REPORTS, public street, negligent more, grossly sidewalk aof without is a act, regardless person throwing looking in the whether the direction in which was about throw the same. *2 ' Specific Speci- Negligence: 4. -: Petition: Evidence: All Acts'of Negligence fication of plaintiff prove Need Not Be that Proven. not essential It is specifications negligence his in all the contained of petition; only prove them it is essential that he sufficient of to. against make out a case the defendant. Injured Newspapers by -:5. Pedestrian Struck and Bundle of Discrepancy Thrown Sidewalk: Time: Not Ground Evidence: as to Sustaining Demurrer Evidence. other facts In view of tending strongly in the bundle circumstances that evidence to show newspapers plaintiff B’s automo- of was thrown from struck bile, testimony plaintiff discrepancy that of between the that field B, plaintiff’s p. m., happened wit- the accident ness, at 4:53 and that of p. in., newsper 5:11 was that he did officeuntil not leave the sustaining ground a demurrer to of sufficient to authorize the - the evidence. Acting Servant and Another: 6. MASTER AND SERVANT: Acts of defendant’s in Acts: Master Liable. Where Concert: Servant’s along delivering newspapers servant, a certain route in of bundles bundles, dealers, along and the the to throw out took another presence bundle, plaintiff, striking in the immediate other threw assent, supervision, servant, his with his immediate under the of desire, the act of the other was his wish and and in accordance servant, liable. defendant was for which the act of the by Alleged Negligent Act and Servant: Master INSTRUCTIONS: 7. An re- broader than Petition. instruction Instruction not Servants: jury quiring defendant and B. the servant of that was the to find by newspapers was thrown which struck of that the bundle negligent whereby the act became act of his circumstances under peti- allegation petition, B, of the as the than the not broader was act, the tortious was defendant committed of the servants tion that S, S, the act enough act of was of act for the cover the of broad servant, B. Submitting Negligence in Per- -: Instruction -: -:8. Bundle Thrown mitting When Was to Be in Motion Automobile submitting Than Petition. An instruction Not Broader Therefrom: permitting negligence an automobile .to newspapers therefrom was thrown time bundle of at the motion allegation petition was that the bundle covered is negligently motion, was does the automobile while thrown MARCH TERM, 1925. predicate liability automobile, negligent driving held pleadings proof. not broader than the and the Independent -: -: -: Contractor: Instruction Not Excluding Liability Employment Erroneous As Not if That of was Independent requiring jury Contractor. An find instruction B, subject to the of defendant with control orders work, doing reference to the means and manner of his before plaintiff, permit jury can find for does not to find for B, performing scope work, acting if his within the employment defendant, though may jury found that have employment B, of was an that of contractor. Damages: Failing Damages:
l'O. -: Instruction to Limit Harmless in View Amount Awarded. The failure of instruction to damages prayed limit amount recoverable to the amount petition damages was harmless where the amount of jury very prayed awarded much less than the amount for.
11. WITNESSES: Cross-Examination Hostile Witness: Discretion: being employee defendant, Not Abused. Plaintiff’s Witness an exhibiting hostility giving and to considerable testi- his mony, permitting did not its the trial court abuse discretion to be cross-examined. Injured: Damages: Eye Not $1500 DAMAGES: Excessive
12. Excessive. injuries damages railway judgment $1500 A a verdict to newspapers being a bundle of mail clerk caused from thrown his weakening eye-sight, injuring eye requiring face, appellate.court ought glasses, not such inter- held use of for excessiveness. the award fere with p. J., 474; Servant, Independent, 26 31 C. Master and 1. *Headnotes p. 47; Vehicles, Cyc., 1576; Vehicles, Cyc., p. Motor 28 28 3. 2. Motor 587; Vehicles, p. Cyc., p. Cyc., Negligence, 5. 28 Cyc., p. 37; 29 Motor 4. 1521; Servant, Servant, Cyc., p. 48; 7. Master and 26 26 6. Master 49; Cyc., p. Servant, Vehicles, 1579; Cyc., p. 28 9. Master and 8. Motor 49; Appeal Cyc., p. Error, Vehicles, 1579; 10. 4 Cyc., p. 28 Motor 26 Cyc., p. 2476; Witnesses, Damages, 3027; 12. 40 17 C. J., 11. C. Section J., 454. Section City Court St. Louis the Circuit from Appeal Miller, Judge. Franklin .—Eon.
Affirmed. 217 APPEAL
58
MISSOURI
REPORTS,
The American Press.
v.
appellant.
Buder doBuder
competent
(1)
has contracted with a
One who
exercising
employment,
person,
fit
perform
itself
or
certain work for
unlawful
him,
according
danger to
to the con-
others,
attended
subject
being
tractor’s own methods
without his
except
work,
as
results
his
will not be
control,
wrongs
his
contractor,
for the
of such
sub-
answerable
prosecu-
committed
servants,
contractor or
191;
v. St.
215 Mo.
Louis,
tion of such
McGrath
work.
Fink v. The Missouri
633;
113 Mo.
Ullman,
Crenshaw v.
City
276; Monnd
Paint and Color
Furnace
82 Mo.
Co.,
Light
0 ’-Hara Laclede
221;
92
Gas
Co. v.
Mo.
v.
Conlon,
Louis
Thomassen v.
St.
395;
244 Mo.
West
Water
Co.,
Oyster,
Kipp
Light
133
450;
v.
&
Co.,
W.
405;
Journal
Mich.
Co.,
v.
Gall Detroit
Smith,
711;
Morgan
v. The Ameri-
570;
159 Mass.
Corbin
v.
et
13 Allen
al.,
v.
Mills,
274;
Conn.
Wood
Cobb
can
(2)
148 U. S.
One who
Brown,
Casement
58;
v.
request
voluntarily
at the latter’s
does
assists a servant
general
a
of the master
become
so
rule,
servant
not,
impose
duties and liabilities of
the latter the
toas
so as to
or
render the
volunteer,
such
towards
master
injured persons
such
third
volunteer’s
master-liable
rendering
negligence
assistance. Moll
while
such
acts or
Cyc.
page
Independent
9; 26
sec.
Contractors,
Chaney
Ry.
& M. R.
L.
Servant;
Co.,
&
v.
Master
Thysseu
Foley,
Mangan
250;
33 Mo.
598;
176 Mo.
Davenport
White
J. E.
Ice
Iowa,
etc.,
*4
submitting
(3) An instruction
269.
&
Ga.
Co.,
Levi
137
proof
broader than
jury must not be
to the
a cause
instruc-
pleadings,
within both. An
must be
and the
jury, which issue
is
an issue to
tion which submits
Ostopshook
though
proven,
pleaded
erroneous.
is
642;
227 W.
Co.,
&
S.
Rail
Steel
v. Cohen-Schwartz
Riley
Independence,
Sparkman Wa-
671;
v.
258 Mo.
v.
App.
Railroad,
v.
McDonald
463;
Mo.
191
Railroad,
bash
1925.
59
App.
165 Mo.
McElvain
75;
v.
204
824;
Dorroh,
S. W.
State ex rel. v.
270 Mo.
Ellison,
645; Lorton v.
216
Trail,
(4)
S.
54.W.
An instruction which
to limit the
fails
damages
pe-
recoverable to the amount
for in the
sued
Spohn
Ry.
tition is erroneous.
v.
Pacific
116
Co.,
Mo.
City,
Mo. 617'; Smoot
194
v. Kansas
Pink
513;
Mo.
v.
Railways,
Finley
United
219
679;
S. W.
v. United Rail-
ways,
Tyon
Ry.
App.
v. App. 119 Mo. Brocker, ; 332 244 Mo. Mullich v. 409; Co., O’Neill v. 94 145; Motor 257 S. Blase, W. Co., Borah v. Mo. ’ App. App. 201 Mo. Estate, v. 648; Porter Withers App. 601; Mo. Pub. 197 Scherer 27; Co., Alexander v. Lynn, Bryant, 52 Mo. 273 Sandifer Mo. any prove (4) reason evidence to 553. -Where chiefly entirely within the control of an if not a fact is meaning proof, party burden burden adverse special op- party knows or has is on the who evidence, Maney, knowing fact. Schneider v. portunity “Slight are sufficient to es- circumstances 43. Mo. possessed peculiarly is fact the defendant tablish a where disprove power fails to adduce evi- it such Davenport 122. bur- Mo. Elec. dence.” proving con- that Bresler den of Knoche v. Pratt, defendant. tractor 1925. (5) lia- The master is not from absolved bility negligence party of a third concurs because *6 producing injury. negligence a servant with the 195 Mo. a servant Co., Harrison v. Elec. 623. Where perform simple permits a manual act of a volunteer to presence employment, in the and the assent of regarded act of the volunteer servant, may master held liable there- and the act, servant’s App. 512; Mo. Blumenfeld for. 34 James v. Muehlbaeh, App. (6) in- Plaintiff’s 206 Mo. 509. Co., v. Grocer improper it failed to 1 not because have struction No. was jury find that both Bresler and Schrell were defend- requisite that It have ant’s servants. only allegations petition, jury but find all a ex rel. v. Ellison, to make case. State sufficient Corby 181; Railroad, v. 115 Mo. 671; S. W. Poster damages (7) 428. The awarded 231 Mo. Co., v. Tel. Steigleder Lonsdale, 253 S. W. were excessive. App. Mo. 37; L. & P. Co., Lattimore E. 487; Smelting Quinley v. 150 Mo. Frazier v. Co., (8) It was within the 287. Traction permit plaintiff to cross-examine discretion to court’s showing that this dis- no there witness Bresler, Josephson, 153. 237 S. W. abused. cretion was Dauber injury personal case. Plain- C. This ais SUTTON, eye injuries damages to his left for to recover tiff sues through by alleged the defendant been inflicted to have jury, a agents. tried to The cause was its servants judgment favor a verdict and there was appeals. the defendant $1500, injuries plaintiff received the The accident which corner of northwest at the he sues occurred for city Louis, of St. in the streets, Market Fifteenth and September de- on in the afternoon, late engaged in the corporation, was a Missouri fendant, newspaper distributing a publishing and business of plant at was located Its Louis Times. St. known as the APPEAL 217 MISSOURI REPORTS, city. Broadway George and Chestnut street said One D. Bresler delivered the base-ball edition the Times defendant Man- dealers what was known as the tonring making chester run. Bresler used a Ford car in papers wrapped these deliveries. The were bundles plant placed at defendant’s were bun- on the labels showing dles where and to whom the to be bundles were permitted boy delivered. Bresler sometimes delivering papers. name of Schrell to assist him in assisting in Schrell was time deliveries at the the accident. Bresler drove the automobile, Schrell in the rode back seat threw the from the au- bundles places delivery. at the tomobile The northwest cor- ner of Fifteenth and on the Manchester run, Market was required and Bresler was to deliver a bundle of place at that dealer the name 'of At Samuels. *7 injury standing the time of his the on was the at the corner of Fifteenth and Mar- sidewalk northwest making ket. in Bresler deliveries drove westward passed on Market and as the northwest corner street, of Fifteenth Market a bundle of and Schrell threw from the automobile and struck the it in eye, inflicting injuries the left the for which he sues. walking along Plaintiff testified: “I was Market west stopped wipe my a moment to forehead, street and and the next
thing thought lightning I struck me. I happened. light didn’t felt like know all had what I gone me. a out of It sudden I didn’t know shock. was by something. going in hit what the world was on. I was any- Immediately didn’t see after the bundle struck me I sufficiently composure, thing. my I I recovered When papers lying my saw that bundle of at and I saw feet, going away, about block west. automobile a I saw two persons looking they backwards. in automobile; were identify They enough near me to them. were lying you found The me the bundle I bundle now show is my copies the St. Louis Times. at feet. It contains spot on the bundle That is the hit me. bundle that TERM, 1925. American v. The Press. bleeding profusely so that blood blood. was I was just got all the sidewalk and some of it on over bun- City Dispensary dle. After the accident I went to the charge surgeon in laid me out a slab there or three made two stitches wound, was eye. a cut lower lid in inner corner of left over the through yet. There a there cut the lower is mark It lid. fifty-three years Chicago. I am and reside at old At my employed railway injury, I as a time of mail was Chicago distributing mail en route between clerk, salary per year. of $2,300 St. a Louis, received After Dispensary City me at the went finished with I to generally sleep stopped, where I where I when here, got charge building man I there the told me somebody been there from the Times had to see me. I Chicago. did then went home not work back; I run I was unable make the run. default; went In Chicago my eye. medical treatment I obtained I physician Sep- was under treatment of there from My bandaged tember to October 7th. 15th face eye I had to doctor examine the have the and dress the twenty-nine My wound. for treatment bill dollars. my going On work. the latter date I returned to On bade my eyesight very much to work I discovered weak- magnifying glass so much so fact I had use ened, poorly decipher addresses that were written. I never injured. eye My do before had to tinued I was con- this has might say just condition described I I have gained day. practically strength, this It has magnifying glass, I is, do not have to use a but I am *8 glasses anything never able to do at all. I without have glasses. to never the accident been able without since read my injury glasses Prior never had to to I use except any night. at cannot work at to work Now time I papers glasses. my without I found that bundle of at make that it was feet and from that I the deduction what ’’ hit me. plaintiff by the The bundle identified was intro- copies ten of the duced in It contained base- evidence. APPEAL 217 MISSOURI REPORTS, of the St. Times, thus: ball edition Louis labeled run. Sat Samuels 5 D 10 15th and “Manchester Mar- wrapped cylindrical It was form, ket.” was about length, eighteen inches three or four in diam- inches weighed pounds. about three It been has eter, inspection brought the record for the here with of the parties. of the the consent court Ryburn City Dispensary, of the Louis Dr. St. John plaintiff, produced testified that on behalf treated he September for a on laceration of the eye, length; about inch in of the left one-half lid lower and took one stitch in same; he treated the wound that any on not detect that his examination did in- eye. jury to the at that time produced plaintiff, George on behalf D. Bresler, “During base-ball season had a I contract testified: papers it in deliver the late after- defendant to per my at dollars machine, own five run, noon with thirty-five amounting per only dollars week. de- to I during papers the base-ball defendant season. livered papers During year at corner of the sold boxes. the rest I arrangements papers defendant, to deliver I made manager, circulation about defendant’s Pollard, with Mr. years prior Mr. was hired Pollard- four 1921. I arrangement I with Mr. came Pollard, After I made I every and went back would season work. down job get my back. I out if I would come down find got my job base-ball season started. in 1921 back when Bangor Mr. was the one there then. Pollard Mr. just him and came to said, back. I me to come who told ‘certainly.’ year?’ going said, and he back this am I ‘Bill, job.’ your go After that came I back on He said,'‘You Bangor evening had every this run. and delivered there press room to charge left the when of the to the different sent out put on machines be day left hurt that the I stations. On regular my Building run. the corner Times Market, Fourteenth, south Chestnut I went out *9 Semper v. The American Press. got city
then until I to west, limits. had a I bundle boy, to deliver at Fifteenth and Market. The Schrell, day, who with me that threw bundle off.' I let day. go every me If he going would be there out take him. He went I would with me two or three throwing off times a bundles. week, On the various oc- rode with heme, casions he sat in the when back of the dropped got car off for me and bundles until we passed Eighteenth street. I the corner As of Fifteenth day Market on happened, and the accident the bun- dle was thrown off. I slowed down the bundle to be employed post thrown off. Schrell was in the officede- partment weighed mail at the Every office. Times say, you going time I see him he would ‘Are would west,’ ’ ‘ say, give sure. I would would him a I lift help these bundles off would throw me out. did I anything pay him to do that.” Defendant no evidence. offered Schrell, Pollard, Bangor produced were not as nor witnesses, were accounted for. assigns
The defendant reversible error the re- ground fusal of its demurrer to the evidence. The chief urged support assignment of this is that the evidence conclusively independent shows Bresler was an con- tractor a mere servant of defendant. It is ar- gued undisputed that the evidence shows that Bresler was under contract with defendant to deliver its during employing the base-ball round sum, season, subject being his own means without methods, except control of defendant as to the results of work, his adjudged and that therefore he an should contractor as a matter of law. general
“The is, rule that one who has con- competent person, exercising with a tracted independent and fit piece employment, to ado not in work, danger itself unlawful or attended with to others, accord- ing to contractor’s methods, own and without his being subject except the results of control,
217 A.—5. M. APPEAL REPORTS, 217 MISSOURI wrongs for tbe not be con answerable snob will work, or bis committed in servants, sub-contractor, bis tractor, *10 independent prosecution work. An of sucb contrac renders service tbe course of an occu tor is one wbo only representing employer pation, will of tbe bis toas not as to tbe means tbe of work, result bis wbicb [Gayle Foundry accomplished.” Missouri Car & it is v. 987;W. 427, l. 446, 177 Mo. c. 76 S. Crenshaw v. Ull Co., 20 McGrath 633, l. 1077; 113 Mo. c. S. v. St. 639, W. man, l. 114 S. Fink 191, 611; Mo. c. W. v. Mis Louis, 215 210, 283.] l. c. 276, Furnace 82 Mo. Co., souri employing general compe is that one a “Tbe rule independent person, exercising occupation, an tent bim wbicb is not do a work for unlawful itself or retaining dangerous to no control of others, and tbe person may adopt power or to direct methods sucb or except tbe control bim tbe work will not results, wrongful negligent or be for tbe acts answerable of prose in tbe contractor or servants committed sucb [Loth Columbia Theatre cution the work.” v. 197 Co., of Mo. l. 94 S. O’Hara v. Laclede 354, 847; c. W. 328, Gas Light 244 l. 884; Mo. c. 148 S. 395, 409, W. Sandi App. 562.] Lynn, fer l. c. 553, v. 52 Mo. general person
“Although, every in a sense, wbo may yet a a enters into contract called ‘contractor,’ want of a better has to be word, one, come used person special pursuit reference to tbe wbo, independent piece undertakes to do a certain business, persons, using of work for other bis own means submitting their without himself to control methods, respect of all its details. Tbe test of a true ‘contractor’ to be that the service in the would seem he renders course representing occupation, of an tbe will of only employer bis tbe result of bis as to work, accomplished.” [Mul as to tbe wbicb it is means App. c. 97 Brocker, 337, lich v. 119 Mo. S. 332, l. 549;W. App. 764.] 94 S. Blase, 648, O’Neill Mo. 68 W. The American Press. applicable persons contractor is “The term to all fol regular, independent lowing employment, in the course public offer their services to ac cept may and execute orders commissions for all who employ using duty, in a line of them certain their own purpose only being accountable means final performance.” [Cooley (2 p. Ed.), on Torts 647; Mo. l. c. 332, Brocker, Mullich v. W. Lynn, 563.] Sandifer l. c. only relation master “The servant exists charged person sought to be where the as master either employed right or controlled or had the servant, injury happened, time control over at the when the tacitly expressly, pf or or assented to the rendition particular by him. service He at the must, time, have right to had direct action the servant *11 reject accept by City or [Mound its rendition him.” Paint & Color Co. 92 Mo. l. c. 4 Conlon, 221, 229, v. W. 922.] every sought
“In case the to be conclusive test after, by to or the which determine whether not immediate actor was the whether is, servant of the the defendant, defend ant the reserved control over as to manner do , ing power power power implies the . . The control work. to the discharge accordingly to disobedience; the discharge regarded frequently to has been as the test to the which determine whether relation mas person ter ... servant existed. A who, skilled particular employment, engages in a with another to do particular job reserving for a work round sum, to right himself the to determine what he shall methods accomplish independent regarded the is as an con work, agent of the as the servant or other con tractor, tracting party, in the which makes latter re sense sponsible any may doing wrong commit he [Fink 10 Mo. work.” Furnace v. Missouri Kipp Oyster, 61, l. l. c. c. 717, Co., 538; Gayle Foundry & 114 S. W. Missouri Car 987.] 427, l. 177 Mo. c. 448, 76 S. W. REPORTS, APPEAL MISSOURI American v. The Press. right contracted for is an to control work
“The determining employee important is test whether may independent mere and it an or a servant, contractor employee under the con generally he that if the is stated per employer if in the hut servant, trol of the he is he is not the control of the formance of the work under employer independent . . . The an contractor. he is may employer any terminate the at time fact that performance employee hy discharging the work weight tending em of considerable show is ployee independent . The contractor. . . is not an employer employee hy with his fact that an his contract or bound to furnish the materials tools is the light ques little on the done affords hut work shall he independence, fact has cases tion of hut such some independence. tending . . . been considered-as show payment done is an im The mode of work he determining portant element to considered whether independent employee contractor hut is con- is an right controlling. . . . .(cid:127) . . However, principal doing the is the control the manner of work whether worker an consideration which determines employee . . contractor. . test or an relationship right It is not the is the to control. fact right control hut the of actual interference with the independ between interfere that makes the difference agent.” [Bristol & ent a servant or Gale contractor and l. 21.] Ill. c. Co. Industrial Commission, sought person Whether the relation between “ *12 alleged wrong charged to he for an immediate hy wrong alleged that of actor whom the was done, independent proprietor con or master and servant, jury, question frequently fact for the is a tractor, upon depends variety of circum a solution of which App. 10 [Fink Co., Furnace Mo. stances.” v. Missouri 197 c. Pub. 61, 65; Co., l. Alexander v. Star-Chronicle App. Estate v. 601, 467; Mo. 198 S. W. Porter Withers App. 109.] 201 Mo. 210 S. Co., 27, W. 69 impossible la.y is a
“It down rule working contracting together of men can be status employees definitely independent in all cases or defined depend contractors. Each on its facts, case own .must ordinarily no of the relation is deter- one feature together. all but must considered Ordina- minative, Corpus rily [31 473, is one of fact.” Juris 474.] undisputed facts exists that are no doubt
“When may a whether court declare as matter of law one independent merely . or a . servant, is an contractor . disputed proper course it but facts are where the proper jury under seems to must be to leave it to the us independent say an con instructions to whether one was ’’ accordingly are found. servant, as the tractor or facts Foundry [Gayle Mo. & 177 v. Missouri Co., 427, Car Oyster, Kipp 133 Mo. 711, l. c. 76 v. 447, 987; S. W. St. Louis l. c. Thomassen West 716, 538; S. v. W. Light (Mo. App.), l. c. 450, S. W. Water Co. 451.] liable because
“If defendant is claims he being contractor, done work prove upon such re it burden is seems that the Cyc. Maney, lationship.” 242 Mo. [26 1573; Schneider Mo. Pratt, c. W. 43, 145 823; l. S. Knoche 36, Slayton End Street v. West 304, 187 c. 300, l. W. Ry. c. 63.] 174 Mass. l. general party burden not the who has
“Where the knowledge complete possesses positive con proof party having cerning facts which the existence of any negative, where or that burden is called chiefly prove not en fact if reason evidence is party, it tirely has the control of the adverse within meaning proof, the burden the burden been held that special party or has knows is on who evidence, opportunity knowing cases, in criminal even fact, necessity go although obligated than farther no Maney, requires.” l. c. 43, [Schneider 823.] 145 S. W. *13 217 MISSOURI APPEAL REPORTS,
“Slight circumstances are sufficient to establish peculiarly fact possessed where defendant with power disprove to it fails to adduce such evidence.” [Davenport King Electric Co., Mo. l. c. 122, 454.] S. W. present employed
In the case, who Bresler, was defendant to deliver its to dealers, fol- lowing exercising regular independent employment or occupation, or in the course which his serv- offered public accept ices to the to orders and execute commis- might employ sions for all who him in a certain line of duty. engaged delivering pa- in the work of He.was pers independent employment to dealers as an or occu- pation. performed He this character of work for the only. engaged'in defendant Nor hewas the work of haul- ing delivering any character as an commodities independent employment occupation. or For four suc- years prior year cessive to the in which the accident had Bresler delivered occurred, defendant’s base-ball during edition over .the Manchester run the baseball per trip, paid at five dollars seasons at the end of to year week of service. In each again accident in Bresler was em- occurred, ployed price to deliver the base-ball edition at the same per trip previously he had received. He continued to do price prior the work at this for awhile. Some time to reduction in general the accident defendant announced a employees. salary of its salaries Bresler’s was re- along employees. duced with that of the other His sal- ary per was reduced from He week. com- $35 $30 plained accepted proceeded but reduction, it, complaint, with his work as before. did not base his He ground right on that defendant however, had no make the reduction under its contract him. "Within days a few after the accident out of which arose, this suit discharged defendant Bresler on account of the acci- during employment required dent. Bresler report promptly each afternoon the base-ball when edi- American v. The Press. delivery ready make de- tion was immediate on the Manchester run. liveries all dealers Occa- *14 required sionally delivery make an earlier on he was to run he received additional com- Olive street the pensation. required at times to He was also make deliv- Highlands Park which was not eries at Forest on his regular These run. deliveries were without made extra by compensation. papers The delivered Bresler were plant. wrapped defendant at its in bundles the There designating each attached to bundle labels delivered, the run were it to be dealer to on which it was the was be place delivery. There the was noth- delivered and to, conclusive-, ing the or the conduct the work in contract right ly showing the that the defendant surrendered to doing in the and control Bresler means methods his conveyance, it is used own true, work. his Bresler, kept touring doing in his and in car, it re- work, Ford pair necessary gas provided oil for and and as it it, required contract do under the of em- he seems was appear ployment. he was it that But does entitled employ and other automobile means of to discard adopt making conveyance, other methods, his might he choose. deliveries state of the that this evidence the
It is manifest an Bresler was con- toas whether defendant was for or a mere servant tractor jury. upon places much reliance
The Gall defendant clearly 405. That case is Mich. Co., 191 Detroit Journal case at distinguishable from the bar. facts In its driving Rebtoy, Albert while automobile that case journal delivering newspapers for the work of in the plaintiff, inflicting against company, ran brought. injuries The con for which the suit performed Rebtoy his work for the under which tract following writing, company and contained provision: delivery Rebtoy and dis-
“The make such said shall according own means methods tribution APPEAL MISSOURI REPORTS, belong conveyance, which shall to and be in the exclu- charge Rebtoy, sive and control of said shall and which subject supervision by not be control or the com- pany excepting as to the results of said work.” provision
This contract was stressed controlling and was court, the decision of the case. referring court, the circumstances in evi- shown company right desig- that dence, to-wit, had persons places nate the to whom the would be Rebtoy paid by that delivered, week, drayman, was not licensed said: important things'might “All of these in deter- employer mining employed the relation of the in a controlling doubtful but case, are the face _ ’’ clearly of a definite contract which defines the relation. Rebtoy sup- *15 It is that obvious case affords no port position for the defendant’s in this case. petition alleges insists further
Defendant that specific negligence plaintiff’s of acts of cause in jury, having required prove and done that, so, rely specific such and cannot on acts the doctrine of ipsa prove loquitur, specific res that he failed to acts alleged, negligence of and that the demurrer to the evi ground. been dence should have on this sustained The petition -alleges : City in
“That of on the Missouri, St. 15th Louis, engaged September, day of the defendant was copies containing delivering newspaper, of bundles its employed purpose; by an automobile for and, said agents charge and there in then of its servants delivery negligently large, heavy of hurled a bundles, said newspapers said from automobile while the bundle westwardly moving on Market street same was said plaintiff plaintiff city, and struck while therewith, standing thereby the sidewalk said street, was eyes plaintiff’s causing cut, face to be con- bruised, inflamed; that lacerated, defendant’s tused, infected negligently threw said occasion said said servants bundle from said automobile while the automobile inwas p negligently motion, impro said threw bundle great er and reckless with manner, force, and without looking they in the direction in which were about to throw the same.” urges argument
Defendant charge neg- that the ligence is that the bundle in was thrown from moving by automobile defendant’s in' servants an im- proper great and reckless with manner, force, and with- looking in out the direction in which were about to specific throw allegation neg- same, is a this ligence, proof and that there is no to sustain it. proof
There was direct that the bundle was thrown from Schrell the automobile to the sidewalk where plaintiff standing, while automobile inwas mo- tion, that the bundle struck the in the face great with force. The bundle must have been thrown in plaintiff’s the direction of the face, else it would not have struck him in face. It must have been thrown great with else it would not have force, struck with great throwing moving force. The of the bundle from a great plain- automobile force the direction of the standing face tiff’s while he was on the sidewalk of a public grossly negligent without street, was a more, act. alleged petition sufficiently The act in the and adequately proved by direct evidence without aid presumptions arising ipsa loquitur under the res rule. specifica- prove failure of the additional negligence, tion of that the to-wit, bundle was thrown *16 looking, in defendant’s servants the “without direction in portant. they were about to throw the same,” unim- prove speci-
It that he all the was essential petition. negligence It fications contained the was only prove essential of them that he sufficient to make against out a case the defendant. presses upon
Defendant our attention the circum- plaintiff hap- stance that the testified that the accident pened p. 4:53 testified that m., at whereas he Bresler APPEAL REPORTS, 217 MISSOURI The Press. American p. Building m. De- until 5:11 not leave Times
did says, conclusively bun- that the shows that this fendant plaintiff not have could which struck dle of and that the de- Bresler’s automobile, thrown from been on have been sustained evidence should murrer testimony discrepancy slight ground. This this may the result mistake accounted for as well be part The dis- of the witnesses. or the other of one regarded importance crepancy as of little must in evidence facts and circumstances other view tending strongly which struck that the bundle show plaintiff from au- Bresler’s thrown Schrell tomobile. that contention makes the further Schrell,
Defendant papers from the automobile the bundle of who threw was a mere volunteer for with it, struck responsi way in no act the defendant is tortious whose Schrell threw merit in this contention. no There ble. is in Bresler’s presence, under immediate his the bundle supervision, accord assent, immediate taken into and desire. Schrell was his wish ance with might the bun throw in order that he the automobile places at the where were the automobile from dles to be delivered Bresler and when arrived to the dealers, injured, slowed down where at the corner the bundle could throw that Schrell so the automobile The act of Schrell to the sidewalk. from the automobile 34 Mo. [James Muehlebach, Bresler. act of Meyer-Schmid Grocer Blumenfeld 132.] 230 W. c. 509, l. plain- giving assigns error Defendant ground it is that broader on the 1, No. instruction tiff’s than the says petition petition. that the Defendant al- defend- was thrown leges bundle that the agents, instruction does whereas servants ant’s require jury was either serv- Schrell find assignment agent is ex- of defendant. This ant or requires jury instruction tremely technical. *17 Semper v. The Press. American find that Bresler was the servant of defendant and that by the bundle whereby thrown Sehrell under circumstances negligent his act became the of act Bresler. allegation petition Clearly the that the servants of enough defendant committed the tortious act is broad to cover the act of for' the Sehrell, act of Sehrell was the act of the servant Bresler. further
Defendant contends that the instruction is pleadings proof per- broader than the and the it that predicate jury liability negligent the mits the driving petition the automobile, of whereas does not allege and the evidence does show that the automo- negligent bile was driven manner. instruction The predicate liability upon negligent driving does not of negli- the automobile. submit does It of gence permitting the automobile to be in motion at the time the bundle was thrown. this But is covered allegation negligently that bundle was thrown while the automobile was in motion. objects
Defendant further that the instruction is permits jury faulty in it to find for performing acting scope if Bresler in his work though employment jury may defendant, his employment found that the have Bresler was that objection contractor. not well distinctly requires jury taken. The instruction subject find that Bresler was control and orders the means defendant and manner reference doing work. complains
Defendant further of the instruction damages that it fails to limit the amount of recoverable prayed petition. to the amount The amount of damages very jury awarded much less than prayed Manifestly the amount for. there is no merit in complaint. this the court committed error in
Defendant insists that plaintiff’s permitting counsel to cross-examine the wit- employee of Bresler. The was an defend- ness witness REPORTS, 217 MISSOURI-APPEAL Bag Bag & Levine v. Minn. Barrel Co. Co. plain- hostility exhibited considerable to the and lie
ant, *18 testimony. giving that the did rule court tiff in We permitting him be discretion in cross- not abuse its examined. plain- relating have examined evidence
We injury, dam- conclude that the amount of the tiff’s ages and jury that this court is not
awarded such ought for excessiveness. with the award to interfere judgment that the recommends
The Commissioner the circuit court be affirmed.' opinion foregoing of Sur PER CURIAM: The ton, judgment adopted opinion of the court. The C., accordingly Daues, J., affirmed. P. of the court is circuit Nipper, concur. JJ., and Becker and Style Doing and LEVINE, PHILIP Business Under Appel LEVINE COMPANY, Firm Name of BAG Doing Under the HOCHMAN, v. ABE Business lant, Style BARREL Firm Name of MINNEAPOLIS Respondent.* COMPANY, AND BAG Appeals. Opinion filed June 1925. St. Louis Court Agreements: Pormal Instrument Contracts: Written 1. EVIDENCE: application Necessary: Correspondence. Regarding Not vary excluding parol of a written terms law evidence rule of agree- necessary instrument, to make an not instrument is a formal agreement. may correspondence written, constitute such ment Partly Writing Resting Partly Agreement -: -: hags partly' agreement rested sale second-hand for the Parol. An parties parol, writing partly did minds of the where the long agreed until a distance terms final were meet and parties during met the minds of the telephone conversation upon; correspon- agreed were of the contract final terms negotiations nothing than prior more un- shows thereto dence accepted sale. conditions of or offers