text:
    Frank P. JOHNSON, Plaintiff-Appellant, v. SIMPSON OIL COMPANY, Inc., and Travelers Insurance Company, a corporation, Defendants-Respondents.
    No. 8402.
    Springfield Court of Appeals. Missouri.
    Aug. 4, 1965.

      Dempster & Edwards, Sikeston, for plaintiff-appellant.
    Evans & Dixon, Edward W. Warner, St. Louis, for defendants-respondents.
   STONE, Judge.

In this proceeding under the Missouri Workmen’s Compensation Law, Frank P. Johnson, the claimant, seeks benefits on account of personal injuries sustained by him on April 5, 1961, in an accidental fall at a service station in Dexter, Missouri (hereinafter referred to as the station). Claimant’s theory has been and is that he was a statutory employee of Simpson Oil Company, Inc. [Section 287.040], whose liability under the Compensation Law was insured by Travelers Insurance Company. The referee found for claimant, but on review the Industrial Commission, with one member dissenting, found for the alleged employer (hereinafter referred to as Simpson) and its insurer and denied compensation. The final award of the Commission having been affirmed by the circuit court, claimant again appeals.

We emphasize at the outset that, although on judicial review the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the entire record, the Industrial Commission reasonably could have made the findings and award under consideration, this does not mean that either court should substitute its own judgment on the evidence for that of the Commission; but that a reviewing court may set aside the findings and award of the Commission only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award. Cotton v. Voss Truck Lines, Inc., Mo.App., 392 S.W.2d 428; Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 83(5-7); Garrison v. Campbell “66” Express, Mo.App., 297 S.W.2d 22, 30(8), and cases collected in footnote 11. Our statement of facts accords appropriate and required recognition to that guiding principle. Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306, 307; Davis v. McKinney, Mo.App., 303 S.W.2d 189, 190.

At a time not fixed in the record, Simpson, a wholesale distributor of gasoline, motor oils and greases, leased the station, including “the grease rack and other heavy equipment,” from one Paul McConnell, the owner thereof. Subsequently, to wit, “about 1955,” Simpson acting by and through J. R. Stanley, its sales representative in charge of the “territory” in which Dexter was situate, entered into an oral agreement with claimant, under which claimant took possession of the station and operated it. About two years later, claimant formed a partnership with his son-in-law, Louis McConnell, who was a brother of Paul McConnell, owner of the station, and thereafter the partnership operated the station under the same agreement.

Both claimant and Stanley stated that there had been an oral agreement; but, as is so frequently true with respect to matters not reduced to writing, the testimony concerning that agreement was unsatisfactory in that it did not establish all of the details with certainty and clarity. However, at the hearing the parties were in substantial accord as to the material terms of the oral agreement. Claimant was required to purchase from Simpson all products handled by it which claimant might sell or use at the station, principally gasoline, motor oils and greases; but claimant was to have the right, without limitation or restriction, to purchase from other suppliers such additional products as he might choose to sell or use. Simpson was to repair and maintain the grease rack and heavy equipment at the station. Other equipment, fixtures and small tools were to be supplied, maintained and replaced by claimant. For occupancy and use of the station, claimant was to pay Simpson, in addition to the wholesale price of gasoline and the transportation charge from Simpson’s terminal to the station, an additional one cent per gallon as “gallonage rental.” Claimant was (as he stated it) “guaranteed a margin of three cents a gallon” on gasoline, meaning that, during periods to which motorists fondly refer as “price wars,” Simpson was to reduce its wholesale price of gasoline to provide a margin of three cents per gallon between that price and the posted price at the station pumps. The term of claimant’s occupancy and use of the station was not fixed in the oral agreement; and, insofar as the record discloses, there was no discussion of the method by which, or the notice upon which, such occupancy and use might be terminated.

Claimant, first as sole proprietor and later in partnership with his son-in-law, operated the station under this oral agreement for some six years prior to the accident of April 5, 1961. During that period, the parties appear to have followed, without significant deviation, the above-outlined provisions of the oral agreement. Claimant and his partner handled at the station not only gasoline, oils and greases purchased from Simpson but also a motley mixture of other items obtained from various suppliers, including new and used tires, batteries, automobile accessories, motorcycles, candy, cigarettes and cigars. For a time, claimant’s partner ran a repair shop on the same premises. All monies derived from operation of the station were deposited in the bank account of the “Dexter Service Station,” the trade name under which claimant and his partner did business, and no reports concerning sales or profits were required to be made, or were made, to Simpson.

Claimant and his partner set their own working hours and received no salaries or wages from Simpson. From time to time, the partnership (neither consulting with, nor reporting to, Simpson) hired and discharged employees at the station, paid their salaries, and as their employer withheld income and social security taxes from employees’ wages, reported and remitted such taxes to the United States Government, and made such additional tax payments as were required of the employer. One of those employees, after termination of his employment, occupied the second-floor living quarters of the station building at a rental of $20 per month which was paid to and retained by the partnership. The merchant’s license required by the City of Dexter was procured by the partnership in its trade name, and payment therefor was made from partnership funds. All utility and heating bills likewise were paid by the partnership. The partnership acquired for use at the station, and in the partnership income tax returns took credit for depreciation on, numerous items ranging in value from $295 to $20, including a safe, adding machine, file cabinet, show case, cigarette vending machine, tire rack, tire changer, battery charger, sparkplug cleaner, grease gun, grease dispenser, electric drill, sander, metal tool cabinets and tools.

Stanley, Simpson’s sales representative, called at the station once or twice each month. When asked as to “the purpose” of those visits, he replied, “making a routine call, checking over the property, seeing if he [claimant] needed merchandise.” In an effort to show that Simpson might have exercised some measure of control over operation of the station, claimant’s counsel interrogated both their client and Stanley concerning the suggestions which he (Stanley) might have made in the course of those station visits. Stanley readily agreed that he had inspected the rest rooms and that, if he had found them dirty, he might have suggested that they should be cleaned, and that, if business hours at the station had not been maintained “in line with competition,” he might have made some suggestion concerning that. However, Stanley did not recollect having given any direction to claimant or his partner with respect to rest rooms, business hours, or any other matter.

Claimant himself testified that Stanley “would look the station over and he would go in the rest rooms but he had no occasion to say anything to me about it because I kept my station up in order.” In response to the inquiry “did you ever have any discussion with Mr. Stanley about the [business] hours,” claimant’s unqualified reply was “no, sir.” And at another point in claimant’s direct examination we find this question and answer: “Q. When Mr. Stanley would call on you would he give any directions as to what to do or not to do? A. No, not in particular because he had no occasion to.”

Although claimant averred that the station had been operated by the partnership composed of himself and his son-in-law, the partnership income tax returns listed as a partner one O. C. Johnson, identified by claimant as his wife; and, for four years prior to the date of accident, the tax returns had showed the net income of the partnership as divided between claimant’s wife and son-in-law. Claimant’s glib explanation, tendered as sufficient and acceptable under the easy morality of the day, was that, although his wife admittedly had no money invested in the station and had done no work there, he had “put it [his share of the net income] in my wife’s name to bring her social security up,” because “I figure I [already] had my social security built up * * * and [I would] build up her social security and she could start drawing hers at 62.” Actually, claimant (so he said) had drawn himself, but in his wife’s name, $25 per week and an additional lump sum at the end of the year.

The Industrial Commission found, inter alia, that the partners were independent contractors; that the station was under the control of the partnership and not that of Simpson; that the business conducted at the station was that of the partnership and not that of Simpson; that “the partners did have an estate in the station premises (probably a tenancy at will)” by reason of the landlord-tenant (or lessor-lessee) relationship between Simpson and the partnership; that such relationship “was not created for the fraudulent purpose of avoiding compensation liability”; and that claimant was neither an actual nor a statutory employee of Simpson.

Claimant here concedes that he was an independent contractor and not an actual employee of Simpson, but he insists that he was a statutory employee. Section 287.040. The essential elements of statutory employment, as stated in subsection 1 of Section 287.040, are (a) “work done under contract,” (b) “on or about the premises of the employer,” and (c) in an operation of the employer’s usual business there conducted. Grauf v. City of Salem, Mo.App., 283 S.W.2d 14, 17(2); Snethen v. American Compressed Steel, Mo.App., 272 S.W.2d 850, 854. See Shafer v. Southwestern Bell Tel. Co., Mo., 295 S.W.2d 109, 115. “Premises,” as used in the cited statute, “contemplates any place, under the exclusive control of the employer, where the employer’s usual business is being carried on or conducted * * Sargent v. Clements, 337 Mo. 1127, 1134, 88 S.W.2d 174, 178(5); State ex rel. Potashnick v. Fulbright, 350 Mo. 858, 862, 169 S.W.2d 59, 61(2); Baker v. Iowa-Missouri Walnut Log Co., Mo.App., 270 S.W.2d 73, 76(4). This definition of “premises” is compatible with subsection 2 of Section 287.040 which states that “[t]he provisions of this section shall apply to the relationship of landlord and tenant, and lessor or lessee, when created for the fraudulent purpose of avoiding liability, but not otherwise.” (Emphasis ours.) There being no suggestion of fraudulent purpose in the instant case, the meritorious and determinative inquiry is, as claimant’s counsel frankly stated upon submission, whether or not the relationship between Simpson and claimant, in respect to the station, was that of landlord and tenant.

The relationship of landlord and tenant is defined in general terms as that which arises from a contract, express or implied, by which one person occupies the real property of another with his permission and in subordination to his rights, the occupant being known as the “tenant” and the person in subordination to whom he occupies as the “landlord.” Marden v. Radford, 229 Mo.App. 789, 799, 84 S.W.2d 947, 954(5); Williams v. Treece, 184 Mo.App. 135, 140, 168 S.W. 209, 211(4); 51 C.J.S., Landlord and Tenant, § 1, p. 509. The essentials of that relationship are said to be (1) a reversion in the landlord, (2) the creation of an estate in the tenant, either at will or for a term less than that for which the landlord holds, (3) the transfer of exclusive possession and control of the premises to the tenant, and (4) a contract, either express or implied, between the parties. Marden v. Radford, supra, 229 Mo.App. at 799, 84 S.W.2d at 954(6); 51 C.J.S., Landlord and Tenant, § 2 a, p. 510.

The gist of instant claimant’s position is that the evidence in the case at bar did not permit a finding of the third essential, i. e., that exclusive possession and control of the station had been transferred to him, because (so claimant says) his relationship with Simpson was “subject to termination in 24 hours” and Simpson, not claimant, “had the responsibility for the care and conditions (sic) of the premises.” As supporting the first predicate, i. e., that his relationship with Simpson was “subject to termination in 24 hours,” claimant points to the following evidentiary fragments at widely-separated pages of the transcript. In claimant’s direct examination, the inquiry (without reference to the length of notice) whether “if Mr. Stanley (Simpson’s sales representative) advised you that you were to leave the station and surrender it to Simpson Oil Company would you or would you not do so” elicited the meaningless, self-serving reply, “yes, sir.” In the course of examination of witness Stanley by claimant’s counsel, the question (again without reference to the length of notice) “if he [claimant] was not operating it [the station] to your satisfaction and the company’s satisfaction you would move the man out” drew the response “yes, sir.” Neither of these testimonial bits is inconsistent with, or militates against, the finding on the entire record that claimant was a tenant at will whose tenancy properly could have been terminated by Simpson only “by giving one month’s notice, in writing, * * * requiring him to remove” from the station. Section 441.060(1).

Cláimant’s counsel álso emphasize the testimony developed in their examination of witness Stanley to the effect that Simpson’s oral agreement with claimant was “similar” to, or “the same sort of deal” as, Simpson had made with'the operators of a service station at Bloomfield, Missouri, who had moved the next day after Simpson had asked them to vacate. But claimant’s counsel conveniently overlook, as we are not at liberty to do in reviewing the evidence in the light most favorable to the findings and award of the Commission, witness Stanley’s explanation that the Bloomfield operators “didn’t ask for legal notice or thirty-day notice” but “voluntarily agreed to move” the following day — “it was their own mutual agreement.” Nor may we disregard Stanley’s positive statement at the hearing that, to terminate the oral agreement, “we [Simpson] would have to give him [claimant] a legal notice.” An answer in his prehearing deposition susceptible of a contrary interpretation did no more than to present a variance bearing upon the weight and credibility to be accorded to his testimony, which were matters for consideration and determination by the Industrial Commission as trier of the facts. Cf. Steele v. Kansas City Southern Ry. Co., 302 Mo. 207, 257 S.W. 756, 759(4); Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, 31(4); Leek v. Dillard, Mo.App., 304 S.W.2d 60, 63(2); Cable v. Metropolitan Life Ins. Co., 233 Mo.App. 1093, 128 S.W.2d 1123, 1125(3).

Passing to the second predicate of claimant’s position, i. e., that Simpson “had the responsibility for the care and conditions (sic) of the premises,” we need not repeat the hereinbefore-digested evidence bearing upon this subject. Suffice it to say at this point that the record neither compels nor supports the quoted conclusion and that such interest as Simpson understandably had and manifested with respect to the condition of the station certainly was not sufficient to preclude the finding that the relationship between Simpson and claimant was that of landlord and tenant.

That he, who asserts the applicability of the Compensation Law, has the burden of so proving, is a trite principle which has been recognized in numerous cases and with respect to various contested issues [Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 499(15), and cases collected in notes 13 and 14]; and, to carry that burden of proof, it was incumbent on instant claimant to establish every element of statutory employment required by Section 287.040(1). Grauf v. City of Salem, supra, 283 S.W.2d at 18(8). Cf. Wright v. Pierson, 238 Mo.App. 1157, 195 S.W.2d 519, 523(5). Furthermore, as our courts frequently have had occasion to point out, the inquiry on judicial review is whether, upon the entire record, the Industrial Commission reasonably could have made the findings and award under consideration, not whether a contrary conclusion might have been permissible. Karch v. Empire Dist. Elec. Co., 358 Mo. 1062, 1070, 218 S.W.2d 765, 770; Francis v. Sam Miller Motors, Inc., Mo., 282 S.W.2d 5, 13; Vandaveer v. Reinhart & Donovan Const. Co., Mo.App., 370 S.W.2d 156, 163; Barton v. Western Fireproofing Co., Mo.App., 326 S.W.2d 344, 349(5).

With these principles in mind, we have no doubt but that the Industrial Commission reasonably could have found (as it did) that the station was not under the exclusive control of Simpson, that claimant and his partner “did have an estate in the station premises (probably a tenancy at will),” and that the relationship between Simpson and claimant was that of landlord and tenant, from all of which it necessarily followed (as the Commission concluded) that claimant was not a statutory employee of Simpson. Section 287.040.

The statutory injunction that the Compensation Law “shall be liberally construed with a view to the public welfare” [Section 287.800], upon which claimant’s counsel lean heavily, neither impinges upon the function and right of the Industrial Commission, as trier of the facts, to draw from the evidence such inferences as may be fairly and reasonably permissible [Barton v. Western Fireproofing Co., supra, 326 S.W.2d at 349(6); Staten v. Long-Turner Const. Co., Mo.App., 185 S.W.2d 375, 381 (13)] nor authorizes allowance of a claim lacking an essential element required by law. Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 747-748(6); Hogue v. Wurdack, supra, 298 S.W.2d at 500(20).

The judgment of the circuit court affirming the final award of the Industrial Commission is affirmed.

RUARK, P. J., and HOGAN, J., concur.

      . All statutory references are to RSMo 1959, V.A.M.S. That portion of Section 287.040, pertinent to determination of the instant case, reads as follows: “1. Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor * * * when injured or killed on or about the premises of the employer while doing work which is in the usual course of,his business. 2. The provisions of this section shall apply to the relationship of landlord and tenant, and lessor and lessee, when created for the fraudulent purpose of avoiding liability, but not otherwise * *

      . A tenant at will is one who holds possession of premises by permission of the owner or landlord, but without fixed term. Amick v. Brubaker, 101 Mo. 473, 14 S.W. 627, 628; Black’s Law Dictionary (4th Ed.), p. 1635; 41 Words and Phrases (Perm.Ed.), pp. 494-496. Such tenant has an estate in land [Restatement, Property, § 21, p. 51; 51 C.J.S., Landlord and Tenant, § 156, p. 762; Tiffany, Landlord and Tenant, § 2,1. c. 5; In re Widening of Gratiot Ave., City of Detroit, 294 Mich. 569, 293 N.W. 755, 757], thus satisfying the requirement, as one of the essentials of the landlord-tenant relationship, for “the creation of an estate in the tenant, at will or for a term less than that for which the landlord holds the same.” Marden v. Radford, 229 Mo.App. 789, 799, 84 S.W.2d 947, 954.

      . Compare Ramsey v. Gross & Janes Co., Mo.App., 241 S.W.2d 777, denying benefits under the Compensation Law, where the relationship between Gross & Janes, the alleged employer (owner of a sawmill), and claimant Ramsey (the operator thereof) was that of lessor and lessee [241 S.W.2d at 7801 although it was stipulated that the owner “was to maintain and keep up the mill, except that Ramsey was to furnish sawteeth, and * * * gas and oil” and “[a] 11 railroad ties cut with this mill were required to go to Gross & Janes” [241 S.W.2d at 7781, who also had a substantial measure of control as to results as well as the reserved authority to veto Ramsey’s purchase of timber and “to terminate the arrangement when in [the owner’s] judgment Ramsey failed to produce sufficient cross-ties to make Ramsey’s operation of the mill profitable for [the owner]” [241 S.W.2d at 780-781]; and Langley v. Imperial Coal Co., 234 Mo.App. 1087, 138 S.W.2d 696, denying benefits un-der the Compensation Law, where the relationship between Imperial, the alleged employer (owner of a coal mine), and a group of former employees, including claimant’s deceased husband (who had operated the mine under the name of Domestic Coal Company), was that of lessor and lessee, although the employer’s manager had “advanced the purchase price of mine equipment thus enabling the Domestic to comply with the provisions of the lease” [234 Mo.App. at 1092, 138 S.W.2d at 698]; and State ex rel. Shell Petroleum Corp. v. Hostetter, 348 Mo. 841, 156 S.W.2d 673, where “[t]he relation between relator [Shell] and its eodefendant O’Reilly was that of lessor and lessee” [348 Mo. at 849, 156 S.W.2d at 676] although lessor Shell “did most of the repairing and maintenance of the place” and “[t]heir truck called three times a week for that purpose ” 348 Mo. at 846, 156 S.W.2d at 674.

      . In our opinion, “probably” well might have been omitted — claimant and his partner were tenants at will.


source: Caselaw Access Project

author: RUARK, Presiding Judge.

license: Public Domain

text:
    Arthur MISCH et al., Plaintiff-Respondent, v. C. B. CONTRACTING COMPANY, a corporation, Defendant-Appellant.
    No. 8385.
    Springfield Court of Appeals. Missouri.
    July 28, 1965.
    Rehearing Denied Aug. 18, 1965.

      Donnelly & Donnelly, Lebanon, Kay & Quigley, Eldon, for defendant-appellant.
    J. W. Grossenheider, Lebanon, for plaintiff-respondent.
   RUARK, Presiding Judge.

This is a suit for damages to plaintiff’s property due to use of explosives in laying a city sewer line. The jury blasted defendant with a five-thousand-dollar verdict. It appeals.

According to plaintiff’s version of the facts (which we must accept in the most favorable light), the blasting commenced on August 14, 1962, and continued into the fall, at least through September. Since the frequency and intensity of the explosions, and the distance from the premises, is not involved on this appeal, we will not go into it. However, a brief description of the property is necessary to an understanding of the first issue. It consisted of a home, six “tourist cabins,” concrete walks and patios, driveways, and a filling station of concrete block construction. The home and cabins were of sandstone veneer. Foundations were concrete, twelve inches thick, set three to four feet deep, reaching to “solid clay.” Frames were cured pine. On the outside of the frame were driven many roofing nails; wire was attached, sandstone was set on the outside, and mortar was poured in the space between. “It sticks to the rock,” Plaintiff’s evidence was that the whole of the property was in good condition prior to the blasting, but that due to such blasting windows, foundations, concrete blocks (in the filling station), and many of the sandstones, were cracked, that the mortar at the seams was caused to “turn around and fall out,” and that many of the sandstones were loosened and would, in time, fall out.

Appellant’s first contention is that it should have been granted a new trial because there was no substantial evidence to support the verdict, in that the amount of damage was not proved.

At the outset we are confronted with respondent’s suggestion that the point should not be considered because the question was not presented to the trial court. The defendant did not present, either orally or in writing, any motion for directed verdict or for judgment. The suggestion first appears in the motion for new trial in the general words, “[Tjhere was no substantial evidence to support the verdict.” Ordinarily we do not consider allegations of error not presented to the trial court. Georg v. Koenig, Mo., 370 S.W.2d 356(3); West’s Missouri Digest, Appeal and Error, 169; V.A.M.R. Civil Rules 83.13(a), 79.03. The proper way to preserve the question of sub-missibility is to file a motion for directed verdict at the close of the evidence and again direct the court’s attention to the question by proper after-trial motion. Millar v. Berg, Mo., 316 S.W.2d 499, 502; Sides v. Mannino, Mo.App., 347 S.W.2d 391, 394; Duffendack v. St. Louis Public Service Co., Mo.App., 365 S.W.2d 52, 54. The question was not properly raised; but under Supreme Court Rule 79.04 we will, at appellant’s urging, examine it in order to see whether it should be considered as plain error affecting substantial rights resulting in manifest injustice.

The damage occurred in the late summer and fall of 1962. The case was tried in May of 1964, approximately twenty months after-wards. Plaintiff testified that the reasonable market value of the property before the blasting was $37,500. “Q. Now after the blasting occurred and after the blasting finally stopped, considering your property as it was after, what was the fair market value of your property immediately after the blasting? A. I have got it up for sale now $30,000.” The objection “as not responsive” was sustained. Then, upon defendant’s request, the jury was instructed to disregard. When the witness then attempted to volunteer, objection again was made and sustained and the jury was instructed to disregard. Counsel finally returned to his question. “Q. Without telling the jury now what you are trying to sell it for or anything, can you tell the jury just what the fair market value of it is now in the condition it is in? A. Well, I would say $30,000.” Note that in the original question counsel used the words “immediately after”; but in the second, and no doubt with some exasperation because of his loquacious witness, he used the word “now.” It is this “now” instead of “immediately after” which is the foundation of the contention that there was no substantial evidence of damage.

We agree with counsel that, generally, the measure of damages for injuries to real property is the difference in value immediately before and immediately after the injury, and there must be evidence of such. But let us consider the whole evidence : Plaintiff’s witness Libby was a contractor and carpenter, and he had had two years’ experience with explosives in the army. He was familiar with the buildings since the time they were built and before the blasting in the summer and fall of 1962. He had been on the premises a number of times and had inspected the buildings. He made the inspection because he wanted to know how the rock was laid, for he thought that it was something he “might want to do.” After the blasting he inspected the damage and made an estimate of the cost of removing and replacing damaged rock and mortar with a view to restoration, and his estimate of cost “by the yardage” was seventy-five hundred dollars. He was rather indefinite as to the times he was there to inspect. He said it was “after the blasts they are talking about in 1962.” “Different times.” He was certain that he was there “last year, 1963.” The last time was “day before yesterday.” He described the condition as to “rocks busted,” “slabs busted,” and “leaks in the house.” His estimate of cost of restoration was based on the condition of the property as it was “right now.”

Another factor enters into the time of determination of the damages. Plaintiff testified that the effects of the blasting continued to appear after the blasting had occurred. “After they got through blasting and they are settled, the foundation and stuff is settling down and it has thrown my building off from the concrete and the concrete sidewalk in the front, that is all cracked, it was opening up, now it is starting to settle and it is closing the cracks, after the rain comes and softens it up it is starting to settle, I could put my thumb in underneath of the porch, now it starting to settle, I can put my little finger in it at some places, it is closing it up; they ain’t blasting no more.” This condition of settling had not occurred before the blasting. “Well, they ain’t quite closed yet, but they are settling and my floor in the house is raising, waving like (indicating).”

The evidence justifies the conclusion that actual results of the explosives were not completely ascertainable immediately after they had occurred and that the injuries suffered were not susceptible of an immediate, on-the-exact-day determination but became greater as time elapsed.

The cost of repairs or restoration (by witness Libby) is competent evidence to be considered in determining the damage suffered (see Langdon et al. v. Koch, Springfield Court of Appeals, 393 S.W.2d 66; Bolton v. Missouri-Kansas-Texas Railroad Co., Mo.App., 373 S.W.2d 169, 174; De Long v. Broadston, Mo.App., 272 S.W.2d 493[6]) and is sometimes the predominant criterion. Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158, 164; Beaty v. N. W. Electric Power Cooperative, Mo.App., 296 S.W.2d 921, 925; Thompson v. Granite Bituminous Paving Co., 199 Mo.App. 356, 203 S.W. 496, 498.

Rule 79.04 was promulgated to furnish relief from manifest injustice. It was not designed to relieve the litigant from his obvious duty to give the trial court an opportunity to rule, and it was not intended to further a judicial exercise in nit-picking. We rule against appellant on this point.

Appellant’s second claim of error is that plaintiff’s instruction on the measure of damages contained a “tail” — “said damages not to exceed the sum of $7,500.00.” It has been said, and we agree, that an instruction which suggests an amount which can he recovered, without an explanation to take away the possibility that the jury will accept the amount as one which the judge thinks would be a proper figure, is improper. In some instances the courts have reached the matter by ordering a remittitur because it deemed the award to be excessive.

However, in this case, the amount sued for, and the maximum mentioned' in the instruction, was seventy-five hundred dollars, whereas the verdict was for five thousand dollars. Quite obviously the jury used its own judgment. In such situation it is invariably held that the giving of such an instruction does not constitute reversible error. We so hold in this case.

The final contention is in respect to argument of counsel. In his closing argument, plaintiff’s counsel was permitted to argue the extent and amount of the damages and to read and make comment on the court’s instruction in reference thereto over defendant’s objection that plaintiff’s counsel “didn’t argue any damages in his opening statement.”

The generally accepted rule in argument of a case is that counsel having the affirmative (usually the plaintiff) should develop in his opening statement the points and matters which he wishes to present. The defendant may answer such argument and develop all the points he considers of importance. Then the plaintiff in closing may reply to and counter any argument the defendant has made. The closing argument should be in the nature of a rebuttal. The plaintiff should not conceal or “sandbag” by wholly omitting from argument a salient point or feature of the case and then (if it is not argued by defendant [see Sullivan v. Hanley, Mo.App., 347 S.W.2d 710, 716]) make a closing argument on that feature. Despite the general rule, the means of applying it in the handling of arguments cannot be made fixed and exact because the facts and circumstances of cases vary widely and the application must be somewhat flexible. Thompson on Trials (2d ed.) § 935, p. 780, treats argument of counsel as analogous to introduction of evidence and draws a parallel with the discretionary power of the trial court to permit evidence in rebuttal which should have been offered in chief, provided it has been inadvertently overlooked or not availed of because of accidental circumstances, and by this analogy gives the court the discretion to permit concluding argument upon matters not referred to by the opposite counsel. In Shaw v. Terminal Railroad Ass’n of St. Louis, Mo., 344 S.W.2d 32, 37, 93 A.L.R.2d 265, Eager, J., puts it this way:

“ * * * We recognize that there may be cases where a point has been inadvertently overlooked in the opening and, in the court’s discretion, it may be permissible to supply it later; and it seems that the courts have a certain amount of discretion in refusing or permitting a closing argument when the defendant has waived his argument.”

For this reason, the government of argument of counsel, subject to the broad general rule, is left to the sound discretion of the trial judge. Only when that discretion is abused will the appellate courts intervene. Bertram v. Wunning, Mo.App., 385 S.W.2d 803(7); Greathouse v. Wolff, Mo.App., 360 S.W.2d 297, 302; Davis v. Terminal Railroad Association of St. Louis, Mo., 299 S.W.2d 460, 465; and cases cited supra.

We have no hesitation in saying that it is improper, unfair, and often prejudicial for the plaintiff to omit any mention of the amount and extent of the injury or damage in his opening argument and (unless the defendant chooses to argue such) to devote his closing argument to this feature of the case so that defendant has no opportunity to reply to this newly introduced feature. Counsel should not conceal or withhold his position. He should play the cards dealt him face up and in his rightful turn. He has no right to sneak an ace out of the discards and play it later.

The respondent contends that he is “home free” in respect to such procedure unless the defendant gives plaintiff’s counsel notice or warning of intent to make objection at the time plaintiff makes his opening argument. He, of course, relies upon Shaw v. Terminal Railroad Ass’n, Mo., 344 S.W.2d 32, supra. But we do not understand the Supreme Court to have so held. In that case plaintiff did state in his opening argument that he would, in his concluding argument, cover “some other points”; and at that point defendant did give warning that he would object to argument of the additional points. The fact that warning was given of course removed any doubt that the plaintiff’s counsel had inadvertently or accidentally transgressed and emphasized the unfairness of his act. But we do not understand the court to have held that such warning is always necessary. It would seem to us that counsel are presumed to have knowledge of what is common fairness in procedures, and that it should not be necessary to warn in advance against a wrongful and improper act. Lack of advance warning does not wash away prejudical error. If this were all there was to the case, we would reverse and remand. But we are confronted with a deficiency in the record.

We do not find in the transcript a complete record of either plaintiff’s opening argument or defendant’s argument. All we find are some excerpts (not concerning this matter), with objections thereto. Nor did the trial court in ruling on the objections make any finding as to whether amount of damage had been previously argued. In the words of Matthes, J., in Yankoff v. Allied Mutual Insurance Co., Mo.App., 289 S.W.2d 471, 477: “Quite obviously it is impossible for us to say an argument was prejudicially erroneous when we have no way of knowing what it consisted of.” And we have no way of knowing whether or not plaintiff and defendant, or either of them, did actually argue the very matter to which appellant objects and thus open the way for its expansion in the closing argument. Respondent does not concede he did not refer to the questions in his argument, and it is not agreed that defendant did not cover it; so we must take the record as it comes to us. Baker v. Missouri National Life Insurance Co., Mo.App., 372 S.W.2d 147, 155; West’s Missouri Digest, Appeal and Error, ^ 712. We cannot, therefore, say that the trial judge abused his discretion.

The judgment is affirmed.

STONE and HOGAN, JJ., concur.

      . Peters v. Shull, Mo.App., 379 S.W.2d 837(6); Bolton v. Missouri-Kansas-Texas Railroad Co., Mo.App., 373 S.W.2d 169, 172; Schaefer v. Frazier-Davis Const. Co., Mo.App., 125 S.W.2d 897, 898; Brown v. Pennsylvania Fire Ins. Co., Philadelphia, Mo.App., 263 S.W.2d 893, 899; Curtis v. Fruin-Colnon Contracting Co., 363 Mo. 676, 253 S.W.2d 158, 164.

      . Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 288 S.W. 777, 785; Bales v. Kansas City Public Service Co., 328 Mo. 171, 40 S.W.2d 665, 670; see Hamilton v. Standard Oil Co., 323 Mo. 531, 19 S.W.2d 679, 691; Pogue v. Rosegrant, Mo., 98 S.W.2d 528, 533.

      . Golden v. National Utilities Co., Mo., 201 S.W.2d 292(14); Grubbs v. Kansas City Public Service Co., 329 Mo. 390, 45 S.W.2d 71; Sloan v. Farmer, Mo.App., 168 S.W.2d 467, 471; Bornhoft v. City of Jefferson, Mo.App., 118 S.W.2d 93, 99; Young v. City of Farmington, Mo., 196 S.W.2d 124, 127.

      . 53 Am.Jur. Trial, § 462, p. 366; 88 C.J.S. Trials § 169, p. 335 et seq.; Thompson on Trial (2nd ed.) § 935, pp. 779-780; Votrain v. Illinois Terminal R. Co., Mo., 268 S.W.2d 838, 844; see 93 A.L.R.2d Annotation: 274, 281.

      . Supreme Court Rule 4.22, V.A.M.R.; Shaw v. Terminal Railroad Ass’n of St. Louis, Mo., 344 S.W.2d 32, 36, 93 A.L.R.2d 266; Goldstein v. Fendelman, Mo., 336 S.W.2d 661, 667; see Cumming v. Allied Hotel Corporation, Mo.App., 144 S.W.2d 177, 182.


author: WILLIAMS, Judge. STEWART, Judge

text:
    Nimrod WEDDING, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    Rehearing Denied Oct. 22, 1965.
    John Y. Brown, Lexington, for appellant.
    Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., G. Larry Tucker, Commonwealth Atty., Cynthiana, for ap-pellee.
   WILLIAMS, Judge.

This is an appeal from a judgment of the Harrison Circuit Court overruling appellant Nimrod Wedding, Jr.’s motion for relief under RCr 11.42.

Wedding was tried for murder in March 1961. The jury could not reach a verdict. A second trial in November 1961 resulted in conviction and the death sentence. On appeal to this Court an opinion was delivered affirming the judgment, whereupon the appellant petitioned for a rehearing.

Prior to submission on the petition for rehearing, this Court entered an order granting appellant permission to file a motion to vacate under RCr 11.42. The sole issue was whether Wedding had effective representation by counsel at his trial. Following a hearing on the question a special judge of the Harrison Circuit Court found that he did. We do not agree.

In Rice v. Davis, Ky., 366 S.W.2d 153 (1963), we noted that the right to assistance of counsel guaranteed by the 6th Amendment to the Constitution of the United States, as well as by Section 11 of the Constitution of Kentucky, means “effective assistance.” We look then to the facts brought out at the hearing.

When the case was first set for trial Wedding did not have counsel and did not have sufficient means to employ counsel. The circuit judge thereupon appointed every lawyer of the Harrison County Bar, except one elderly gentleman and the public prosecutors. The “dean” of the appointed group acted as leader and conducted the trial. He stated that the circuit judge assured him that no Harrison County jury would give more than a life sentence, and he knew that such had been the habit in the past; consequently “we were lulled into the feeling that our duties were .perfunctory and that as a result thereof none of the defense attorneys ever interrogated any of the prospective Commonwealth witnesses and each proceeded on the ancient adage that ‘everybody’s business is nobody’s business,’ and that as a further result, no single or united effort was made to prepare the defendant’s defense ; * * * ” “ * * * we proceeded in the second trial the same as we had in the first and interrogated no prospective witnesses, either for the defense or the Commonwealth, and that no single or united effort was made to prepare the defendant’s defense on the second trial.”

In Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932), the leading decision on the subject, the trial court appointed “all the members of the bar” to represent certain indigent defendants who were charged with rape. The Supreme Court commented as follows;

“ * * * How many lawyers were members of the bar does not appear; but, in the very nature of things, whether many or few, they would not, thus collectively named, have been given that clear appreciation of responsibility or impressed with that individual sense of duty which should and naturally would accompany the appointment of a selected member of the bar, specifically named and assigned.
“ * * * during perhaps the most critical period of the proceedings against these defendants, that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important, the defendants did not have the aid of counsel in any real sense, although they were as much entitled to such aid during that period as at the trial itself.”

We do not speculate on what the outcome might have been under different circumstances. In view of the fact that all of the available lawyers at the Bar were appointed and, by their own admission, none of them made any reasonable preparation for trial, we conclude that Wedding was denied effective assistance of counsel.

The judgment is reversed, with directions that the judgment rendered on the verdict of the jury made November 10, 1961, be vacated.

MONTGOMERY, PALMORE and STEWART, JJ., dissenting.

STEWART, Judge

(dissenting).

I dissent from the opinion which holds appellant was not adequately represented at his trial in the case at bar.

Chief counsel for appellant at both trials was Mr. J. Thaxter Sims. Three other attorneys were appointed to represent appellant, namely, Messrs. Royce C. Pulliam, John Swinford, and Wayne Fitzgerald, all of Cynthiana. Mr. Sims has been a practicing lawyer since June, 1927, and has been in active practice in Cyn-thiana since 1933. Through the years he has tried criminal cases by appointment. He represented at least one defendant charged with murder in the 1950’s (his co-counsel in that case being Mr. Wayne Fitzgerald, one of the associate counsel in this case). Mr. Sims was county attorney for Robertson County for three years from 1930 to 1933. He once ran for Commonwealth’s Attorney in the district where this case was tried but was defeated. Unquestionably he considered himself competent for that position.

Mr. John M. Keith, who had been county attorney for Harrison County for twenty-two years at the time of the hearing on the motion, and a practicing lawyer in

Cynthiana since 1936, testified concerning the professional ability of Mr. Sims. He has observed Mr. Sims a number of times and the following statements are cited from his testimony:

“Q. 10 Have you formed an opinion as to his competency as a result of your observation of him?
“A. Definitely.
“Q. 11 What is your opinion, sir?
“A. Well, if you let me narrate a little bit, I had an argument the other day on who is the best criminal lawyer in Kentucky and the fellow I was arguing with said John Y. Brown and I said I’d just as soon have Thaxter Sims as my lawyer in a criminal case.”

As to the final argument made by Mr. Sims in this case, Mr. Keith had this to say:

“Q. IS Were you present during the summation he made in this case at the second trial?
“A. Yes, sir.
“Q. 16 As a lawyer would you give an opinion as to how the summation sounded to you?
“A. I have heard all kinds and I can’t say I ever heard a better one, for what he had to go on.”

In the light of the foregoing testimony, can it be said Mr. Sims was not adequately qualified to handle defendant’s case? I believe his qualifications were fully established. However, the opinion’s holding seems to be based upon the assumption that Mr. Sims was derelict in his duty in respect to the manner in which he conducted the defense. This view seems to be based upon the belief that he did not put forth his best efforts at the two trials, and, furthermore, that he did not undertake to prepare any defense.

Mr. Sims, testifying concerning his actions in this case, gave this reason for his decision not to cross-examine the Commonwealth’s witnesses: “I just figured if I cross examined them it would maybe make their answers stronger and that’s the pattern we followed.” As to his professional attitude toward the case, he stated that he was not living in any fear of any consequences or of any criticism, but was only living in fear of what would happen to appellant. On this latter point he stated he was so concerned about the case that he had sleepless nights about the verdict.

Mr. Wayne Fitzgerald, another of the counsel appointed for appellant, has been a practicing lawyer in Cynthiana since 1950. He has participated by appointment in a great number of criminal cases prior to the trial of appellant. In respect to the preparation of the case, Mr. Fitzgerald’s testimony was that he had knowledge of what all the witnesses would and did say. The testimony was the same at both trials and, as a result of the information he had prior to the trials, no testimony at either trial surprised him. Mr. Fitzgerald was present at all of the conferences which were held with appellant in Mr. Sims’ office. Mr. Fitzgerald’s recollection was that appellant was in the office of Mr. Sims on two or three occasions but that he made no statement on those occasions. As to the discussions in the presence of appellant, Mr. Fitzgerald’s testimony was:

“Q. 29 Are you speaking of Mr. Sims or the defendant?
“A. I say the defendant.
“Q. 30 The case was discussed in his presence, was it not?
“A. On these occasions we didn’t have a case. We were depending on him to assist us and he was of no assistance whatsoever.
“Q. 31 After having him in your office you still didn’t have a case?
“A. We were exactly where we were to start with.”

Based on his experience and what he knew before and during the trial of appellant, Mr. Fitzgerald, knew of no defense in the case. There was no defense known to him at the time of the trial which he could have presented and did not present. We might add the opinion takes no account of the fact that Mr. Fitzgerald, along with Mr. Sims, represented appellant throughout his lengthy litigation. Also, no mention is made of Mr. Pulliam and Mr. Swinford, both of whom stayed in the case until the second trial was concluded; in fact, Mr. Swinford briefed this case on an appeal to this Court.

Sim Haggard, county jailer for Harris-son County both at the time of the trial and at the time of the hearing on the motion, was the person in whose custody appellant was taken for interviews with his attorneys. He testified that he took appellant to the office of Mr. Sims “on four or five different occasions,” all before the trial of .ppellant on November 8, 1961. On these occasions, Haggard would “stay sometimes two hours and a half and sometimes three hours.” He waited in the lobby of the office while appellant was in conference with his attorneys.

The hearing at which the foregoing testimony was produced was begun and concluded before the Honorable Lloyd E. Rogers, as special judge, on August 8, 1964. The testimony we have alluded to stands uncontradicted. On August 26, 1964, Judge Rogers entered his findings of fact, conclusions of law, and final order overruling the motion to vacate the judgment. The findings of fact read as follows:

“J. Thaxter Sims, chief counsel for the defendant is too modest in his appraisal of his own ability as a lawyer, both in the fields of civil and criminal law, and mistaken in his opinion of the ability of all counsel associated with him in the trial of this case and there was no evidence adduced at the hearing to sustain the defendant’s claim that he was denied effective representation of counsel as guaranteed by the Constitution of the United States.”

In the present case, witnesses saw appellant run his car up over the curb, hit the decedent, back into the street, circle the block and return to the scene of the crime. Another witness at this location saw a man carrying a person on his back. The body of the decedent was later discovered two or three miles away, where it had been dropped from a railroad bridge near a place known as Wood’s Crossing. The medical proof was to the effect that the decedent was alive at the time of the drop but died later from shock and exposure. Other evidence disclosed appellant had been at or near the decedent’s liquor store during the day and evening in question and that, when arrested, he had in his possession the decedent’s money and other incriminating property. Three witnesses testified appellant admitted the acts resulting in the victim’s death. At the trial he neither testified nor introduced any witnesses in his behalf.

The circumstances of this case testify much more effectively than any of the witnesses ever could. Appellant’s counsel were confronted with a case carefully prepared by the prosecution (and fairly prosecuted, we might add) as to which no meritorious defense could be presented. What remained to be done in this capital offense case? There was no choice of alternatives — a plea of mercy was the only course available. That course was most vigorously pursued, particularly by the forceful argument made by Mr. Sims in his plea not to inflict the death penalty.

I am of the opinion appellant was ably represented at his trial by four competent counsel, headed by a most experienced and skillful practitioner. A hindsight attack on what were obviously deliberate trial tactics (and tactics, we might add, which leave no room for criticism, even at this late date) falls far short of demonstrating ineffective assistance of counsel. Those tactics were twice pursued. At the first trial, employing the same tactics, a hung jury resulted, and this goes to show that, at the second trial, the defense attorneys knew of the nature of the case and were well prepared. Under the circumstances, it does not seriously test the imagination to conceive that these same tactics would be used before a third jury, in the event of another trial. But one fair trial is all the law prescribes for any man. Appellant has had his.

In Rice v. Davis, Ky., 366 S.W.2d 153, 156, it was stated:

“Effective representation by counsel, in order to satisfy the accused’s constitutional right to a fair trial, is a rule of law that has been strictly construed. It must mean representation so lacking in competence that it becomes the duty of the court to observe such a condition and correct it. Allegations of serious mistakes on the part of an attorney, standing alone, even where harm results, are not a ground for habeas corpus. In all the cases decided on this subject, the circumstances surrounding the trial must be such as to shock the conscience of the court and make the proceeding a farce and a mockery of justice. See Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667.”

I submit that appellant’s trial which resulted in his conviction should be upheld when this test is applied to all the surrounding facts.

As this is a proceeding under RCr 11.42, and since the judgment is supported by relevant evidence of substance, I do not believe the judgment should be disturbed.

MONTGOMERY and PALMORE, JJ., join with me in this dissent.


author: WILLIAMS, Judge.

text:
    Nimrod WEDDING, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Jan. 29, 1965.
    John Y. Brown, Lexington, J. Thaxter Sims, Royce Pulliam, Wayne Fitzgerald, John Swinford, Cynthiana, for appellant.
    John B. Breckinridge, Atty. Gen., Ray Corns, Asst. Atty. Gen., G. Larry Tucker, Commonwealth Atty., Cynthiana, for ap-pellee.
   WILLIAMS, Judge.

Wedding v. Commonwealth of Kentucky, Ky., 394 S.W.2d 105, directs the Judge of the Harrison Circuit Court to vacate the judgment appealed from herein. Consequently, this appeal has become moot, and is hereby dismissed.


author: CLAY, Commissioner.

text:
    Emerson JOHNSON, Appellant, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellee.
    Court of Appeals of Kentucky.
    May 21, 1965.
    Rehearing Denied Oct. 22, 1965.
    Thomas B. Givhan, Shepherdsville, Robert L. Milby, Hamm, Taylor & Milby, London, for appellant.
    Edwin R. Denney, Charles Landrum, Jr., Denney & Landrum, Lexington, Herman M. Tye, Barbourville, James M. Terry, Eugene W. Herde, Louisville, for appellee.
   CLAY, Commissioner.

This suit was brought by plaintiff appellant against defendant appellee railroad under the Federal Employers’ Liability Act (45 U.S.C.A. § 51 et seq.) and/or KRS 277.310. A verdict was directed for defendant on the ground that plaintiff was not an “employee”.

Whether the federal or state statute applies is unimportant because they are substantially the same with respect to the basis of liability. In substance they provide that a railroad common carrier shall be liable in damages for negligence to any person suffering injury “while he is employed by such carrier”.

The accident occurred during an unloading operation of one of defendant’s freight cars on a siding or team track (referred to as “the Mill Track” ). It was used for the delivery of freight to the Haeberlin Supply Company (hereafter referred to as “Haeberlin” ), and others. Haeberlin had entered into a license agreement with defendant which gave the former a preferred but not exclusive use of a SO foot section of this siding, under which Haeberlin maintained a concrete pit for the unloading of sand and gravel.

Plaintiff was an employee of Haeberlin. He, with two other Haeberlin employees, had unloaded a car over the pit. It was necessary to move it to make room for another car to be unloaded. While engaged in a routine method of spotting the car, plaintiff was injured.

It is undisputed that plaintiff was regularly employed by Haeberlin, was performing the unloading work for it, and was exclusively under its supervision and control. Plaintiff contends, however, that the movement of the freight car constituted a railroad operation of defendant, that in such operation plaintiff was a “loaned servant” of the defendant, and therefore was the latter’s employee. It is suggested that, in the light of many court decisions which have considered related problems, we can evolve some legal theory which would identify plaintiff as an “employee” of the defendant under the Federal Employers’ Liability Act.

We encounter no difficulty with the “loaned servant” doctrine. An employee of one person can become the servant of another, alternately or simultaneously, or wholly or partially. See Restatement, Agency 2d, section 227 (page 500); 35 Am.Jur., Master and Servant, section 18 (page 455); Ambrosius Industries v. Adams, Ky., 293 S.W.2d 230.

One of the earlier cases invoking the doctrine under the Federal Employers’ Liability Act was Linstead v. Chesapeake & O. Ry. Co., 276 U.S. 28, 48 S.Ct. 241, 72 L.Ed. 453. The injured person, a conductor, was an employee of the Big Four Railway Company. By a reciprocal ariangement, Big Four and the C & O alternated the furnishing of train crews for the interchange of traffic on a 12 mile section of track owned by the C & O. On the day of the accident the Big Four employee was part of the train crew moving a C & O train of cars on this section of track. The Supreme Court held the employee had been loaned to the C & O by the Big Four, that the work being done was the work of the C & O, and that the train crew was under the supervision and control of the C & O. Obviously under these circumstances, at the time of the accident the Big Four employee was acting as the servant of the C & O. In resolving the basic question, the opinion stated (page 34, 48 S.Ct. page 243) that the inquiry must be: “whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work.” (Our emphasis)

From this innocuous beginning, the “loaned servant” doctrine under the Federal Employers’ Liability Act has grown into such a giant octopus of intermingled legal theories as to lead some federal courts to the brink of despair.

Some of the problems which developed are exhibited in the leading case of Cimorelli v. New York Central R. Co., 6 Cir., 148 F.2d 575. Here the railroad company had contracted with the United States government to maintain in its yards a temporary storage place for war material in transit, which included unloading and reloading cars. The railroad company was to be paid extra for its services. It then contracted with the Duffy Company to unload and reload the cars. An employee of Duffy was injured. It was held that because the railroad company had general control of the operation, Duffy was not an independent contractor and therefore the injured party was an employee of the railroad. (The reasoning in this opinion is in some respects difficult to follow.) Similar cases are Pennsylvania Railroad Company v. Roth, 6 Cir., 163 F.2d 161, certiorari denied, 332 U.S. 830, 68 S.Ct. 208, 92 L.Ed. 404, and Pennsylvania Railroad Company v. Barlion, 6 Cir., 172 F.2d 710.

There are many more “independent contractor” and other cases which exhibit an amazing lack of consistency. The concepts of “general control” of a particular operation, specific control of “the details of the work being performed”, and the “right to control” are so intermixed and differently emphasized that the law on the subject as it relates to the Federal Employers’ Liability Act is well nigh incomprehensible. See Hull v. Philadelphia & Reading Ry. Co., 252 U.S. 475, 40 S.Ct. 358, 64 L.Ed. 670; Baker v. Texas & P. Ry. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756; Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820; Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709; Drago v. Central R. Co., 93 N.J.L. 176, 106 A. 803, certiorari denied, 251 U.S. 553, 40 S.Ct. 118, 64 L.Ed. 411; Docheney v. Pennsylvania Railroad Company, 3 Cir., 60 F.2d 808, certiorari denied, 287 U.S. 665, 53 S.Ct. 222, 77 L.Ed. 573; Latsko v. National Carloading Corporation, 6 Cir., 192 F.2d 905; Dougall v. Spokane, P. & S. Ry. Co., 9 Cir., 207 F.2d 843, certiorari denied, 347 U.S. 904, 74 S.Ct. 429, 98 L.Ed. 1063; Byrne v. Pennsylvania R. Co., 3 Cir., 262 F.2d 906, certiorari denied, 359 U.S. 960, 79 S.Ct. 798, 3 L.Ed.2d 766; Mazzucola v. Pennsylvania Railroad Company, 3 Cir., 281 F.2d 267, 91 A.L.R.2d 518.

There is one comforting and consistent fact which appears in the foregoing cases. From a realistic as well as a legal standpoint, the activity involved constituted work being performed for the railroad.

Plaintiff in effect calls upon us to extract from a tangled web of legal principles some legal theory which would stretch the “loaned servant” doctrine to cover him. Perhaps we should summarily decline this invitation because plaintiff fails to show us the way, but since we have examined the vast number of cases cited by both parties (and others), we will comment further on the lack of merit in plaintiff’s position.

In the first place, we have no “independent contractor” problem. This is so for the simple reason that Haeberlin had not contracted with defendant to perform any service for it, independently or otherwise.

Plaintiff suggests that under section 16 of the Licensing Agreement, which permitted Haeberlin a special use of defendant’s siding for unloading operations, Hae-berlin undertook to perform some service for the defendant. That section in substance provided that in case it was necessary for Haeberlin to move cars from place to place on the track it would only designate its own employees who were experienced. What this has to do with anything involved in this case we are unable to grasp. Haeberlin did not undertake or agree to perform any service for defendant.

Further clarifying the controversy, we have no problem involving the extent of defendant’s actual control of the plaintiff in the performance of this particular work. This is so because there was no semblance of such control at all. Defendant did not participate in any manner in this unloading operation or any phase of it.

Having eliminated the “independent contractor” and the actual “supervision” or “control” problems which have so plagued the federal courts, we are almost at the end of our rope. Only one small knot remains.

The suggestion is made that the movement of a railroad car on a siding is a non-delegable operating function of a railroad company, that therefore this particular movement constituted work performed for the railroad, that thereby defendant had a “right to control’ the plaintiff’s activities, and consequently the plaintiff was defendant’s employee. No authority is cited for such a proposition and it cannot be supported as a matter of fact or theory.

Haeberlin contracted with defendant for a line haul service which included placing freight cars on the Mill Track siding. Defendant’s tariff charge did not require of it any further movement of such cars thereon. See Propriety of Operating Practices, Ex Parte 104, 209 ICC 11 (1935); Corn Products Refining Co. v. United States, D.C., 69 F.Supp. 869, affirmed 331 U.S. 790, 67 S.Ct. 1521, 91 L.Ed. 1819; United States v. Wabash Railroad Co., 321 U.S. 403, 64 S.Ct. 752, 88 L.Ed. 827.

The “spotting” of the freight car which resulted in plaintiff’s injury was an operation that defendant neither was required to perform nor was performing as a part of the common carrier service. This activity was solely for the benefit of Haeber-lin, and was carried out exclusively by its employees entirely under its control. The unloading movement cannot be characterized as part of the operation of the railroad or as work or service being performed for it. See in this connection Stevenson v. Lake Terminal R. Co., 6 Cir., 42 F.2d 357; Docheney v. Pennsylvania R. Co., 3 Cir., 60 F.2d 808; certiorari denied, 287 U.S. 665, 53 S.Ct. 222, 77 L.Ed. 573.

We return to our beginning point. Unless the work was being performed for the defendant in some realistic sense, we cannot even start on the tortuous road toward a determination that the employee of another party may be labeled in law an “employee” of defendant. Since the activity cannot be so classified, plaintiff did not even begin to establish a claim against defendant under the Federal Employers’ Liability Act or KRS 277.310.

Plaintiff suggests one more possibility. It is that defendant was liable to plaintiff as a member of the public for the acts of its licensee Haeberlin under section 203 of the Kentucky Constitution. That section relates to the leasing or alienation of a franchise by a corporation. The simple answer to this argument is that defendant had neither leased nor alienated its franchise to Haeberlin, nor could plaintiff be classified as a “member of the public” within the rule of liability. See Hunsaker’s Adm’x v. Chesapeake & O. Ry. Co., 185 Ky. 686, 215 S.W. 552, 28 A.L.R. 117.

The trial court properly directed a verdict for defendant.

The judgment is affirmed.


author: HILL, Judge.

text:
    Joseph E. SCAMAHORNE and Charles Plouvier, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 28, 1965.
    Rehearing Denied Oct. 22, 1965.
    See, also, Ky., 376 S.W.2d 686.

      P. Joseph Clarke, Jr., Danville, for appellants.
    Robert Matthews, Atty. Gen., Joseph H. Eckert, Asst. Atty. Gen., Frankfort, for appellee.
   HILL, Judge.

Appellants were convicted of having burglary tools in possession under KRS 433.-120(2) and their punishment fixed at confinement for two years in the State Penitentiary. Appellants contend their constitutional rights have been violated because they were deprived assistance of counsel; the instructions should have defined “possession;” and evidence of possible uses of tools and types of crimes which could be committed with tools was inflammatory and prejudicial.

We shall discuss these grounds assigned for reversal in the order listed above.

First, we briefly review the facts. On February S, 1964, about 1:15 A.M., two police officers of the city of Danville were making their routine patrol of business establishments and in doing so they drove to the rear of the Coca Cola Bottling Plant. They discovered a number of holes in a panel of one of the doors and proceeded to investigate. They found no one nearby and apparently believing that the persons who made the holes were close at hand, one of the officers went around one side of the building and the other took the opposite course. One of the officers discovered the two appellants, Joseph E. Scamahorne, age 49, and Charles Plouvier, age 18, hiding behind the shrubbery in front of the building.

Appellants first complain their constitutional right to assistance of counsel has been violated and that the verbal confessions of appellants were incompetent, prejudicial and should not have been admitted. The question of the constitutional right of indigent persons to have assistance of counsel is a troublesome one. This jurisdiction was one of the pioneers in providing counsel for indigent accused persons. This fact was noted in Carson v. Commonwealth, Ky., 382 S.W.2d 85, as follows:

“This jurisdiction has long held fast the fundamental right of an accused to be represented' by counsel. Kentucky Constitution § 11 specifically provides that an accused has the right to be heard by himself and counsel in all criminal prosecutions. This court has repeatedly held that the accused’s right to counsel is an inviolable one, and may be waived only if done understandingly, intelligently, competently and voluntarily. Schneider v. Com., Ky., 332 S.W.2d 250; Roberts v. Com., Ky., 339 S.W.2d 640; Hart v. Com., Ky., 296 S.W.2d 212; 6 Ky.Digest 2, Criminal Law, 641”

It may be added, in connection with appellants’ contention the confession should have been suppressed, that Kentucky has, since long before 1912, recognized the “presumption of innocence” and sought to protect accused persons by the enactment in 1912 of the “Anti-Sweating Act,” now KRS 422.110, which we quote:

“No peace officer, or other person having lawful custody of any person charged with crime, shall attempt to obtain information from the accused concerning his connection with or knowledge of crime by plying him with questions, or extort information to be used against him on his trial by threats or other wrongful means, nor shall the person having custody of the accused permit any other person to do so. (2) A confession obtained by methods prohibited by subsection (1) is not admissible by evidence of guilt in any court. The trial judge shall determine the competency and admissibility of any alleged confession under the provisions of this section from evidence heard by him, independent of and without the hearing of the jury trying the case.” (Our emphasis.)

Before attempting to determine at what particular time, in this case, appellants were entitled to the appointment of counsel, let us get a better picture of what transpired. Appellants were removed from jail to the office of the Chief of Police at 7:30 A.M., six hours after their arrest. The only persons present were Chief Everett Kidd and patrolman William Arnold. No warrant had been issued up to’ this time. Neither of the arresting officers was present. At a hearing in chambers, in the absence of the jury, at the trial in circuit court, the trial judge carefully examined Chief Kidd relative to whether there was any “sweating.” He testified there were no threats, promises or “anything;” that the statement was voluntary. We quote from his testimony given in chambers:

“Q — Was it just a general discussion that you had during the time you were fingerprinting them ?
“A — Yes, this questioning took place before the fingerprinting, but most of it was two questions that I asked him and, of course, he volunteered along as to the trip and the route they had taken from New Haven.”

As the confession may relate to volun-tariness and' waiver of counsel, we quote further from Kidd’s testimony given before the jury:

“Q — Just relate, if you will, what conversation you had with either or both of these men and the conversation that occurred in the presence of both?
“A — Their names and addresses were verified. Their activities before the occurrence at the Coca Cola plant — Mr. Scamahorne’s statement was that on February 4th at approximately 8:30 A.M., Scamahorne and Plouvier left New Haven, Kentucky, came to Perryville by way of Springfield. Highway 150 was under construction at that time between Danville and Perryville and they detoured to Parksville, took Highway 300 from Parksville to Stanford. They were asked as to why they were going to Stanford and Mr. Scamahorne said they had business in Stanford but refused to discuss that business. After taking care of that business, he further stated they continued on to Danville by way of ISO to the cross roads intersection of 150 and Highway 52, turning right on highway 52. Driving approximately one mile on the Lancaster road, he parked his automobile, the two men got out of the car and walked to the rear of the Coca Cola plant, carrying with them a sack of tools. They were also questioned as to why they were going into the Coca Cola plant and as to why they had these tools. Mr. Scamahorne stated that he had these tools in order that he might break into a safe or cabinet where he thought money might be kept in a building.”

Passing the question of right of counsel for the moment let us see whether the verbal confession was proper. Prior to 1942, if the evidence was conflicting on question of voluntariness or “sweating,” the issue was submitted to the jury. Commonwealth v. McIntosh, 257 Ky. 465, 78 S.W.2d 320 (1935); Crawford v. Commonwealth, 264 Ky. 498, 95 S.W.2d 12. Since KRS 422.110 was amended in 1942, the question must be decided by the trial court, and its decision thereon will not be disturbed unless supported by insufficient evidence. Tarrence v. Commonwealth, Ky., 265 S.W.2d 52 (1953).

Certainly the decision of the trial court in the present case finding the confession to be voluntary and given without fear or promise of reward was sufficiently supported by convincing evidence. In fact, we are impressed with the apparent fairness and consideration of the Chief of Police and the patrolman present. Had the Chief anticipated difficulty in solving this crime, he could have waited until the two arresting officers were present to confront the appellants as they were interrogated. It appeared to be a casual, routine procedure, free of fear, pressure or duress. The details of the confession are strong evidence it was voluntary. We think this is a situation where the appellants thought the law had the “dead wood on them,” so they concluded it best just to “come clean.”

Now, were the appellants entitled to the appointment of counsel before this confession was made ? The testimony shows, without contradiction, they did not ask for the appointment of counsel until after they had voluntarily confessed and detailed the crime. It was only when the Chief of Police asked them if they would sign a written statement that appellant, Scamahorne, refused and announced they wanted an attorney. Had the officers wanted to misrepresent any of the circumstances they could have just said they never asked for an attorney at all. So, we are convinced the appellants did not ask for an attorney before their voluntary confessions.

Counsel for appellants cite and quote from the dissenting opinion of Justices Douglas, Black and Brennan in Crooker v. State of California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958). We cannot accept this philosophy. This majority opinion in Crooker furnishes no guidance for the present case. In fact, the rule in Crooker is questionable in the light of later decisions, such as Escobedo, hereafter discussed.

Now, to the critical question, did appellants have the intelligence to know their right to have counsel and to waive that right? They had the intelligence to operate their automobile; leave it parked a mile from the crime; to grovel across a dark field where no one was expected to see them; to sack up a 25-pound sledge hammer, a crow bar, a screw driver and other tools; to get to the back of the building (Coca Cola) wherein there was a possibility there was money; to run and hide behind the evergreens when the lights from the police cruiser appeared; to put up their hands when the officers flashed light on them, and ask the officers not to shoot.

We think the appellants were sufficiently intelligent to know that anything they admitted could be used, against them, and to know they had a right to counsel and a right to waive counsel.

Appellants rely on Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799, 93 A.L.R.2d 733. Gideon asked for and was refused counsel. He conducted his own defense. This was a non-capital felony in the State of Florida where a statute provided for counsel only in capital cases. It held Gideon entitled to counsel notwithstanding the statute.

Reference is made to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. This case involved a confession or incriminating evidence obtained by the secret installation of radio transmitter in Massiah’s automobile. This is not a parallel case to the case at bar, nor does it furnish authority to support appellants’ contention.

Next, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (decided 1964), is relied upon. Escobedo demanded and was refused access to his attorney. In fact, the attorney spent a number of hours trying to get into the room in which Escobedo was being interrogated. The nearest he was able to get to his client was when a door was opened he got a brief view and a wave from his client before the door was again closed. He was also subjected to long hours of interrogation and pressure as well as promises of protection. Escobedo is not the answer to our question. Appellants did not ask for counsel.

Concluding their argument on this phase, appellants cite State of California v. Dorado, 61 A.C. 892, 40 Cal.Rptr. 264, 394 P.2d 952. This case followed Massiah and Escobedo, and went further. It partly supports appellants’ theory that their constitutional rights have been violated. Dorado did not ask for counsel, nor was he advised of his right to counsel or to remain silent. Dorado, a life termer, was given death for killing a fellow prisoner. The court reversed because Dorado was not advised of his right to counsel and to remain silent. The court found no merit in the state’s argument that defendant must specifically request counsel. Each case should be decided on the particular facts of the case. In this case, the controlling question is, whether, in the absence óf a request for counsel, was the right waived? We think it was waived. This being so, neither Mas-siah nor Escobedo requires us to go as far as the California court went in Dorado.

Appellants next assert the trial court should have defined “possession.” Fennen v. Commonwealth, 240 Ky. 530, 42 S.W.2d 744 is cited. Fennen did not hold “possession” should be defined. It held that there might be a case where it would be necessary. Such a case is one where there is evidence that illegal property is found in a room of a tenant of a rooming house, where the landlord is charged with possession, contending the property belonged to the tenant. This is not such a case. Actually, the brace and bit was found at the very spot from which appellants were flushed out of the shrubbery; they were likely standing on it. We think this is possession.

Finally, objection is made that evidence of “possible use of the tools and types of crimes which could be committed was inflammatory and prejudicial.”

We find the contention without merit. After a plea of not guilty the burden was on the Commonwealth to prove that the tools mentioned in evidence were “burglar” tools.

The judgment is affirmed.


author: WADDILL, Commissioner.

text:
    R. E. GADDIE, INC., et al., Appellants, v. Kenneth EVANS et al., Appellees.
    Court of Appeals of Kentucky.
    June 11, 1965.
    Rehearing Denied Oct. 22, 1965.

      Joe B. Orr, Jerry L. Moore, Bell, Orr & Reynolds, Bowling Green, Joseph E. Sto-pher, A. J. Deindoerfer, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellants.
    Terry L. Hatchett, Glasgow, Paul Carter, J. C. Jernigan, Tompkinsville, Carroll M. Redford, Carroll M. Redford, Jr., Redford & Redford, Glasgow, Maxey B. Harlin, William J. Parker, Coleman, Harlin & Orendorf, Bowling Green, for appellees.
   WADDILL, Commissioner.

The appeal is from a judgment holding appellants Bishop Ford and his employer, R. E. Gaddie, Inc., jointly liable with appel-lees Donald Crone and John Hickerson to appellee Kenneth Evans for $55,000 and to appellee Clarence Page for $45,000 as compensation for medical expenses and permanent impairment of ability to earn money due to injuries received by them on August 25, 1960. The sufficiency of the evidence to support the amounts of these awards is not in dispute.

Appellee Stephens-Jeffrey, a partnership, (hereinafter referred to as S-J) contracted with the Commonwealth of Kentucky to reconstruct a portion of Fourth Street in Tompkinsville. Appellant R. E. Gaddie, Inc., (hereinafter referred to as Gaddie) contracted with S-J to perform the actual paving operation. Appellee Trico Stone, Inc., (hereinafter referred to as Trico) contracted with Gaddie to furnish the stone necessary for paving. Appellee Donald Crone contracted with Trico to haul its stone to Foürth Street. With this pyramid of contracts in effect we turn to the events which brought about this litigation.

During the afternoon of August 25, 1960, paving operations were being conducted on Fourth Street under the direction of Bishop Ford, general superintendent for Gaddie. In accordance with its contract with S-J, the Commonwealth had two of its employees, Kenneth Evans and J. R. Stewart, at the jobsite for the purpose of inspecting the material being laid on the surface of the street by Gaddie. As they prepared to make a compaction test in the center lane of the three lanes into which Fourth Street was divided for paving purposes, Evans and Stewart knelt d6wn at the test site. They were joined by Clarence Page who was employed in a nearby store. Concurrently John Hickerson, a driver for Crone, backed a truck loaded with stone aggregate toward the three men but in the curb lane. A short distance before he would have come abreast of these men he brought his truck to a stop, turned into the center lane and continued backing the truck until it struck Evans and Page. Both men sustained severe bodily injuries.

Evans and Page each instituted an action against S-J, Gaddie, Ford, Trico, Crone and Hickerson. The cases were consolidated and upon trial the court directed a verdict for S-J and Trico. A verdict was returned against the other four defendants. Only Gaddie and Ford appeal and all other parties have been made appellees.

Appellants urge that the trial court erred in submitting the case under instructions which in effect required the jury to find for or against Gaddie, Ford, Crone and Hickerson. Appellants offered an instruction similar to that set out in 2 Stanley Instructions to Juries, Section 603, page 318. We need consider the propriety of the instructions only as they relate to Gaddie and Ford since Crone and Hickerson did not appeal.

Although a separate instruction was submitted on the possible negligence of Gad-die, Ford and Hickerson, in each instance the jury was given no discretion to find less than the four defendants liable. Appellees contend the instructions were proper since Gaddie and Ford were jointly and severally liable with Crone and Hickerson for the latter’s negligence under the loaned servant doctrine inasmuch as they had supervision and .control of Crone’s drivers at the site of the paving. This contention is without merit since we hold as a matter of law that Hickerson was not a loaned servant. Fisher Equipment Co. v. West, Ky., 365 S.W.2d 319.

The instructions could be justified if one of Gaddie’s employees had been concurrently negligent with Hickerson in directing or permitting him to drive in the center lane. However, the evidence for Gaddie was that Hickerson was directed to stop his truck as it was being backed in the curb lane but Gaddie’s employees all deny that they directed Hickerson to start up again in a different lane. Since Hickerson testified that he was directed by an employee of Gad-die to back his truck into the center lane the jury should have been permitted to determine the question of appellants’ negligence separate and apart from that of Hick-erson and Crone. This error was prejudicial to the appellants since the jury could have conceivably- found the injuries of Evans and Page were due solely to the negligence of Hickerson and Crone.

The trial court permitted each plaintiff and each set of defendants having alleged antagonistic interests to have three peremptory jury challenges. KRS 29.290. As to the defendants this was correct as they had antagonistic interests because of their cross-claims (Roberts v. Taylor, Ky., 339 S.W.2d 653), but in the absence of any antagonism shown between the trial positions of Evans and Page it was error to let them have three challenges apiece. Wells v. Conley, Ky., 384 S.W.2d 496. In the event of a new trial the error should not reoccur.

Appellants contend they cannot be held liable for Page’s injuries because he was guilty of negligence as a matter of law. Hence, they argue that they were entitled to a directed verdict against him. It will be remembered that Page was employed as a clerk in a store on Fourth Street. It was shown that Page, on returning from delivering a soft drink to a workman, had squatted down beside Evans to watch him make the compaction test. He knew that heavy-equipment was. in use and that trucks arrived on a frequent schelule and backed down the street. Since the street was not closed to traffic and there were no flagmen about, Page, as a reasonable man, may have been entitled to consider this location safe in view of the fact that Evans and Stewart were properly performing their duties there. We conclude the trial court did not err in refusing to direct a verdict in favor of appellants and against Page. The submission of the question of Page’s negligence to the jury was proper.

Appellants contend the trial court erred in directing a verdict in favor of S-J, the prime contractor, since it had a non-delegable duty to use ordinary care to protect persons properly on the construction site from injury. The determinative question is “What duty to Evans and Page did S-J breach causing their injury?” As has been shown they were injured when Hick-erson backed into them and there is some evidence that Ford was responsible for sig-nalling him to drive where he did. These are the only possible acts of active negligence neither of which is a breach of duty on the part of- S-J as in Massey v. F. H. McGraw & Co., 6 Cir., 233 F.2d 905, cited by appellants. There was no evidence to show that S-J could have anticipated the type of accident which occurred so as to place a duty on it to guard against such an accident as in authorities relied upon by appellants. Nor do they suggest what S-J might have reasonably done to have prevented the accident.

Appellants insist they were entitled to a directed verdict because the only possible negligence of Ford was in failure to provide a safe place for the state inspectors to work and this was a non-delegable duty of S-J. We have already determined S-J breached no duty. More importantly appellants ignore the evidence showing they were in charge of the jobsite and were responsible for signalling Hickerson to drive in the center lane. They were not entitled to a directed verdict.

The contract between the Commonwealth and S-J contained the following provision:

“Sub-contractors shall be recognized only in the capacity of employees or workmen and shall be subject to the same requirements as to character and competence.”

Appellants argue that Evans, as an employee of the Commonwealth, was a third party beneficiary of this contract and under the doctrine of respondeat superior he could hold S-J responsible for any negligent acts of Gaddie and Ford. However, the language of this provision shows merely an attempt to prevent the prime contractor’s blaming inferior work on the incompetence of men hired by sub-contractors over whom he had no control. It does not indicate an intention to abrogate the distinction between employee and independent contractor. Here Gaddie furnished its own equipment, hired and fired the men to do the repaving and determined when they would work. The common law rules of tort liability remained in effect and the trial court properly directed a verdict for S-J. See McLellan v. Brown, 275 Ky. 30, 120 S.W.2d 742.

Appellant next contends Evans, who was working under provisions of the Workmen’s Compensation Act, KRS, Chapter 342, may not recover for tort against Gad-die and Ford, who were also operating under the Act, since neither one is “some other person” as that phrase is used in KRS 342.055 thereby making compensation provided by the Act his exclusive remedy. They rely on certain language in McEvilly v. L. E. Myers Co., 211 Ky. 31, 276 S.W. 1068. The rule there expressed has been aften applied where a workman is injured by a fellow-employee and we believe it was intended to be so limited. Here, although Evans was employed by the Commonwealth to insure compliance with the contract, his work was not such an integral part of the repaving operation as to make him a fellow-employee of appellants. Dulaney v. Sebastian’s Adm’r, 239 Ky. 577, 39 S.W.2d 1000.

The final question we shall determine is whether the trial court erred in directing a verdict in favor of Trico. The evidence with respect to Trico shows that it not only had no agent or employee at the jobsite but that its status, as well as Crone’s, was that of an independent contractor. Courier Journal & Louisville Times Co. v. Akers, 295 Ky. 745, 175 S.W.2d 350. We find no error in this ruling.

In view of these conclusions we find it unnecessary to decide other questions raised and consequently they are specifically .reserved.

The judgment against appellants is reversed with directions to set it aside and to grant them a new trial.