*1 837 negligence (Contributory pleaded jury. issue tbe was not case). Therefore, suscep- a the instruction defense in seems convey construction, impres- tible of the and to be calculated though alleged dynamite ex- sion, that defect in the caused contributing a plosion, plaintiff if an iron used bar and that was recover. plaintiff cause cannot attempted
Respondents Some have not defend their instructions. repetitious inclined, examination, and we are from a cursory are 6, evidence think that their instructions under the in this subject perhaps properly are recоrd to some of criticisms leveled by appellant, ordered, at them trial must be however, as another noted, conceded, errors in assume instructions we on such following evidence, trial adduced, instructions then so will be to obviate Respondents framed as the criticisms now made. conceded hold, have, appellant that if we we facie ease prima proof their .burden of instruction error contains reversible under rulings later judgment this court. It therefore follows that must be Hyde cause remanded. ordered. reversed and It so Bradley, CG., concur.
PER foregoing opinion CURIAM: The isC., Ferguson, adopted opinion judges concur, except as the All the court. Douglas, J., voting because not member of the court when -cause was submitted.
Emory Benjamin Skidmore, a Minor, H. His Next Friend Skid Troy City more, Appellant, v. Kansas Corporation. (2d) S. W. Company, 726. One,
Division December 1937. *2 Blain, George Crowley ap- W. <& W. Lamm W. Barnett pellant.
Watson, Ess, Gh'oner, Barnett <&Whittaker and Mosman, Rogers, respondents. Bell Buzard for *4 is
HYDE, reassignment, case, coming writer on C. This to the damages court, at $50,000 injuries. an action for The personal plaintiff’s evidence, gave the close of a peremptory instruction City Company. returned jury find The defendant Kansas against has Haggard Plaintiff Troy $5,000. verdict defendant assigns as appealed judgment error, from the Plaintiff entered. Star, verdict; and, Haggard, to the in the direction of the as to inadequacy injuries plaintiff of the verdict for sustained. jury no no Star offered evidence and contends that against case was conclusively shows it because the evidence independent that the relation that of contrac it was agreement tor. There was between all writing parties, testimony oral surrounding circumstances, well as all parties of the done, acts the work comes from connection with plaintiff’s evidence, principally testimony which was himsеlf all plaintiff. called While the as witness facts light reasonable therefrom most must be considered in the inferences plaintiff’s contentions, favorable to relationship must be de part by plaintiff, termined from all from facts shown Trimble, of them isolated from the rest. ex Gosselin v. rel. [State 328 Mo. (2d) 41 W. the evidence S. Since must taken 801.] undisputed, Jackoway- here Maltz situation as stated in v. namely: Katz Mo. Cap Co., (2d) 909, 82 W. S. “The relationship employee— contractor or of dependent the one or facts; the otlier—as upon and on the here other, record either exclusive and the to be conclusion drawn is one of law.” August 7,
The relation between the defendants commenced about 1931. Prior to one time, delivered papers published Alexander commencing’ junction Highways the Star over route at *5 40-. Higginsville Haggard and south of where lived. Alexander wanted to the sell route and him paid $300 for it. Alex- gave application ander him to fill out the to Star went with and City. him to the They Star office Kansas saw the circula- rural manager, tion who asked he if knew the route and could He it, thought take care like the work. of and if would route affirmatively delivering and started over answered Alеxander’s bought upon June, route in Alexander return. had party. purchased it, Haggard made some from another After changes persons pur- from time time in order to deliver to to September 2, him, from because road conditions. On chased and of signed by a written both defendants. contract clauses) was, as follows: (omitting preliminary
This contract known Party publisher newspapers “The of said First the' the City City Times, Kansas Star, as Kansas The Kansas and The City Sunday necessary to have its Star, publisher, and such it is as through- to carriers published, promptly so delivered various City City, Missouri, of also in the Coun- out the Kansas and various Kansas; in the in considera- ties State of Missouri and and agree, contained, parties tion of the herein hereto promises mutual as follows: agrees party
“First. deliver promptly That second herein to City newspapers and distribute from the office of the Kansas Missouri, Avenue, Company, Eighteenth City, Kansas and Grand routes, along persons places to such and at such and such route or to upon regular time may such schedules from schedule or designated party time be said second and furnished first said designate party, party schedules and said first is to routes and delivery distribution, fоr said distributors carriers and Sunday City City Star, of the Kansas the Kansas Times and the City agrees Star, party part hereby Kansas and the of the second strictly prompt newspapers of adhere delivery make said delivery distribution, as to said for said routes schedules designated writing party part, be shall the first being strict adherence thereto the essence of this contract. Party is to such part “Second. second collect amounts party persons may cash from the to whom deliveries be made may from time part party part as the of the first the second part twenty- fix prescribe. Pаrty time of the shall within second (24) making four from and after collections deliver the hours said part. same to the party of first party part agrees party
“Third. Said of the first part per $45.00- week . the sum of Dollars and . second . (This space filled stipulated commissions, follows: blank in) damages following stipulated for defaults less sums as obligations party part perform of the second failures of ., party part . . and for each time of the first herein contracted replace the vehicle procure to hire or other vehicles or relieve has part making herein party of the sеcond vehicle deliveries expended paid party first provided for, said shall actual costs
843 Kansas upon said by being dependent price the the second party, service. City party for to such Company pay Star third has part agreed party of the second that “Fourth. It further said funds collection of delivery and shall make such and distribution conveyance, shall which own of according means and methods his charge the control of said belong be and to him in the exclusive and subject control not be to the party shall part, of the which second except part, first suрervision any by party of (cid:127)or manner the expressly understood hereby to the of work. results said It vehicle of said part hire or the use party of the first rent does use, any for the liability assume party the or part, of second ’’ using method same. or the of the brought truck, Haggard’s daily which routine was to meet . of junction City, at three A. M. at morning papers from Kansas miles, route Highways 13 40. He over a of about delivered would He and one-half hours cover. which he took about three he p. again papers. afternoon If m. meet the truck about three get off for him. papers would' thrown did not there time who had operated by Matthews, Otto Mr. This truck owned Haggard Highway route. covering a contract with Star containing -1300 news- usually papers, about ten received bundles newspapers. containing also papers five Mail sacks United States in the on his postoffice sacks to towns He would deliver mail get mail would route, papers who took the Star’s persons carrier. These postoffiee box from their mail them in their own City postoffice were sent out from a substation in Kansas mail sacks charges postal there, but had them hauled paid the Star Haggard other delivered' bundles postoffices papers. local with its along his route. newspapers the Star towns to distributors of Alma, Blackburn, Mount Higginsville, Corder, These were at he received Leonard, Shackelford. The rest of and. them paid people him and he them to took were delivered directly from him. to individual sub-
Haggard apparently only delivered direct route, except he outside of the towns on scribers who lived when the local dis- Shackelford took the subscribers at later over Haggard south from persons, To serve went tributor left there. such going any junction city "Warrensburg before limits of town, Shаckelford, from He also his last the towns. went east city Marshall, own subscribers. deliver limits twenty at Confederate Home or more subscribers had employed paid (first someone else but north of Higginsville Weaver) there, to deliver for him while he Polla, and collect then driving paper's the route. The he to his the rest of sold from the rate seven purchased him Star at the were customers at week and he them to per resold his customers and one-half cents fifteen, sixty-five a month. Those per cents rate of cents week-or If by him. paid were from the ordered bought any not re- any time from the Star that did papers at for all sell, destroyed paid for them. He them but had *7 papers his ordered for his the of each month. If subscribers at end pay pay he had to for the did not him he lost what subscribers papers. Several he "draw” to be be- ordered decreased times his pay occasion, cause some of his customers him. On one he did not coal, took his from a subscriber and another time delivered in papers payment being pulled for in out of the mud. two months for Haggard gave receipts customers, supplied to his were which him by receipt the Star. the weeks in eaсh This form showed month so by being punched the or it showed time for which the checked papers advertising paid. back, were On the there matter con- cerning kept the service. a book Star’s want ad collection by own checking payments for his use in made to him his up the given Blank by subscribers. for book were to him sheets places Star. These addresses sheets contained the names and payments of blank on the subscribers. These forms came out keeping delivery truck were free use furnished for his in his He collected accounts with his subscribers. that he never testified any money except dis- Star, occasionally for the one of the envelope by had something him, tributors in an which would send City it, the Kansas to the address would deliver it got occasionally truck some letter papers; when and that distributor, would come out to a with the would stick pass a never it in bundle and it on to the distributor. given any instructions a route re- or schedule twice about but was quired covering; in of the route he he also map send reports day. showing made the time he reached each town Evi- each regard parties dence other acts of the with to the after work progress had been for sоme will after time stated first con- sidering relationship originally established. master, servant, independent contractor,
Definitions of by Agency, the American Law Institute’s Restatement of recently adopted by section were v. Real this court in Barnes Hosiery Mills, 563,108 (2d) 58, Silk Mo. S. W. as follows.- ‘‘ employs A a' principal perform master who another to service is right and who or has physical his affairs controls control the performance of the service. conduct the other in employed "A a person is a master to perform servant service performance physical whose in his affаirs conduct in the of the subject right service controlled or is to control master. is person "An contractor with is contracts him, do but who something another to is not controlled -the subject right other nor réspect control with other’s physical undertaking.'” performance conduct in the of the ' principal determining The factors to be the relation considered parties Restatement, between the are set out in Section as follows:
“(a) which, agreement, extent of control the master may work; exercise over the details of the
“(b) engaged employed whether or not the one ain is distinct occupation business; or
“(c) occupation, whether, kind with reference to in the locality, usually the work done employer the direction of the under by specialist supervision; without
“(d) required particular the skill occupation; in the “(e) employer whether the supplies or the workman the instru- mentalities, tools, place and the work person doing work; “ (f) length person of time for which the employed; *8 “(g) the payment, method of by job; whether the time or the “(h) whether or the a part regular not work is business employer; the “ (i) whether or not the parties they beliеve creating are the re- lationship of master and servant.” In (p. 485),' comment important it is said “the distinction
is between service in which the physical actor’s and his activities time are surrendered to control of the master, and service under agreement accomplish an to or to use care results skill in ac complishing results;” that “those rendering retaining service hut control over the doing manner it servants;” are not agent “an subject is to control as to the manner in which he performs the acts that constitute the agency execution of n (even “subject'to if he is fiduciary duties lоyalty obedience to the principal” by wishes of the “agreeing only to use accomplish care skill to a result”) is in similar to relation (his to principal as such physical conduct conduct) per in its agrees formance one who only accomplish to mere physical re ’’ (cid:127) principles These sults. same, are substantially tests although stated in language, somewhat different in those set out recent decisions of 949; (Mo.), this court. v. Dolph 192 S. W. [Flori Dry Coul v. Peck Co., 870, Goods 326 758; Mo. 32 (2d) S. W. Jackoway-Katz Maltz v. Cap Co., 336 1000, Mo. (2d) 82 W. S. 909; Quarries, Rutherford v. Tobin 336 1171, Mo. 82 (2d)W. S. 918; Superior State ex rel. Hostetter, Mineral Co. v. 718, 337 Mo. (2d) 743; Sargent 85 W. S. Clements, v. 337 Mo. 88 1127, S. W. (2d) 174; Kourik English, v. 340 901; Mo. 367, (2d) 100 W. S. Barnes v. Hosiery Real Silk Mills, 341 563, 58; (2d) Mo. 108 S. W. in jurisdictions authorities other 2 see Am. Jur. 17, 8; see. 2
846 1-6; 29 J. 65, R. L. secs. C. 1027; 188; S. 14 C. J. S. J. C. C. R. 1168; 20 A. L. A. L. 1518-26; R.
1316, secs. Annotations 1918C, 725; annotation Ann. Cas. A. 75 A. L. R. L. R. 627.] the work done outset, seem that At the it would independent business parties distinct and as a was considered purchased by Haggard because separate from that of the Star v. Star-Chronicle predecessor the route. Bernat from his [See right (2d) buy App.), Publishing (Mo. 84 S. W. Co. 429.] recognized apparently established been sell route had Haggard’s also dealings vendor had previous because course of an certainly most commence purchased unusual to it. It would by buying employment creating the of master and servant relation ap employee’s job. It was shown that another him, right to deal with plication and it had the refuse Star subject However, approval. that the of the route to its so sale relationship with an contractor not inconsistent is independent contractor, “to of an because obtain shield competent person.” . . . must . and fit owner . . select Hosiery Mills, part v. A supra.] Real Silk considerable [Barnes with Haggard’s papers work was delivering rural subscribers part This work whom he dealt direct. of his not mentioned Hag- clear, however, that herein above It contract out. set bought people gard resell them a papers profit from the at Star paid He living territory towns. them outside of paid not, whether he were shown when re- and instances daily purchased because of ac- duced number bad ,- goods money He counts. took or services of in instead changed customers; employed able his route to be to new sell together group point (the carrier deliver to a close one living at *9 territory Home); selling (Shackel- Confederate took over additional ford) ; оtherwise relation to and in- conducted his activities with independent dividual subscribers as an business. Restrictions as to territory practices to selling prices are modern even and business between and merchants of dealing in manufacturers various kinds products. part work, Haggard In of it seem that would (cid:127) independent even any physical was more of control over ac- things tivities and over the was in hosiery sold than the salesman Hosiery goods Mills, supra, bought Barnes v. Real Silk no for only delivery. resale orders but took for future The written contract parties, between the delivery coverеd the of of papers bundles to the distributors of Star It in the towns. shows sought by the that the were prompt results deliveries of the newspapers daily by published it, territory to carriers in the to be by Haggard. covered It clearly specifically leaves the means accomplishing to methods results him. The the recitals of independent create an paragraph unquestionably con fourth would directly implication, by changed, by tractor unless some relation or part by other the a provisions or effect of contract as whole. The the have, (a) pointed plaintiff to by out are: and claimed such effect designate delivery right The to carriers routes and schedules for to weekly distributors; (b) (e) salary; right a fixed the to notice; (d) right any terminate the at relation time without the to have for the to persons collect Star from whom collecting) deliveries. These provisions (except were to by a of contained in similar contract considered the Supreme Court Michigan Co., in Journal Gall v. Detroit 158 W. 19 A. R. N. L. right, company, on the part 1164. The court said that “the designate to persons places right designate was but a to give obtained, any result to be did control cоmpany not result;” obtaining over the “no reason method for and that why is a may independent man not to agree, contractor, seen an all, groceries part, deliver or of a sold groceryman, goods by a merchant, doing if the so are sold method and means for entirely employer.” any right left him to without of control Dry In be Company, (held Coul v. Peck supra, Goods the driver to independent contractor) an deliver where was directed what to it, deliveries, take while no there was fixed time to value start delivery. goods of depend upon to be delivered did not time of right designate routes and this kind of a schedules in situation (where the value be newspapers—de articles to delivered — pended upon promptness delivery reasonable and which their time) would become practically worthless seem after certain would designate to be right plans specifications similar to the be followed in other kinds work with which not inconsistent designa relation, only contractor if to a it amounts agent tion kind result is other contracting desired and Agreements wise left free to reach it methods. his own build ing completion surely contracts within time limit would employee. Hаggard right make the ac contractor an had the complish by substituting these results other vehicles or other drivers do delivery and did so. prompt personal It was the and not his physical service making specifically provided it the contract. payment, As to method be noted while paid agreed the same amount each week if ac- were results complished, nevertheless, if he ready so, was not to do re- quired pay the Star what it party had to to accomplish third *10 surely
it. This with as inconsistent the relation of master and servant parties’ was of these commencement relatiоn bargain sale and of the route. If a report servant fails to his for required pay task, is not getting light the cost of it done. In
848 party, to termi right either of appears that the obligation, this it Haggard’s protection any much time was as nate the contract at change occupa his Otherwise, even if desired Star. for the obligated period some have been residence, would tion territory. right to deliveries pay the cost of Star’s shown custom and methods collections, under the him make have require receive only him to meant evidence, apparently by. the through route and trаnsmit on his making deliveries money while only papers. was whom he It driver from received contract envelopes delivered them he received sealed shown that City. con We do not brought papers from Kansas truck which imposed upon contract him duties provision of the sider that change relationship, otherwise estab a collector sufficient making time for collections and did lished, because it fixed'no not^ trips purposes only, specifically make collection but require him to methods. cases done own For other to be his independent means left this news relation contractor exist between holding the Birmingham Sturgeon 149 carriers see v. (Ala.), Post papers and 510; McClatchy (Cal.), 60 Pac. 74; (2d) Bohanon v. Pub. Co. So. Zajic (Neb.), 77; N. 253 W. Creswell v. Charlotte News v. Johnson 408; Shickling (N. C.), Publishing 168 E. Post v. Pub. Co. S. Co. 751; Co., Schnickling Publishing N. E. Post 155 N. E. (Ohio), 154 v. 79; Tyler Newspapers (Pa.), 143; Corp. v. MacFadden 163 Atl. (Tex. App.), (2d) v. Civ. 68 W. Carter Publications Davis S. 640.] (Mo. v. American Press App.), Plaintiff cites Schmitt W. S. (2d) 969, Press, 55, American Semper App. v. 217 Mo. 273 S. W. Press, 1008, Hoelker v. American Mo. W. S. the evidence was held sufficient to show the relation all of which a newspaper servant between In the of master and carrier. independent ease defense of сontractor Schmitt abandoned was opinion eases, was not considered. In each and therefore in the other distinguished those the court the facts from in Gall v. Detroit Journal “right ground Company that of control of the means was as- defendant,” exercised while in sumed and the Gall case there agreement express that it should not so. was do In those eases contemplate personal employment seemed physical also service employed right without Moreover, the individual substitution. agreement to delivery trips the cost of there no if the carrier route, them, purchase make no purchase no did not We, therefore, papers. any sale of hold neither the supplying subscribers nor the written rural contract created a relation servant between the Star Haggard; master and Haggard’s inception independent its status that of con- tractor.
Plaintiff, however, that even original contends if the relation contractor, there was sufficient evidence to *11 show that the Star later assumed and exercised control over such Haggard’s change work as to to that master and Meth- servant. adopted my Haggard, change ods to indicate of relation claimed by assumption greater the Star’s control than the contract con- templated, already have ruling been considered our on charac- ter of selling his business of direct to individual Other subscribers. upon
matters relied can be (1) classified either maintain as efforts to subscription and lists, (2) specifications suggestions increase or or keeping reports about making concerning work, records or (3) required as service by covering the contract delivering to towns.
In the first following classification the should be placed: That investigated was complaints notified of and from in- his subscribers; dividual he that solicited new subscribers near route his to whom he papers; could deliver he subscriptions that solicited mail; be by sent he free (sometimes that hauled other he solicitors come) asked for them who attempted get along his subscribers route; urged that he get subscribers; more one oc- that on casion, when asked letter to come to the Star office in Kansas City, agreed he went there try to increase the number his individual fifty subscribers ten days; within and that he copies furnished free sample papers give prospective subscribers. to the сlassification, Hag- As second it was shown that gard was blank form receipts furnished subscriber’s account sheets for records; requested his own he twice was to and did in a map route; send of his reports showing the time day; reached each town on his route each that he sent lists subscribers; his individual monthly and that he in a report of sent got day. number of each In the third, it was shown Haggard also carried United sacks, containing States mail newspapers, postoffices compensa- on route extra his without ; tion that he form delivered (with letters the Star’s distributors bundles) newspaper in the route; towns his and that аfter the collision, plaintiff in which injured, he made route for two days in a belonging car to Otto who Matthews had Highway route. things
Are these original inconsistent with the relation?- Efforts to maintain increase the volume of expected business would of a or any goods. distributor seller of kind of Producers, whole- independent salers, and manufacturers aid merchants advertising, giving samples, making demonstrations. Solicitation of new sub- only Haggard’s scribers would not increase income but would also increase the value of his business in case he desired to sell it. many kinds, depending
Businesses profits upon volume of through sаles, are no doubt conducted salesmen because better resulte expected merchants to be (when are building own busi- up builds seller’s
up producer’s the sale of the articles' wages. Moreover, plain- fixed income) employees on than ness others, brother brief that Otto Matthews tiff’s assumes employees of subscribers, were the Star. solicit helped were, the Star their contracts with not show what record does *12 relation, anything about it tends indicates their insofar but as Highway 40 a for the of Matthews had contract one to show that as would have been the same Star route, with the so that status his of any asked for or what Haggard’s. solicitors Whether Matthews specifically shown, was ex- increasing not gained by circulation them by mail. cept receive on Gen- that did subscribers all solicitors 25% agent, subscription like life insurance erally a solicitor would be relations. Vert expected bring only contractual to about who is [See Company, 34612, May Metropolitan Insurance No. decided v. Life suggestions or from the Star Term, yet Aid 1937, published.] was an account sheets sample copies, receipts free neither activities, Haggard’s nor a 'assumption physicаl control direction of of reaching for wfflich concerning physical results conduct his subscribers, Reports route, schedule, contracted. Star as to his - only of the contracted for accomplishment results showed parties. helped keep to correct accounts between financial Hosiery blanks, reports Silk samples, to see v. Real Barnes [As investigations requiring Mills, Certainly reports making supra.] being performed was not affect find out wdiether the contract could left own means relationship. their If his accomplishing newspaper of bundles delivery dis- methods of making freedom as tributors, the same of choice surely had them and Mail delivery form letters sent with of United States of also postoffices sacks received wdth them for same towns. Bor- rowing from Matthews, any showing car without of Star’s it, proves interest no emphasizes control but in fact making his freedom of choice as to means and of deliveries. methods assumption We hold evidence that the was not sufficient to an show control, physical of Haggard, of the so activities inconsistent with original change relation contractor as employee. judgment status to that servant or The must, there- fore, be affirmed Star. as Plaintiff’s further is contention $5000 verdict
against grossly inadequate was so judgment that the should ground. be sight right reversed on that Plaintiff lost the eye. of his He also tending sympathetic had evidence to show affliction of eye, left which pain caused considerable time, for impair some an hearing, ment of injury abdominal causing ap traumatic pendicitis, because of an appendectomy operation. had which however, Plaintiff able, largest continue in school. The judg we appeal ment to have been find reversed inadequacy, for after
851 Consoli v. verdict, $1000. approved [Grodsky court the trial ($1000 for 618 (2d) 1082, 26 W. S. 1067, 324 Co., Mo. Bag dated (Mo. App.), S. Strange v. also pelvis); see, Ardison fractured Metropolitan Boggess skull; v. In fractured (2d) ($500 for W. 210, the W. 24 W. S. Mo. S. Railway Co., 118 Street Grodsky ease, In the judgment.] $1000 reverse refused court damages generally “in actions rule to be this court stated the inadequacy, ground on the sole be aside would not set judgment above well-recognized exception, subject to the . rule is . . but this a consideration upon when will interfere appellate noted, courts shockingly inadequate that is so judgment record the whole prej or pаssion, partiality, only result of explained be it can while a and, a substantial amount verdict This udice.” considering reasonable, have been sustained larger amount would Compensation injuries our Workmen’s fixed the standards inadequate Shockingly so judgment “is hold Act, we cannot that this partiality, passion, the result of explained only that it can ’’ prejudice. Ferguson Bradley, GG., concur. affirmed. judgment *13 adopted' opinion Hyde, C., foregoing
PER CURIAM: The except Douglas, opinion judges J., court. All the conctir not a member of the when cause was sub- voting because court mitted. Cowdery Uhrig, Steiner,
Catherine L. H. Anna v. Hill-Behan Corporation, Company, Company, Boeckler Lumber Lumber Realty Corporation, Corporation, Company, Archwill (2d) 412. W. Appellants. S. One, Division December 1937.