Allen v. Jackson County Savings & Loan Ass'n

• Decision Date: 07 March 1938
• Citation: 115 S.W.2d 7,232 Mo.App. 1098
• Parties: WOODROW ALLEN, APPELLANT, v. JACKSON COUNTY SAVINGS & LOAN ASSOCIATION, RESPONDENT
• Court: Kansas Court of Appeals

115 S.W.2d 7

232 Mo.App. 1098

WOODROW ALLEN, APPELLANT, v. JACKSON COUNTY SAVINGS & LOAN ASSOCIATION, RESPONDENT

Court of Appeals of Missouri, Kansas City

March 7, 1938

Appeal from the Circuit Court of Jackson County.--Hon. Daniel E Bird, Judge.

AFFIRMED.

Judgment affirmed.

Amos A Knoop for appellant.

Jacob L. Lorie for respondent.

SPERRY C. Campbell, C., concurs.

OPINION

SPERRY, C.

This case was instituted before the Missouri Workmen's Compensation Commission. The plaintiff on February 4, 1936, filed a claim for compensation on account of an accident arising out of his employment, and sustained by him on September 5, 1935. He named P. L. Gardner, doing business as Gardner Plumbing & Heating Company, and the Jackson County Savings & Loan Association, as his employers. An award was made in his favor by the commission awarding him $ 8.67 per week for 118 weeks for total disability, and $ 300.00 for disfigurement. From this award the Jackson County Savings & Loan Association appealed to the Circuit Court of Jackson County.

Gardner took no further action in the matter. The circuit court, on appeal, reversed the award made by the commission as against the Jackson County Savings & Loan Association; and from the judgment of the circuit court reversing the award of the commission the plaintiff appealed to this court.

The Jackson County Savings & Loan Association owned two pieces of residential rental property numbered 1702-1708 East 27th Street, Kansas City, Missouri. The properties were occupied by its tenants at the time of the injury to the plaintiff. It contracted with Gardner, doing business as Gardner Plumbing & Heating Company, for the installation of a new private water main from Highland Avenue at 27th Street to its properties at 1702-1708 East 27th Street. Gardner was to furnish the material and labor for laying the main and was to be paid $ 152.00 for the job.

Plaintiff was employed as a laborer by Gardner, and while so employed he was injured. Since the amount of the award is not in controversy it is unnecessary to set out evidence in connection with the nature of the extent of the injury. Under the view we take of the case it is unnecessary to set out evidence as to number of employees working for Gardner.

Neither Gardner nor the Jackson County Savings & Loan Association had any insurance. There is no evidence in the record that there was any existing water main to these houses, nor is there any evidence as to the business of the Jackson County Savings & Loan Association other than it owned these two houses and rented them out to tenants, and that it contracted with Gardner for this new water service.

The only question is whether or not Jackson County Savings & Loan Association is liable under the Workmen's Compensation Act.

The facts found by the commission, a synopsis of which we have set out above, are supported by the record and are binding on us. [Davis v. Moller, 75 S.W.2d 610, l. c. 611.] Those facts establish the further fact that Gardner was an independent contractor, which fact counsel for plaintiff orally admitted in the hearing before the commission.

We think determination of the liability of Jackson County Savings & Loan Association, hereinafter known as defendant, may be determined by construction of subsections (a) and (c), of Section 3308, Revised Statutes of Missouri 1929, which subsections are as follows:

"(a) 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, his subcontractors, and their employes, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.

"(c) The provisions of this section shall not apply to the owner of premises upon which improvements are being erected, demolished, altered or repaired by an independent contractor but such independent contractor shall be deemed to be the employer of the employes of his subcontractors and their subcontractors when employed on or about the premises where the principal contractor is doing work."

The construction of a water service to the property of defendants was an improvement to the property, because it was "work done or things built or placed upon land, rendering it more fit for use, and more capable of producing income." [C J. 308, note (a).] The...