Missouri, O. & G. Ry. Co. v. West

Opinion by GALBRAITH, C. This was an action for personal injuries received by the defendant in error while engaged in moving piles to bé used in the construction of a bridge on the plaintiff in error’s right of way. The defendant in error alleged in the petition that he was working for the Missouri, Oklahoma & Gulf Railway Company, and that he was injured through the carelessness of a fellow employee of said company. The railroad company answered, denying liability, and that the defendant in error was working for it; and also pleaded the affirmative defense of independent contractor, alleging that the construction of the road, including the building of its bridges, was let to an independent contractor, namely, the William Kenefeck Company, and that the railroad company had nothing to do with the employment of laborers or control over them in the performance of their work in the construction of its roadbed, or the bridges across the streams on its right of way; that the William Kenefeck Company let the contract for gradina: the roadbed to Hoffman & Co. and Hoffman & Co. let the contract for building the bridges to E. L. Webster; that the defendant in error, West, as well as the fellow employee, by whose carelessness he claims to have been injured, were each employed by one Roberts, the foreman of E. L. Webster, who had the contract for the construction of the bridges; that the work of constructing the roadbed and bridges was not inherently dangerous, and was performed by an independent contractor, and the railroad' company had no management, direction, or control over the laborers employed by such contractor, and was not *523 responsible for their conduct or. liable in damages on account of their negligence; that it only checked up the work to see that it complied with the plans and specifications prepared by its chief engineer. Upon the issues formed by the pleadings, the case was submitted to the court and a jury. A verdict was returned for the defendant in error in the sum of $2,000. From the judgment rendered upon this verdict, the railroad appeals. One error assigned and argued is that the trial court erred in sustaining an objection to the admission in evidence of a copy of the contract ■ between the Missouri, Oklahoma & Gulf Railway Company and the William Kenefeck Company, offered in support of the defense of independent contractor, set up in the answer. It appears from the record that this defense was set out in an amended answer filed on the day the cause "was called for trial, and that up until that time the answer included only a general denial. This testimony was offered by the witness E. R. Jones, who was attorney for, and secretary of, the Missouri, Oklahoma & Gulf Railway Company, who, after identifying the copy of the contract offered in evidence, stated that the original contract had been in his possession a few days prior to that time, when he delivered it to Mr. De War, also an officer of the company, expecting it to be returned to him; that he or De War was the proper custodian of the original contract, and that it was kept either at the witness’ office at Muskogee, or at Mr. De War’s office at Kansas City, Mo.; that before leaving Muskogee for Coalgate to attend this trial he had made diligent search for the original contract and was unable to find it; that he then communicated with Mr. De War’s office and caused diligent, but fruitless, search to be made there; that he had requested *524 that the same, if found, be forwarded to Coalgate by mail, and confidently expected to receive same in time to produce it at the-trial, but had not received the original, and was unable to produce it, and therefore offered a true copy as the best available evidence at his. command. Objection was made to the offer as not the best evidence, and sustained; the trial court holding that the showing was not sufficient' to bring the offer within the rule admitting secondary evidence, that it did not appear, that the original contract was lost, that it was merely misplaced and was not available entirely through the carelessness or negligence of the agents of the railroad company, and therefore it was not in a position to invoke the rule admitting copies or secondary evidence. ¡We do not think that this was error. The Supreme Court of the United States says' as to the rule admitting secondary evidence: “If the original is lost, by acqident, and no fault imputable to the party, it is sufficient.” (Renner v. Bank, 9 Wheat. 581, 6 L. Ed. 169.) In 17 Cyc. 518, the rule is stated: “Where the writing containing or constituting the primary evidence of the fact to be proved is satisfactorily shown to have been lost or destroyed, without the fault of the party. desiring to prove the fact, secondary evidence becomes admissible.” The weakness in the showing made to account for the absence of the original contract was its failure to show that the plaintiff in error was without fault". It appeared therefrom that the original’was in its possession and under its control, and was not available at the time and place of the trial; owing to its carelessness and negligence wholly. *525 When the ruling was made sustaining the objection to the copy, the attorneys for the company then asked for a continuance on the ground of surprise. This application was denied. This ruling is also assigned as •error. The application for a continuance was addressed to the sound discretion of the trial judge. While it seems to us that we would have been inclined to grant the application, if we had been in the place of the trial judge, .still he was in a better position to pass upon the question than we are upon the record. We cannot, therefore, say that the denial of a continuance was an abuse of dist-•cretion. Again, error is assigned that the court refused to instruct the jury on the law of independent contractor, an issue which, it is alleged, was raised by the pleadings and the evidence. The court did not cover this issue in any of its instructions to the jury and refused requested instructions concerning the issue. This issue was raised by the pleadings, but there was no competent testimony admitted during the trial that tended to support it, and for that reason it was not an issue for submission to the jury, and no instruction thereon was proper or permissible. The contract, which it is claimed would have proved the contention of the company on this issue, was excluded and not admitted in evidence. West testified that he was working for the Missouri, Oklahoma & Gulf Railway Company, that one Bill Roberts hired him, and that E. L. Webster issued the time checks to him, and the railroad company paid them. Roberts testified that he hired West, and' that he himself was in the employment of Webster, and that West was under the control of himself and Webster; and nobody else had any power to direct or control his actions while at work; that Webster *526 paid Rim. Webster testified that he had a contract for the construction of the bridges on the Missouri, Oklahoma & Gulf Railway Company’s lines; that his contract was under Hoffman & Co.; that he paid West by time checks; and that these checks were paid by Hoffman & Co. and charged to Webster’s account. The testimony further shows that Hoffman & Co. were contractors under the William Kenefeck Company. What relation the William Kenefeck Company sustained to the railroad company does not .appear. The William Kenefeck Company may have been the railroad company’s alter ego, as contended in the argument on behalf of the defendant in error, and therefore liable for the negligence of the employees of E. L. Webster. The defense of independent contractor was made by the railroad company, and the law imposed upon it the burden of establishing this defense by competent evidence. This it failed to do. For this reason it was not error ,for the court to refuse to submit this issue to the jury. We therefore recommend that the judgment appealed from be affirmed, and that the former opinion filed herein be withdrawn, and this one substituted therefor. By the Court: It is so ordered.