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Galentine v. Borglum

Kansas City Court of Appeals
Apr 7, 1941
235 Mo. App. 1141 (Mo. Ct. App. 1941)

Opinion

April 7, 1941.

1. — Negligence — Independent Contractor — Motor Vehicles. General rule is that one is not liable for injury resulting solely from negligence of an independent contractor and where trial of case was upon theory that truck driver was an independent contractor recovery was not allowable against partnership for negligence of truck driver in delivering milk to partnership unless facts and circumstances were shown to bring situation within an exception to general rule.

2. — Negligence — Master and Servant — Nondelegable Duty. The owner of premises that may be dangerous due to defective conditions that render them dangerous in work contracted for is precluded by doctrine of "nondelegable duty" from escaping liability merely by hiring an independent contractor to do work contracted for unless owner takes proper precaution to guard against such dangers.

3. — Negligence — Motor Vehicles. In action for damages for personal injury received by occupant of motor truck alleged to have occurred at street intersection in collision with another motor truck, issue of whether driver of other truck was negligent was for the jury.

4. — Appeal and Error. Upon review of judgment for personal injuries rendered by trial court it is the duty of appellate court to study the evidence and determine therefrom as to whether or not members of a partnership were liable to plaintiff on any theory consistent with the pleadings.

5. — Negligence — Master and Servant — Independent Contractor. One who owns property that may become dangerous cannot delegate a duty by employing independent contractor and escape liability for injury incident to his proprietorship, but if injury occurs by sole negligence of independent contractor and is not due to or connected in any way with the premises the owner is not as a rule liable for negligence of independent contractor.

6. — Negligence — Master and Servant — Independent Contractor. The duty rests on the employer to select a skilled and competent contractor and is in general liable to third persons for the negligent or wrongful acts of an independent contractor employed by him where he knew his character for negligence, recklessness, or incompetency at the time he employed him.

7. — Negligence — Master and Servant — Independent Contractor — Pleading. Where plaintiff based his cause of action in one paragraph of his petition upon the relationship of master and servant alleged to exist between employer and negligent truck driver, an allegation of negligence, in general terms, in hiring and employing an incompetent and unfit person set forth in another paragraph would not preclude consideration of case from standpoint of master and servant if the relation of master and servant actually existed.

8. — Negligence — Master and Servant — Independent Contractor. Members of partnership operating a milk products company held not liable for injuries received in motor car collision alleged to have been caused by truck driver, whom partnership denied was ever in its employ for any purpose, while delivering cans of milk from farmers to company, either upon the theory it was duty of partners to ascertain the qualifications of trucker before engaging him, or upon the theory, under the evidence, that partners were negligent in hiring an independent contractor.

9. — Negligence — Master and Servant — Respondeat Superior. Member of partnership operating a milk products company held not liable under doctrine of "respondeat superior" for injuries received in collision as result of negligence of trucker who, in addition to other of his transportation services for other persons, delivered cans of milk from farmers to the company.

10. — Negligence — Master and Servant — Evidence. A letter written by the company, after collision in which plaintiff was injured, to former customers that in order to classify milk haulers as independent operators, patrons would be required to pay full amount of hauling charge rather than portion thereof as theretofore, held not to make a submissible issue as to existence of relation of master and servant between partners and trucker as such erroneous conclusion of law by partners as to their liability could not impose any greater liability than existed before letter was written.

11. — Instructions — Damages. Instruction authorizing jury to allow plaintiff damages for loss of past and future earnings held erroneous since there was no evidence as to his earning capacity either before or after the collision in which he sustained his injuries.

Appeal from Gentry Circuit Court. — Hon. Ellis Beavers, Judge.

JUDGMENT AS TO WM. COE, REVERSED AND REMANDED. JUDGMENT AS TO REMAINING DEFENDANTS REVERSED.

A.F. Harvey and Mayer, Conkling Sprague for appellants, Axel Borglum, John A. Knudsen and Edward Knudsen.

(1) The trial court erred in refusing to give to the jury, over the exception of these appellants, the peremptory Instruction "C" in the nature of a demurrer to all the evidence in the case, which said Instruction "C" was requested by these appellants at the close of all the evidence in the case. (a) The evidence in the case as a whole establishes that William Coe was not an agent, servant or employee of these appellants. The trial court correctly ruled that the evidence was not sufficient to establish the relationship of master and servant between these appellants and William Coe, correctly ruled that the doctrine of respondeat superior did not apply here, and correctly refused to submit plaintiff's case to the jury as against these appellants upon that theory. The evidence in the case does establish that, as to these appellants, Coe was an independent contractor engaged in an independent trucking business of his own, and that either these appellants nor any one else had any control or right of control over Coe, or his trucking business, or his truck driving. Dorsett v. Pevely Dairy Co. (Mo. App.), 124 S.W.2d 624; Vert v. Met. Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252; Skidmore v. Haggard (Mo.), 110 S.W.2d 726; Barnes v. Real Silk Hosiery, 341 Mo. 563, 108 S.W.2d 58; Bernat v. Star-Chronicle Pub. Co. (Mo. App.), 84 S.W.2d 429. (b) There was no evidence upon which a finding could be based that Coe, the independent contractor, was incompetent or unfit to drive the truck in the collection and delivery of milk cans, which was the work he contracted to do. Burns v. McDonald Mfg. Co., 213 Mo. App. 640, 645, 646; Allen v. Lumber Co., 171 Mo. App. 492, 501; Tucker v. Telephone Co., 132 Mo. App. 418, 426; Lee v. Iron Works, 62 Mo. 565; Igo v. Boston R. Co. (Mass.), 90 N.E. 574, 575; Naniko v. Transit Co., 125 N.Y.S. 389, 391; Jas. Stewart Co. v. Newby, 266 F. 287, 291; Pittsburgh R. Co. v. Thomas, 174 F. 591; Morstad v. Railroad Co. (N. Mex.), 170 P. 886, 888; James v. Coal Co. (Iowa), 169 N.W. 121, 124. (2) The court committed reversible error in giving plaintiff's Instruction No. 1, over the objection and exception of these appellants. (3) The trial court erred in giving to the jury, over the objection and exception of these appellants, Instruction No. 2, requested by plaintiff, which authorized the jury to allow plaintiff damages for loss of past and future earnings. The evidence failed to support such submission in the measure of damages instruction. Chilcutt v. Le Clair (Mo. App.), 119 S.W.2d 1; Putnam v. Unionville Granite Works (Mo. App.), 122 S.W.2d 389. (4) The trial court erred in giving to the jury, over the objection and exception of these appellants, Instruction No. 7, which was given by the court to the jury at the request of the plaintiff, and which told the jury that the opinions of experts "are merely advisory and not binding upon the jury." Conduitt v. Trenton Gas Elec. Co., 326 Mo. 133, 144, 145, 41 S.W.2d 21; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84, 95; Davis v. Independence, 330 Mo. 201, 49 S.W.2d 95; Phares v. Century Elec. Co., 236 Mo. 961, 968, 82 S.W.2d 91; Zeikle v. St. Paul, etc., R. Co. (Mo. App.), 71 S.W.2d 154, 156. (5) The trial court, over the exception of these appellants, erred in overruling and denying the motion of these appellants to discharge the jury panel which was made by these appellants during the voir dire examination of the jury panel because plaintiff's counsel, in an attempt to prejudice the jury, injected into the case the suggestion to the jury that one or all defendants were protected by liability insurance. (a) It is the well-established rule in Missouri that where good faith is not shown, it is prejudicial to the defendants in an automobile accident case to have injected into the case the suggestion that the defendants are protected by liability insurance and therefore will not or may not have to pay the judgment rendered, but that an invisible insurance corporation will ultimately have to bear the burden of the payment of any judgment rendered. Carter v. R.I. Bus Lines (Mo.), 139 S.W.2d 458, 461; Rytersky v. O'Brine, 355 Mo. 22, 27, 28, 70 S.W.2d 538, 540; Olian v. Olian, 332 Mo. 689, 693, 698, 699, 59 S.W.2d 673, 677; Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4; Robinson v. McVay (Mo. App.), 44 S.W.2d 238, 240. (b) The voir dire question asked by plaintiff's counsel was an obvious attempt to convey to the jury the idea and suggestion that these appellants or all the defendants were protected by liability insurance on the automobile collision in this case. Plaintiff's counsel took the deposition of defendant Borglum on November 24, 1939, and then asked Borglum the question and was then told that there was no liability insurance protection in the case. The trial began on March 20, 1940. Upon the trial, and prior to asking the insurance question of the jury panel, plaintiff's counsel made no inquiry of any of defendants' counsel with regard to liability insurance coverage, made no statement to either the court or defendants' counsel that he believed or had any reason to believe there was any insurance coverage in the case and asked no permission of the court to ask any such question. The conduct and behavior of plaintiff's counsel, the statements made and questions asked by plaintiff's counsel of the witnesses during the inquiry into the insurance question out of the hearing of the jury, the argument of plaintiff's counsel to the jury about "the insurance company," all clearly reflect an intentional effort to prejudice the jury by causing the jury to believe there was insurance coverage when in truth and in fact there was not and plaintiff's counsel had no cause to believe that there was. Where no good reason appears of record for the injection of the insurance question into the case, the appellate courts indulge the legal presumption that it was not done in good faith. The trial court recognized the guiding principles laid down by the appellate courts that plaintiff's counsel, before asking such a question, should first state out of the hearing of the jury that he believes there is insurance coverage, ask defendants' counsel whether there is, or prove the existence of such coverage, but the trial court nevertheless declined to discharge the jury panel. It affirmatively appears here that there was no insurance coverage, and that plaintiff's counsel had no reasonable cause to believe there was. Carter v. R.I. Bus Lines (Mo.), 139 S.W.2d 458, 462; Olian v. Olian, 332 Mo. 689, 692, 698, 59 S.W.2d 673; Wack v. Schoenberg Mfg. Co., 331 Mo. 197, 53 S.W.2d 28, 30; Smith v. Star Cab Co., 323 Mo. 441, 19 S.W.2d 467, 469; Maurizi v. Western C. M. Co., 321 Mo. 378, 11 S.W.2d 268, 274. (6) The trial court, over the exception of these appellants, erred in refusing the request of these appellants, after the testimony taken conclusively established there was no liability insurance coverage in the case, to instruct the jury that plaintiff's counsel had no authority to ask the insurance question, and the court likewise erred in refusing to instruct the jury that no insurance company was defending the case. (7) The trial court erred in refusing, upon the motion of these appellants and over the exception of these appellants, to discharge the jury because of the misconduct and the prejudicial argument of plaintiff's counsel in telling the jury in his final argument to the jury at the close of the case that he (plaintiff's counsel) wanted the jury to "find out about the insurance company and see if you (the jury) don't think we (plaintiff and his attorney) are right." The argument was rendered more prejudicial by the insurance question asked by plaintiff's counsel on voir dire and by the refusal of the court to state to the jury that there was no liability insurance coverage in the case. Rytersky v. O'Brine, 335 Mo. 22, 28, 70 S.W.2d 538; Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4. (8) The trial court, over the exception of these appellants, erred in admitting in evidence the testimony of William Coe that prior to September 10, 1938, there was a collision between the Frank Lykins car and Coe's truck, and that there was a collision between the Oliver Jennings car and Coe's truck, because such testimony was immaterial to any issue in the case, had no probative value and did not tend to prove (a) incompetency of Coe, (b) that Coe could not safely operate a truck, (c) that Coe was ever negligent, (d) that the collision in issue resulted from any incompetency of Coe, (e) that any incompetency of Coe was or should have been known to appellants, or (f) that after knowledge, actual or constructive, of any incompetency of Coe, these appellants thereafter negligently permitted Coe to haul milk to their plant. There being no evidence of prior negligence and no evidence of incompetency to safely operate a truck, such excursions into the facts and circumstances of other accidents under different conditions at different places were not only not material to any issue on trial, but also opened the door to side issues which misled and prejudiced the jury. Friedman v. United Rys. Co., 293 Mo. 235, 245; Hipsley v. Railroad, 88 Mo. 348, 354; Horr v. Ry. Co., 156 Mo. App. 651; Jones v. Hedges (Cal.), 12 P.2d 111, 116; Anderson v. Eaton (Okla.), 68 P.2d 858, 861; Neely v. Railroad Co. (S.C.), 117 S.E. 55, 56; Alaga Coach Lines v. McCarroll (Ala.), 151 So. 834, 836; Hollomon v. Hopson (Ga.), 166 S.E. 45, and cases cited; Darden v. Rd. Co. (Iowa), 239 N.W. 531, 533, and cases cited; Cobb Brick Co. v. Lindsay (Tex.), 277 S.W. 1107, 1110, 1111, and cases cited. (9) The trial court, over the exception of these appellants, erred in overruling the motion and request of these appellants that the trial court strike from the record and instruct the jury to disregard the testimony of William Coe that prior to September 10, 1938, there was a collision between the Frank Lykins car and Coe's truck, and that there was a collision between the Oliver Jennings car and Coe's truck because such testimony was immaterial to any issue in the case, had no probative value and did not tend to prove (a) any incompetency of Coe, (b) that Coe could not safely operate a truck, (c) that Coe was ever negligent, (d) that the collision in issue resulted from any incompetency of Coe, (e) that any incompetency of Coe was or should have been known to appellants, or (f) that after knowledge, actual or constructive, of any incompetency of Coe, these appellants thereafter negligently permitted Coe to haul milk to their plant. There being no evidence of prior negligence and no evidence of incompetency to safely operate a truck, such excursions into the facts and circumstances of other accidents at different places under different conditions were not only not material to any issue or trial, but also opened the door to side issues which confused and prejudiced the jury. (10) The trial court, over the exception of these appellants, erred in commenting on the evidence in the case, erred in orally and erroneously undertaking to instruct the jury on the law of the case, and erred in injecting false and foreign issues into the case, in that, in the presence and hearing of the jury and during the cross-examination of William Coe with respect to collisions with other cars, the trial court stated, (a) "the fact that he (Coe) had these accidents is merely preliminary, the actual gist is whether it was inefficiency," and (b) "it is the matter of care exercised by them (these appellants) — whether or not it would be due care without having any knowledge," and (c) "whether or not this man (Coe), prior to this time (September 10, 1938) and after this time (September 10, 1938), exhibited by his acts, to show he was competent for this business he was engaged in and if at the time these matters took place he was efficient, you can show it." (1) The statements of the trial court were reversibly erroneous because they were improper and prejudicial comments on the evidence. Mahaney v. Auto Transit Co., 329 Mo. 793, 800; Fantroy v. Schirmer (Mo. App.), 296 S.W. 235, 237; Wair v. Am. Car Fdy. Co. (Mo. App.), 285 S.W. 155, 158; Stratton v. Barnum (Mo. App.), 263 S.W. 476, 479; Clear v. Van Blarcum (Mo. App.), 241 S.W. 81, 82, 83. (2) The statements of the court were erroneous for injecting false and foreign issues into the case. State ex rel. v. Allen, 124 S.W.2d 1080. (3) And, as such, were erroneous and oral instructions to the jury. Primmer v. Am. Car Fdy. Co. (Mo. App.), 299 S.W. 825, 827; Belk v. Stewart, 160 Mo. App. 706, 142 S.W. 485.

J.V. Gaddy for appellant, William Coe.

(1) The court committed reversible error in giving plaintiff's Instruction No. 1, over the objection and exception of this appellant. (2) The trial court erred in giving to the jury, over the objections and exception of this appellant, Instruction No. 2, requested by plaintiff, which authorized the jury to allow plaintiff damages for loss of past and future earnings. The evidence failed to support such submission in the measure of damages instruction. Chilcutt v. Le Clair (Mo. App.), 119 S.W.2d 1; Putnam v. Unionville Granite Works (Mo. App.), 122 S.W.2d 389. (3) The trial court erred in giving to the jury, over the objection and exception of this appellant, Instruction No. 7, given upon behalf of the plaintiff, which instructed the jury that the opinions of experts were advisory and not binding on the jury. Conduitt v. Trenton Gas Elec. Co., 326 Mo. 133, 134, 31 S.W.2d 21; Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84, 95; Phares v. Cent. Elec. Co., 336 Mo. 961, 82 S.W.2d 91; Zeikle v. St. Paul, etc., R. Co., 71 S.W.2d 154. (4) The trial court, over the exception of this appellant, erred in denying and overruling this appellant's motion to discharge the jury panel, made during the voir dire examination, because plaintiff's counsel injected into the case the suggestion to the jury that one or all of the defendants were protected by liability insurance. Carter v. Rock Island Bus Lines, 139 S.W.2d 458, 461; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538; Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4; Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673; Robinson v. McVay (Mo. App.), 44 S.W.2d 238. (5) The trial court erred in refusing to discharge the jury, over the exception of this appellant, because of the misconduct and prejudicial argument of plaintiff's counsel in his closing argument to the jury in telling the jury he wanted the jury to find out about the insurance company. Rytersky v. O'Brine, 335 Mo. 22, 28, 70 S.W.2d 538; Hannah v. Butts, 330 Mo. 876, 51 S.W.2d 4. (6) The trial court erred in admitting in evidence and erred in refusing to strike out the testimony of this appellant, upon cross-examination by plaintiff's counsel, that prior to September 10, 1938, there was a collision between the Frank Lykins car and this appellant's truck and that there was a collision between the Oliver Jennings car and this appellant's truck, because such testimony was immaterial to any issue in the case, had no probative value, opened up excursions into collateral matters and side issues not connected with the case on trial, confused and prejudiced the jury against this appellant, and did not tend to prove (a) incompetency of this appellant, (b) that this appellant could not safely operate a truck, (c) that this appellant was ever negligent, (d) that the collision in issue resulted from any incompetency of this appellant, (e) that any incompetency of this appellant was or should have been known to the other appellants, or (f) that after knowledge, actual or constructive, of any incompetency of this appellant, the other appellants thereafter negligently permitted this appellant to haul milk to their plant. Friedman v. United Rys. Co., 193 Mo. 235, 245; Hipsley v. Railroad, 88 Mo. 348, 354; Horr v. Railway Co., 156 Mo. App. 651; Jones v. Hedges (Cal.), 12 P.2d 111, 116; Anderson v. Eaton (Okla.), 68 P.2d 858, 861; Neely v. Railroad Co. (S.C.), 117 S.E. 55, 56; Alaga Coach Lines v. McCarroll (Ala.), 151 So. 834, 836; Hollomon v. Hopson (Ga.), 166 S.E. 45, and cases cited; Darden v. Rd. Co. (La.), 239 N.W. 531, 533, and cases cited; Cobb Brick Co. v. Lindsay (Tex.), 277 S.W. 1107, 1110, 1111, and cases cited. (7) The verdict is so excessive as to indicate that it is the result of bias, passion and prejudice upon the part of the jury. Erxleben v. Kaster (Mo. App.), 21 S.W.2d 195; Foulks v. Lehman (Mo. App.), 17 S.W.2d 994; Kramer v. Laspe (Mo. App.), 94 S.W.2d 1090; Watkins v. Spears Ship By Truck (Mo. App.), 72 S.W.2d 818.

Ernst Williams and Seevers Hockensmith for respondent.

(1) Although the trial court refused to instruct the jury on the theory of master and servant relationship, the evidence in this case clearly shows that William Coe was an agent, servant and employee of the appellants, Borglum, Knudsen and Knudsen, and the court should have given respondent's instructions on the theory of master and servant relationship. Andres v. Cox (Mo. App.), 23 S.W.2d 1066; Simmons v. Murray, 209 Mo. App. 248, 234 S.W. 1009. A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. Sec. 2, Restatement of the Law of Agency, by American Law Institute. To obtain the shield of an independent contractor, the owner or proprietor must: first, select "a competent and fit person," engaged in an independent calling; second, the work committed to him must be neither "attended with danger to others" nor unlawful; third, the contractor must be allowed to do the work according to his own methods and only subject to control by the owner "as to the results of his work." Without the concurrence of each and all of these conditions, the condition of independent contractor cannot legally exist. Salmon v. Kansas City, 241 Mo. 14, 57, 145 S.W. 16, 29, 39 L.R.A. (N.S.) 328; Maltz v. Jackoway-Katz Cap Co. et al., 336 Mo. 1000, 82 S.W.2d 909; Kincaid v. Birt (Mo.), 29 S.W.2d 97. (a) In passing upon a demurrer to the evidence, the court is required to draw every inference of fact in favor of the party offering the evidence, which the jury might, with any degree of propriety, have drawn in his favor. Andres v. Cox (Mo. App.), 23 S.W.2d 1066. The court is not at liberty in passing on such demurrer to make inferences of fact in favor of the defendant to countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff. That would clearly be usurping the province of the jury. Buesching v. St. Louis Gaslight Co., 72 Mo. 219, 231, 39 Am. Rep. 503; Karguth v. Donk Bros. Coal Coke Co., 299 Mo. 580, 597, 253 S.W. 367; Sexton v. Sexton, 295 Mo. 134, 243 S.W. 315. To justify the taking of the question from the jury, it is necessary for it to be held that the evidence definitely shows facts constituting the person rendering the service to be an independent contractor, and enforces that conclusion as a matter of law. Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008, 1011; 14 R.C.L. 79; Lane v. Roth (C.C.A.), 195 F. 255. (b) It is not always to say that the facts of the given case bring it within the definition of an independent contractor, and necessarily the determination of each case must depend upon its own facts, and where the facts are disputed the proper course it seems to be to leave it to the jury under proper instructions to say whether one was an independent contractor or a servant. Gayle v. Mo. Car Foundry Co., 177 Mo. 447, 76 S.W. 987, 992; Hoelker v. American Press, 296 S.W. 1008, 1010; Maltz v. Jackoway-Katz Cap Co. et al., 336 Mo. 1000, 82 S.W.2d 909. (c) It is generally held that, when it appears that the actual tort-feasor was at the time the injury occurred in the employment of the party whom it is sought to hold responsible for the injury, the latter, if he relies on that defense, has the burden of proving that the tort-feasor was an independent contractor. Central Coal Iron Co. v. Grider's Adm'r., 115 Ky. 745, 74 R.C.L. 78; Semper v. American Press, 217 Mo. App. 55, 273 S.W. 186, 189; Dillon v. Hunt, 82 Mo. 150, 155; Johnson v. Great Northern Lumber Co., 48 Wn. 325, 93 P. 516; Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008, 1011. (We shall take the appellants' points assigned in their briefs and notice them in order.) (2) The trial court did not err in refusing to give to the jury appellants' peremptory instruction "C." 39 C.J., sec. 1550, pages 1338-1339; Baker v. Scott County Milling Co., 323 Mo. 1089, 20 S.W.2d 494; Mullich v. Brocher, 119 Mo. App. 332, 97 S.W. 549; Mallory v. La. Pure Ice Co., 6 S.W.2d 617; Solomon v. Kansas City, 241 Mo. 14; M.C. Groth v. St. Louis, 215 Mo. 191, 208; Brannack v. Elmore, 114 Mo. 55, 21 S.W. 451; Dillon v. Hunt, 82 Mo. 150, 155; Young v. Sinclair Refining Co. (Mo. App.), 92 S.W.2d 995, 1000; Brown v. Quercus Lumber Co., 202 Mo. App. 573, 209 S.W. 310; O'Hara v. Chicago A.R. Co., 95 Mo. 662, 9 S.W. 23. The jury may consider the appearance and conduct of a witness, to aid them in determining whether he has suitable qualifications and intelligence to be entrusted with a responsible duty. Keith v. New Haven N. Co., 140 Mass. 175, 3 N.E. 28. (3) The court did not commit error in giving plaintiff's Instruction No. 1. A similar instruction was approved. Baker v. Scott County Milling Co., 20 S.W.2d 494; Melon v. The K.C., St. J. C.R. Ry. Co., 85 Mo. 599. (4) Instruction No. 2 offered and given on the part of the plaintiff was general in its nature and under the evidence of plaintiff would warrant a finding by the jury that the condition of plaintiff was such that he would suffer some loss of future earnings, and the giving of this instruction by the trial court, where no instruction was offered by the defendants limiting or qualifying its effect, was not reversible error. Taylor v. Terminal R. Ass'n of St. Louis (Mo. App.), 112 S.W.2d 944; Williams v. Guyot, 344 Mo. 372, 126 S.W.2d 1137; Smith v. Mederacke, 302 Mo. 538, 259 S.W. 83; Bishop v. Musick Plating Works (Mo. App.), 3 S.W.2d 256; Winterman v. United Ry. Co. of St. Louis (Mo. App.), 203 S.W. 486. (5) The court did not commit prejudicial error in giving Instruction No. 7. This instruction has been approved many times by the appellate and Supreme Courts. Copeland v. Wabash Railroad Co., 175 Mo. 650, 662, 25 S.W. 106; Markey v. Louisiana Maryland R.R. Co., 185 Mo. 348, 84 S.W. 61. (a) Recent decisions have held that the instruction should no longer be given. Phares v. Century Electric Co., 336 Mo. 961, 82 S.W.2d 91. (b) However, it is not such prejudicial error to warrant a reversal of this case to give said instruction under the facts and circumstances in this case. Kunkel v. Griffith, 325 Mo. 392, 29 S.W.2d 64; Phares v. Century Electric Co., 336 Mo. 961, 82 S.W.2d 91. (c) Court will not reverse case unless error in instruction materially affects the merits of the action. Sec. 1062, R.S. 1929, p. 1352, West. Ann.; Buck v. Radcliff Motor Co. (Mo. App.), 125 S.W.2d 888. An erroneous instruction must be prejudicial in order to warrant a reversal. Barkley v. Ass'n, 153 Mo. 300; 54 S.W. 482; King v. King, 155 Mo. 406, 56 S.W. 534; Jones v. Railway, 178 Mo. 528, 77 S.W. 890, 101 Am. St. Rep. 434; Dorroh v. Bank (Mo. App.), 7 S.W.2d 374. (d) Instruction on issue outside pleading and evidence and which were useless and harmless is not prejudicial error. Feil v. Wells (Mo. App.), 268 S.W. 893; Lester v. Hugley (Mo. App.), 230 S.W. 355. (6) The trial court did not err in refusing to discharge the jury panel on the voir dire examination. All that was asked on the voir dire examination that even tended to indicate in any degree, if it did, that there might be insurance in the case, was as follows: "Are any of you agents for an insurance company or do any of you have any liability insurance?" After this question was asked, counsel for these appellants then arose in front of the jury and in a loud voice said, "There is no liability insurance for anybody to have and I think it is proper for the jury to be told so." There was no bad faith shown on the part of Mr. Williams in this examination, which always has to be shown before this court can say that it was prejudicial error. Further, the actual facts show that the appellant Borglum said out of the hearing of the jury that they carried liability insurance on trucks employed in their business and the policy covers the operation of the plant, servants and agents, and that they cover their salesmen. Plaintiff's counsel had right to ask said question on voir dire examination. Wagner v. Gilsonite Const. Co. (Mo.), 220 S.W. 890, 897-898; Wendel v. City Ice Co. of K.C., 224 Mo. App. 152, 22 S.W.2d 215; Wallnitz v. Werner (Mo. App.), 241 S.W. 668, 670. In selecting jury plaintiff has reasonably wide latitude in making inquiry and have jurors answer on oath to ascertain whether insurance company is conducting or assisting defense, and, if so, to examine the veniremen concerning their relationship to defendant company. Olian v. Olian, 59 S.W.2d 673; Smith v. Lammert (Mo.), 41 S.W.2d 791. Counsel for plaintiff is not required to prove that an insurance company, or insurance agency, is interested before inquiring of the members if they are connected with either. He is presumed to be acting in good faith when he makes the inquiries. If it appears from the record that counsel had reasonable cause to believe an insurance company, or an insurance agency, was interested, and that he acted in good faith in making the inquiries, the sound discretion of the court in controlling and directing the examination will be sustained. Maurizi v. Western Coal Mining Co. (Mo.), 11 S.W.2d 274; Smith v. Star Cab Co., 19 S.W.2d 467. Upon appeal from a ruling upon a motion for new trial, on the ground of counsel's misconduct, the appellate court will defer largely to the discretion of the trial judge, since he is able to see and determine more clearly than an appellate court the effect of such conduct on the minds of the jury, and since trial judge presumably knows counsel and is in closer touch with the proceedings than this court on the cold record, matters of this kind must be left to trial court's discretion. Carter v. Rock Island Bus Lines (Mo.), 139 1152 S.W.2d 458, l.c. 462; O'Hara v. Land Const. Co., 197 S.W. 163. (7) The trial court did not err in refusing the appellants' request to instruct the jury that plaintiff's counsel had no authority to ask the question referred to in the preceding point or in failing to instruct the jury that there was no insurance in the case. The evidence shows that the appellant Borglum told the court that he had a policy of insurance covering his trucks and the operation of his plant, and that this covered his servants and agents, and that the defendant Borglum would not produce the policy for the inspection of the court and plaintiff's counsel. Clayton v. Hydraulic Press Brick Co., 27 S.W.2d 52; Harms v. Emerson Electric Electric Mfg. Co., 41 S.W.2d 375; Wilson v. Spuhler (Mo. App.), 20 S.W.2d 556. (8) The appellants charged that the court erred in refusing to discharge the jury because of the closing argument of plaintiff's counsel in which he said, ". . . find out about the insurance company." We insist the court did not err in refusing to discharge the jury on this ground and we refer the court to pages 420 and 421 to the matter complained of and the ruling of the court thereon which is as follows, to-wit: "Mr. Williams: I don't think it will take over fifteen minutes for me to tell my side and to state why we ought to win in this lawsuit — because we are right. I am telling you we are on the right side and that is the reason I want to present this man's case to you and I want you to know why and find out about the insurance company and see if you don't think we are right. Mr. Conkling (interrupting): Just a moment. May we have the jury excused? (Jury excused.) (Motion to discharge jury made.) Mr. Williams: I don't think I said insurance company. The Court: You said the insurance company, but I don't know but what it makes matters worse to call attention to it. No bad faith on the part of counsel, I am sure of that. Just a slip of the tongue. Motion to discharge the jury overruled." This court can see that there was no bad faith on part of plaintiff's counsel and that the trial judge who was present and who knew the counsel and could determine the effect upon the jury so recognized in his ruling, and within his discretionary power the court properly denied the request of the appellant. The trial judge in ruling thereon specifically stated that there was no bad faith on the part of counsel for plaintiff. (9-10) The appellants complain under point (8) and (9) that the trial court erred in admitting evidence and erred in overruling the motion to strike from the record and to instruct the jury to disregard the testimony of William Coe that prior to September 10, 1938, he had a collision with the Frank Lykins car and Oliver Jennings car. We insist that the court did not commit error in admitting this testimony nor in his failure to strike it from the record and to instruct the jury to disregard it. We refer the court to page 304 in which the question in regard to the collision with Frank Lykins' daughter was asked. "Q. Now prior to this collision of September 10, 1938, you had a collision with Frank Lykins' daughter? A. No, sir." After the question was asked and after the answer was given the appellants in this case objected as shown by page 304. It is shown by the bill of exceptions that no objection was made prior to the answer and there was no objection made to other questions in regard to the Frank Lykins collision. Nor was any objection made giving a reason therefor to the testimony in regard to the Oliver Jennings collision. The only objections made by the appellants were after the questions were answered and after the matter had been fully answered by the witness. We refer the court to the matter complained of at the bottom of page 303 and pages 304, 305 and 306, and also appellants' counsel cross-examined witness Coe on his competency — how far he had driven truck, etc. A party cannot object to a question to a witness for the first time after the question is answered. Foster v. Mo. Pac. Ry. Co., 115 Mo. 165, 21 S.W. 916; Schulz v. St. Louis-San Francisco Ry. Co., 319 Mo. 8, 4 S.W.2d 762; Curtis v. Truitt, 7 S.W.2d 383. An objection to evidence must be made when the evidence is offered. Hudson v. K.C. Ry. Co. (Mo.), 246 S.W. 576. Where no objection is made to evidence at the time given, and no motion made to strike it, an objection thereto, after the examination has proceeded for some time comes too late and is waived. Gieshe v. Redemeyer (Mo. App.), 224 S.W. 92, 94. After allowing testimony without objection one cannot have it excluded because adverse. Robertson v. Energy Const. Co. (Mo. App.), 294 S.W. 426. A party will not be allowed to object to testimony for the first time by means of instructions. Dreshman v. Stifel, 41 Mo. 184, 97 Am. Dec. 268; Amick v. Henman (Mo. App.), 241 S.W. 988. An objection to a question must be specific and state the grounds of objection and unless said grounds or reasons are stated it is not error to overrule it. Kelm v. Union Ry. Transit Co., 90 Mo. 314, 2 S.W. 427; Boston v. Murray, 94 Mo. 175, 7 S.W. 273; Jordan v. Mo. Kan. Tel. Co., 136 Mo. App. 192, 116 S.W. 432; Stephens v. Fischer, 161 Mo. App. 386, 143 S.W. 1101; Gary v. Averill (Mo.), 12 S.W.2d 747. (a) Plaintiff maintains that such testimony is admissible, relevant and material to the issue in this case for the reason that the cause of action was finally submitted to the jury on the issue of the incompetency and inefficiency of William Coe for his position and the above-named appellants had or should have had knowledge of the incompetency of William Coe. Crane v. Mo. Pac. Ry. Co., 87 Mo. 588; Fink v. Mo. Furnace Co., 10 Mo. App. 61; Anderson v. McPike, 41 Mo. App. 328. The testimony of defendant, William Coe, as to his collision with the Frank Lykins car and his testimony relating to the collision of the Oliver Jennings car and the Coe truck was competent and material when coupled with the evidence of the poor eyesight of defendant, William Coe, previously admitted, and which fact of bad eyesight was patent to the appellants Borglum et al. from the beginning of his employment. 14 L.R.A. (N.S.) 751, Note; Grube v. Mo. Pac. Ry. Co., 98 Mo. 330, 339. In the case of Huffman v. C., R.I. Pac. Ry. Co., reported in 78 Mo. 50, 53, the court said: ". . . it cannot be denied that `several' such occurrences, or perhaps one or two, prior to the one forming the basis of the action, might be a sufficient ground wherefrom the jury might very well infer notice to the corporation of the unfitness of an engineer for further employment, found guilty of such acts." Neilon v. K.C. St. Joe C.C. Ry. Co., 85 Mo. 599, 609. The incompetency of a servant to discharge the duties of his position is not established only by proof of his general reputation, but by testimony of many instances of carelessness and negligent conduct in the performance of such duties as well. Consolidated Coal Co. v. Senizer, 179 Ill. 370, 53 N.E. 733, 14 L.R.A., note 761. Evidence of physical characteristics of a servant is proper upon the question of his competency for his place if it is open and patent to the observation of the employer. Olsen v. Andrews, 168 Mass. 261, 47 N.E. 99. (11) The trial court did not comment on the evidence nor was any error made by the trial court as charged by the appellants under their point (10). A careful consideration of the words used by the court at the time complained of will disclose that the observations of the court were not prejudicial comments on the evidence, but consisted entirely of statements made by the court to counsel for defendants who were attacking, in a very rude manner, the ruling of the court on the admissibility of evidence. They invited the response of the court by their arguments, and Mr. Conkling, appellants' counsel, averred in the presence and hearing of the jury, "The mere fact this witness may or may not have a collision is no issue in this case. He may have been right in all. I may have had a thousand accidents and may have been right in all of them." Are the reins drawn so tight on the trial courts that they must sit mute and dumb under such circumstances and not be permitted to suggest to counsel what facts or acts they will be permitted to show in answer to pertinent or impertinent inquiry from counsel? Courts have sound discretion in the conduct of trials and the circumstance under which observations are made must be considered in determining whether comments are prejudicial and abuse of discretion. Ogilive v. K.C. Pub. Serv. Co., 27 S.W.2d 733; Banks v. Empire Dist. Electric Co., 4 S.W.2d 875, 879; Stewart v. Am. Ry. Exp. Co., 18 S.W.2d 520; Heier v. Funsch, 61 S.W.2d 253; (See matters complained of by appellants.) (12) Appellant Coe, under (7) of his points and authorities, complains that the verdict is excessive and to be the result of bias, passion or prejudice upon the part of the jury. Said verdict is not excessive in this case or the result of bias or prejudice of the jury. Ogilive v. K.C. Pub. Serv. Co. (Mo. App.), 27 S.W.2d 733; Ridley v. Prior, 290 Mo. 10, 233 1155 S.W. 828; Crews v. Schmucke Hauling Storage Co., 8 S.W.2d 624; Holzemer v. Met. Street Ry. Co., 261 Mo. 379, 169 S.W. 102; Copeland v. Wabash Railroad Co., 175 Mo. 650, 75 S.W. 106. (a) No complaint or ground was set forth in the appellant William Coe's motion for new trial that said verdict was excessive or was the result of bias, passion and prejudice upon the part of the jury. Since the appellant, William Coe, is the only one raising this point nothing is before this court for review, nor was said matter brought before the trial court in the motion for new trial or motion in arrest of judgment by said appellant, William Coe. Therefore it is not reviewable on this appeal. Alexander v. Rolfe, 74 Mo. 495; Corrigan v. Kansas City, 93 Mo. App. 173; Edmunds v. Mo. Electric Light Power Co., 76 Mo. App. 610; Finley v. Dyer, 79 Mo. App. 604; Blanton v. Dold, 109 Mo. 64, 18 S.W. 1149; State ex rel. Statts v. Farmers Merchant's National Bank, 144 Mo. 381, 46 S.W. 148; Slaughter v. Sweet and Piper Horse Mule Co. (Mo. App.), 259 S.W. 131; Ridenhous v. Kansas City Cable Ry. Co., 102 Mo. 270, 14 S.W. 760.


This is an action for damages for personal injury alleged to have occurred in an automobile collision.

The petition of plaintiff alleged that defendants Borglum, Knudsen and Knudsen were a partnership operating the Center Milk Products Company; that they purchased milk from farmers and transported it to their plant in Maryville, Missouri, in trucks; that William Coe was an employee of the three above-named partners and as such employee of said partnership operated a truck, collected milk from the farmers and transported it to the Center Milk Products Company plant at Maryville; that the truck driven by William Coe for the partnership struck the vehicle in which plaintiff was riding and injured plaintiff. The negligence pleaded was a violation of a pleaded Stanberry ordinance, an excessive rate of speed, a failure by Coe to keep a lookout, a failure to keep the truck under control, a violation of the humanitarian rule.

The petition further alleged as follows:

"1. That defendants, Axel Borglum, John A. Knudsen and Edward Knudsen, at all the times herein were negligent and careless and acted negligently and wrongfully in employing and having defendant William Coe, deliver milk to them at their plant in Maryville, Missouri, in that said defendant, William Coe, was incompetent and his eyesight and vision defective and bad and so defective and bad that said William Coe could not and did not safely drive and operate his said truck in delivering milk to said defendants and said defendant, William Coe, also was negligent and careless and acted negligently and wrongfully in so doing it with his said eye sight and vision being so defective and bad, and all of which facts were well known by all of said defendants at all of said times."

Defendants Borglum, Knudsen and Knudsen admitted they were partners operating and doing business as the Center Milk Products Company and that the company purchased milk from farmers at their Maryville plant. Said defendants however deny all other allegations in plaintiff's petition, and make specific denial that they were engaged in collecting or transporting milk or any product of merchandise by truck or otherwise and specifically deny that defendant, William Coe, was ever their employee for any such purpose. These defendants in effect allege defendant Coe to be an independent contractor over whose actions they had no control. In other words, that the relation of master and servant did not exist between them and Coe. Based upon such allegations, these defendants deny any liability for the injury, if any, suffered by plaintiff.

The defendant Coe answers by way of general denial and plea of contributory negligence.

It will be noted that the plaintiff, while basing his right to recovery on alleged negligent acts of defendant Coe, seeks recovery upon two theories. First, upon the doctrine of respondeat superior; Second, upon alleged negligence of the partnership in hiring an unfit person who could not and did not safely drive and operate his said truck.

The record shows that the evidence in the trial was voluminous and the whole field of the relationship between parties defendant was gone into and developed. At the close of all the evidence, the trial court held that the evidence failed to show relationship of master and servant between the partnership and the truck driver, Coe, and the doctrine of respondeat superior was eliminated.

The trial court permitted the case to go to the jury only on the issue as plead, supra, in regard to alleged employment of an unsafe driver to deliver milk to their plant. There was a jury verdict for plaintiff and against all defendants in the sum of $5000. Judgment was in accordance and separate appeals were allowed for members of the partnership and William Coe.

As the trial of the case was upon the theory that Coe was an independent contractor, then before a recovery is allowable against the partnership in using him to drive and operate his truck in delivering milk to said partners there must be facts and circumstances shown that bring the situation within an exception to the general rule that one is not liable for an injury resulting solely from the negligence of an independent contractor.

There is a doctrine, referred to as nondelegable duty, wherein the owners of premises that may be dangerous due to defective conditions that render them dangerous in work contracted for cannot escape liability unless the owner takes proper precautions to guard against same. Under such circumstances as the aforesaid, the owner cannot absolve himself from liability merely by hiring an independent contractor to do work on same unless he takes proper precaution to guard against such dangers.

There is no evidence in this case that brings the issues herein within the above exception to the general rule.

At the time that the alleged injury to plaintiff occurred, he was riding in a truck owned and being driven by L.B. Skinner. The collision involved occurred in Stanberry, Missouri, on September 10, 1938.

Both the plaintiff and Skinner were called and testified on behalf of plaintiff.

The testimony of the above witnesses is so interspersed by "indication" that it is almost impossible to determine from their testimony in the record as to how the collision occurred. An example of the questions and answers shown is as follows:

"Q. Take the ruler — this is north (indicating on plat) — this west (indicating) — and this is east (indicating). This is First Street and this is Willow Street (indicating). A. We got to coming out here (indicating on plat). Right here is the alley (indicating) and when we came up here — is this 169?"

One Roy Clemmons was an eye witness and testified on behalf of plaintiff and his testimony is the clearest touching the occurrence.

On direct examination of Clemmons, the following appears:

"Q. Were you where you could see both cars? A. Yes, sir.

"Q. I wish you would tell the court and jury how you saw the collision and what occurred there? A. I was standing talking to a fellow and seen a car coming from the east and seen this car going north and this truck came down there and seemed to be over half way across the street.

"Q. Which car? A. Skinner's.

"Q. Skinner's was half way across the intersection? A. Yes, half way or over.

"Q. What do you say about where was he with reference to the intersection — the Skinner car? A. Right south.

"Q. I don't know whether you understand me. When you first looked up where was Skinner's car? A. Going north.

"Q. Where was it with reference to the center of the intersection? A. A little over half across the street going north — no, going west.

"Q. Where was the Coe truck at that time? A. It was coming down the street, a little over half way from the oil station.

"Q. About half way down the block? A. Yes, sir.

"Q. How fast was the Coe truck going? A. I don't know exactly.

"Q. How fast would you say it was coming? A. I imagine about forty miles.

"Q. Did you hear any warning sounded from the Coe truck? A. No, sir.

"Q. Did you see Coe's truck collide with the Skinner truck? A. Yes.

"Q. Where did they collide with reference to the depression? A. Whereabouts?

"Q. Yes. A. It hit the Skinner car there before it got across the street.

"Q. Hit the back end of the Skinner car? A. Yes, sir." On cross-examination, the following appears:

"Q. You want to say the Coe car was going forty miles an hour, down hill, with a load of about four tons of milk on it, and hit this car and only knocked it over about ten feet? A. Seemed like he threw his brakes on it.

"Q. But it knocked it about eight or ten feet? A. Well that far, anyhow."

That the plaintiff received injury is not disputed.

The evidence discloses that defendant Coe, the milk truck driver, had very defective vision without eye glasses. However, he wore heavy lense glasses that evidence discloses gave good vision. The evidence further discloses that Coe had been in several previous automobile accidents.

From a study of all of the evidence we conclude that the evidence clearly makes an issue of fact on the question of negligence on part of defendant Coe.

The liability of the partners of the Center Milk Products Company is, of course, based upon different principles of law and must be substantiated by different facts than apply to defendant Coe.

Regardless of the rulings of the trial court, it becomes the duty upon review to study the evidence and determine therefrom as to whether or not the members of the partnership are liable to the plaintiff on any theory consistent with the pleadings.

It stands admitted that defendants Axel Borglum, John A. Knudsen and Edward Knudsen are partners operating the Milk Products Company of Maryville, Missouri. In the operation of the business it is shown that what are known as milk routes had been established in the surrounding territory and farmers selling milk to the company would deliver their milk along the highway over which a route operated, and same would be picked up by one operating on the route and deliver same to the plant in Maryville.

Under the practice established in the trade, the Milk Products Company furnished the milk cans to the farmers and it was the duty of the carrier on the route to pick up the full cans and take same to the plant and to return empty containers back to the farmers on the route.

Under the practice at the time of the occurrence herein in issue, the compensation to the carrier on the route was paid jointly by the company and the farmers selling milk.

It appears that one Lon Messner owned what was called a "milk route" over which he collected milk from the farmers or producers for the company. Defendant Coe had worked for Messner for a year and three months when Coe purchased a part of the milk route from Messner, together with certain trucks and equipment. Coe borrowed from the company $885 of the $1050 necessary to pay Messner. Coe made the purchase from Messner on August 3, 1938, and continued to collect milk from the customers of the company by the use of the trucks he had purchased from Messner. Coe had no written contract with the company, but the agreement was that he receive twenty-five cents per hundred pounds for collecting milk. This sum was made up of twenty-two cents per hundred pounds which the company retained from the customers' paychecks with which the milk was paid for and three cents per hundred pounds which it contributed. It appears at times that the company's portion of the recompense received by Coe was eight cents, making Coe's recompense a total of thirty cents per hundred pounds. Coe had no contract with the producers.

The company owned the milk cans in which the milk was brought to the creamery. It had a number for each customer, which number was placed upon the particular customer's milk cans. The company charged the customers a rental of twelve and one-half cents per month for each can. The recompense Coe received included the work of delivering cans back to the customers. The company deducted from the producer's check the amount charged for the cans, twenty-two cents hauling charges and the price of whatever of its products the customer had bought of the company during the period for which amount the check was given. Settlement was made bimonthly. Coe would deliver the checks.

Coe delivered large quantities of ice cream for the company for which he was paid by the company five cents per gallon, which included his services in returning the containers. He also delivered butter milk in quart bottles and in other containers and he was paid ten cents for the delivery of each box of six quarts of butter milk. Coe would also deliver to the company's customers other products it manufactured, for which he received payment from the company, but how much he received for these items, in whole or in part, is not shown by the testimony.

Aside from collecting milk and delivering milk products for the company, Coe hauled merchandise for various other customers of his, with which the company had no connection. Coe maintained his own trucks, bought the gasoline for them and paid his own helpers and operated his milk route. There was no sign of any kind on the truck and there is no evidence that the company ever attempted to direct him as to how he should drive them. The only evidence of any directions given him was that he must have the milk at the company's plant by noon in the summertime and by 1:30 in the winter unless he was delayed by the weather. One of the partners testified that "general demand" was made on Coe to this effect. In the course of the work customers would ask Coe to procure special tests of their milk, which were made by the company and the report thereof delivered back to the customers by Coe. In the envelopes containing the checks delivered by Coe there sometimes were inserted by the company circulars. Some of these circulars advertised strainers and strainer pads offered by the company for sale. Coe would also deliver the strainers and strainer pads to the customers which they had purchased from the company. At least on one occasion Coe bought butter and butter milk from the company and resold it to his own customer. The inference to be drawn from the testimony is that Coe would also take orders from the customers for products sold by the company as, at the time of the collision in question, he was on his way to one of the ice cream customers of the company in Stanberry to find out if it desired any ice cream. When the customer would order products from the company it would send a bill along with the goods which Coe delivered. Coe also delivered products of the company to persons who did not sell milk to it. The company's customers were secured by the customer calling its plant in Maryville and asking it to have the milk carrier in the particular customer's territory come and pick up his milk and the company would tell Coe about the milk in his territory and he would go and get it. People on milk route would send by Coe for needed merchandise and Coe would go to merchants dealing in product ordered and get and deliver same to the one employing him for such service.

At the time of the collision Coe had no permit of any kind from the State to operate his trucks. The license plates on the truck in question were the plates issued to Messner. None had been issued to Coe. After the collision the company wrote its customers stating: " In order to classify our Milk Haulers as Independent operators, hauling milk direct from the farm to market, we have been obliged to change our method of paying for the milk" (italics ours) and stating, in effect, the new method was that the customer would be charged the entire cost of collecting the milk, the company paying no part thereof.

In reference to Coe's incompetency the evidence shows that he had been operating motor vehicles for some years; that he had driven various trucks aggregating at least 300,000 miles prior to the time of the collision; that he had driven the particular truck involved in the collision some 100,000 miles; that the company knew of him through his driving for Messner and thought he was a "good boy" when he purchased the milk route, but made no special investigation of his qualifications for driving a truck.

The evidence shows that after the collision in question another automobile ran into Coe's truck in Spencer, Iowa, when Coe's truck was "torn up pretty bad;" that he had been sued in Iowa on account of this collision; that prior to the collision in question (the time not being shown) Frank Lykins' daughter ran her car into his truck, "she didn't stop for a sign;" that he had another collision with Oliver Jennings' car (the time not being shown) in which his truck and the Jennings car "ran together;" that at another time he was driving his truck with a guest seated therein. The guest testified that they were crossing a bridge which had no "bannisters" and that Coe drove near to the edge of the bridge instead of in the middle.

Coe testified that he did not see the truck in which plaintiff was riding until he was within twenty-five feet thereof, but that his view was obstructed by trees. It is admitted that there is sufficient evidence in the record tending to show that Coe was negligent in connection with the collision in which plaintiff was injured.

At the time of the trial, which occurred on March 20, 1940, Coe was thirty-four years of age. He had worn glasses since he was eight years of age. At the time of the collision he was wearing glasses with thick lenses which had been fitted about six years before. His right eye had been injured when he was a year and a half old through a fall. He had an astigmatism in his eyes that caused his eyeballs to be unround. One of his eyes was so crossed that he looked out of its corner. His eyes were tested about three months before the trial, or about a year and a half after the collision in question. The doctor who tested them advised him to have his glasses changed "before long." He said the "lens is scratched on my glasses" and "I really should have my eyes rechecked." There was other testimony that his glasses had been scratched prior to the collision in question and that while he did not need the lenses changed, they needed re-grinding.

On cross-examination counsel for plaintiff conducted a test of the ability of Coe to see without his glasses. The test showed that while he could read and see letters at a close distance he was unable to distinguish letters a few feet away and could not read without making some mistakes. However, with his glasses he was able to read normally. There was medical testimony to the effect that by reason of the injury Coe had suffered in childhood to his eye, his right eye was what is called "walleyed;" that without glasses Coe's eyes were four-fifths normal but that with his glasses he had normal eyesight; that astigmatism is a common condition, not a disease; that it is present in many people's eyes and that many people who have astigmatism drive cars without being incapacitated from doing so.

As this case was submitted only upon the allegations of negligent hiring of an independent contractor and as defendants assign as error the refusal of the court to give directed verdict in their behalf, we now proceed to review as to such assignment.

We have above referred to the rule that one who owns property that may under circumstances become dangerous cannot escape liability incident to property by employing an independent contractor. In other words, one cannot delegate a duty and escape liability for injury incident to his proprietorship. However, if injury occurs by sole negligence of the independent contractor and is not due to or connected in any way with the premises, the contractee is not as a rule liable for negligence of the independent contractor.

As to the employment of a servant, the great weight of authority is to the effect that duty to inquire into competency and fitness exists.

In 39 Corpus Juris, under heading of Master and Servant, section 1950, page 139, the following text appears:

"While there is some authority to the contrary, according to the weight of authority the duty rests on the employer to select a skilled and competent contractor, and the employer is in general liable to third persons for the negligent or wrongful acts of an independent contractor employed by him where he knew his character for negligence, recklessness, or incompetency at the time he employed him."

The plaintiff herein in one paragraph has plead the relation of master and servant and in another paragraph set forth above had directly plead negligence in employing Coe, an alleged unfit person, in general terms.

If the relation of master and servant exists the fact that the allegation of negligence in hiring appears in another paragraph does not preclude consideration from the standpoint of master and servant. However, if the doctrine of respondeat superior be eliminated, quite a different question arises.

The text above, although appearing under Master and Servant, is very broad and as to whether or not it applies to the facts of the case at bar, regardless of whether master and servant or independent contractor be involved calls for consideration.

There are many cases in Missouri wherein the nondelegable duty has been declared concerning work done by an independent contractor on one's premises (discussed by us, supra). However, there are only two Missouri cases cited in Corpus Juris under the text, supra. One case cited is Mullich v. Brocker, 119 Mo. App. 332; the other Missouri case cited is Bannock v. Elmore, 114 Mo. 55, which clearly comes under the rule as to owner of premises.

Upon an examination of the Mullich v. Brocker case, we find that the issue was determined under the doctrine of respondeat superior. However, in the course of the opinion there appears the statement of doctrine similar to that found in Corpus Juris, supra.

The facts of the Mullich case are that Brocker hired a sixteen-year-old boy to break a colt and the colt ran into a team of horses and caused injury. The opinion holds that the relation of master and servant existed and liability was placed upon that ground.

In the course of the opinion, the court discourses as follows:

"But a proprietor will not be exonerated from liability for negligence in the doing of work which he lets out to an independent contractor unless he used care to select a competent person as contractor — one who not only had an occupation, but reasonable skill in performing the tasks pertaining to it. If a person entrusts the performance of work, of a kind likely to result in harm to third persons unless cautiously and skillfully done, to a manifestly unfit person, as an independent contractor, the employer will be responsible for the consequences of such contractor's incompetency. Breaking horses to harness is not necessarily dangerous to others, if properly done; and in selecting a contractor to do work of that character, a proprietor need only use ordinary care to choose a competent person. But if he is careless in selecting, he remains liable. [Dillion v. Hunt, 82 Mo. 150, 155; Brannock v. Elmore, 114 Mo. 55, 62, 21 S.W. 451; Burns v. McDonald, 57 Mo. App. 599]."

As in the above case, plaintiff based his cause of action in two paragraphs; one on the issue of master and servant, and one on allegation on negligence in employing an incompetent person to break the colt.

It must be noted that as under our law negligence in the employment of a servant imposes liability upon the master and therefore all that is said in the above opinion, in the light of the fact that the court held that the boy was not an independent contractor, may well be considered as applying to relation of master and servant.

The use of the word "proprietor" (the owner of the horse) in the above quotation is significant and the further fact that citations inserted are all cases coming within the rule of nondelegable duty as first discussed by us, supra, is indicative of the conclusion that the court placed liability on two grounds. First, on respondeat superior; and second, on the principle first discussed by us to proprietor or owners of premises.

The case herein under consideration has distinguishing features from the Mullich v. Broker case, in that defendants Borglum, Knudsen and Knudsen, were neither the proprietors or owners of the milk route or the transporting trucks used.

No case is cited and we find no case wherein one who hires an independent contractor, engaged in hauling and delivery of goods for hire, is held liable for damages done to others by such independent contractor.

We have taken occasion to run down the citations in the footnotes to the text of Corpus Juris, set forth above, and find that in every instance the liability of the contractee is based upon the proprietorship or ownership of the instrumentality that caused the injury or liable under rule as to master and servant.

After a somewhat exhaustive research, we conclude that the facts of the case at bar do not bring it within the "weight of authority" rule as expressed in the text of 39 Corpus Juris, supra.

To hold that one who engages an independent contractor who follows the business of hauling goods and merchandise for hire is under the duty to inquire and ascertain the qualifications of such a person or else be liable for damages for injury inflicted by the negligence alone of such person, would inflict unwarranted burdens on innocent people. If such were the rule, any citizen who telephoned to such a person to haul his trunk to the depot would subject himself to the possibility of answering an action and must defend on the ground that he had made diligent research as to the capability and qualifications of the person before calling him to perform the transportation.

In reaching the above conclusion, it must be understood as applying to an independent contractor and not to master and servant. Further, in reaching the above conclusion, we have had in mind the rule that a contractee who interferes with the work being done by an independent contractor, and thereby injury is occasioned the contractee is liable. The evidence in this case shows no such interference as contributed to the collision and injury.

If the trial court was right in eliminating the issue of respondeat superior, it follows that as to defendant Borglum, Knudsen and Knudsen, a demurrer should have been sustained as to them on grounds stated above. However, there is another ground upon which the above conclusion can be based. In the text, 39 Corpus Juris, supra, the following rule is laid down:

"The fact that a contractor is negligent in respects to the work in question raises no presumption that the employer was guilty of negligence in employing him."

Even if it be concluded that the exception to the general rule, supra, has application to the facts of this case, we conclude that there is no evidence in the case tending to show that the company failed to exercise reasonable care in Coe's selection or, in fact, that Coe was incompetent to drive the truck in question. As to the collisions he had suffered with other vehicles, at least one of them occurred after the collision in question. The time and circumstances of the others are not shown and, of course, there is no showing that Coe was negligent in any respect in connection with any of them. [Dysart v. Railroad Co., 145 Mo. 83; Burns v. McDonald Mfg. Co., 213 Mo. 640.] Of course, there was nothing to show that the members of the partnership knew anything about the other collisions when they secured his services on his milk route or prior to the collision in question. There is no evidence that Coe, by the aid of his glasses, was incompetent from the standpoint of vision, to drive the truck in question.

Under our conclusions stated above, a reversal must be had as to defendants Borglum, Knudsen and Knudsen. However, if as to these defendants there is any ground stated in plaintiff's petition that entitled plaintiff to recover from these defendants, then the question of remanding for another trial must be considered. In other words, if we should conclude from a study of the evidence that plaintiff is entitled to go to the jury on the issue of master and servant, this cause should be remanded.

We have set forth above a synopsis of the evidence that we conclude states the facts as to the contractual and working relationship between the Milk Products Company and defendant Coe, as same existed at the time of the occurrence herein complained of. Basing our conclusion from a study of the record, we conclude that the plaintiff failed to make a submissible case under the doctrine of respondeat superior. However, in fairness to the plaintiff, one further fact in evidence, what we referred to above, should be noted and considered.

It appears that after the happening of the collision herein involved, the Milk Products Company sent out to its customers a letter as follows:

"Customer:

"In order to classify our Milk Haulers as Independent Operators, hauling milk direct from the farm to market, we have been obliged to change our method of paying for milk.

"By this new method we are increasing the regular market price of milk two cents per pound butter fat and deducting the full amount of the hauling charge from the patron.

"It does not change the rate that the Haulers have been getting or it will not increase the rate they will get under the new method. Up to this time the Company itself has been paying part of the hauling charge, to the extent of two cents per pound butterfat, thus paying a lower price for milk.

"So, with reference to this last period we paid thirty-three cents per pound butterfat in place of thirty-one cents as it would have been under the old method according to the market.

"In the future we will continue to operate under this plan.

"CENTER MILK PRODUCTS COMPANY."

The question arises as to whether or not there appears in the above letter such admissions as when considered with all other evidence in the case would make a submissible issue as to existence of relation of master and servant. We conclude not, and for the following reasons: The letter is but an exemplification of confusion that would be occasioned in the business world if there be declared a duty imposing liability based upon negligence in failure to ascertain as to skill and suitable qualification of an independent truck or dray driver before one entrusted them with an article to be transported to or from their home or place of business.

Evidently the partners involved came to the erroneous conclusion of law that the Milk Products Company by paying part of the hire for defendant Coe's services in hauling the producers product to the plant imposed greater liability upon the partnership for the acts of Coe than would be imposed if such practice was not followed. Such erroneous conclusion of law does not impose any greater liability than existed before the letter was written.

Based upon the above and other stated conclusions herein, it follows that there should be an outright reversal of the judgment as to defendants Axel Borglum, John A. Knudsen and Edward Knudsen.

Defendant William Coe filed separate affidavit for appeal and has filed separate brief. We have above stated our conclusion to the effect that the evidence makes a submissible case as to Coe.

It is insisted that the court erred in giving plaintiff's Instruction No. II, which authorized the jury to allow plaintiff damages for the loss of past and future earnings. The evidence in this connection shows that plaintiff suffered from a bad heart and dropsy prior to the collision and that he used a "little stick" to walk around with; that his heart was in such condition that the slightest exertion troubled him. His physician testified that plaintiff might have been able to do some light work but he advised him "against it." Plaintiff testified that prior to the collision he did "any work that came up;" that he shucked and cut corn, tended a large garden, worked in a blue grass patch, painted a seven-room house, a big tool shed and a barn.

There is no question but that, as a result of the collision in question whatever earning capacity, if any, plaintiff had was diminished, but there is no evidence what he was able to earn either before or after the collision. The instruction was clearly erroneous. [Chilcutt v. LeClair, 119 S.W.2d 1; Davidson v. Transit Co., 211 Mo. 320, 344, 345, 346.]

The defendant Coe also makes the point that the measure of damages instruction was erroneous as to him. This contention must be sustained and the cause reversed and remanded as to Coe.

Judgment reversed as to defendants Axel Borglum, John A. Knudsen and Edward Knudsen and, for reasons stated, judgment as to William Coe is reversed and cause as to him remanded.

Bland, J., concurs; Cave, J., in result.


Summaries of

Galentine v. Borglum

Kansas City Court of Appeals
Apr 7, 1941
235 Mo. App. 1141 (Mo. Ct. App. 1941)
Case details for

Galentine v. Borglum

Case Details

Full title:LOVEY GALENTINE, RESPONDENT, v. AXEL BORGLUM ET AL., APPELLANTS

Court:Kansas City Court of Appeals

Date published: Apr 7, 1941

Citations

235 Mo. App. 1141 (Mo. Ct. App. 1941)
150 S.W.2d 1088

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