Sehrt v. Howard

SCHOTTKY, J.

L. V. Howard has appealed from a judgment in favor of Robert L. Sehrt in an action brought by Sehrt to recover damages for injuries allegedly received because of the negligence of Howard.

Howard was an independent contractor who hauled hay for the Riverbank Oil Company at the rate of $4.00 per ton. If Howard needed assistance Riverbank furnished a helper in which case the rate Howard received was $3.20 per ton. The difference went to the helper. In addition another 10 per cent was withheld, which, according to the testimony, was to cover social security taxes and a sum for workmen’s com

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pensation insurance. Sehrt prior to the accident usually worked with Howard. He was paid by Riverbank. Howard never gave Sehrt a check nor did he keep any employment records. Howard did not carry a workmen’s compensation policy in his own name. Riverbank told Sehrt where to work. Howard could discharge Sehrt, in that he could refuse to have Sehrt work with him, but only Riverbank could finally terminate Sehrt’s employment.

The accident in which Sehrt was injured occurred on July 20, 1956, at a dairy barn, while Sehrt was unloading hay from Howard’s truck, which was described as a “bobtail” truck with a 15-foot bed, of which some 7 feet were beyond the rear wheels. Howard had backed the truck partially into the barn where the hay was to be delivered. He did not back it all the way into the barn because of a rise in the cement floor of the barn which caused the sixth or top tier of hay to touch the barn door and prevented the truck from going back any farther. Howard testified he then turned off the ignition, set the hand brake all the way, and put the gearshift lever in reverse. After the truck was parked Howard loosened the ropes which held the load in place, and Sehrt climbed on top of the truck and started to toss the top tier of baled hay to the floor of the barn. Sehrt testified that he was standing on the fifth tier of hay removing the sixth tier; that he went to pick up a bale of hay and as he was going to turn around and toss the bale off the truck the truck moved ahead; that the bale of hay upon which he was standing went out from under him; and that as he turned toward the rear of the truck Howard told him to jump, but he went off the truck with the bale and struck the floor. Sehrt sustained a severe fracture of the right heel bone which eventually required fusion of the ankle joint. There was also testimony that the truck did not move, but this merely created a conflict in the evidence for the jury to resolve.