Auchley v. Zerr

• Decision Date: 04 November 1941
• Docket Number: No. 25883.,25883.
• Citation: 155 S.W.2d 275
• Parties: AUCHLEY v. ZERR et al.
• Court: Missouri Court of Appeals

155 S.W.2d 275

AUCHLEY v. ZERR et al.

No. 25883.

St. Louis Court of Appeals. Missouri.

November 4, 1941.

Rehearing Denied November 18, 1941.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Law by John M. Auchley, opposed by Frank Zerr and another, doing business as Zerr Bros., alleged employers, and the Hartford Accident & Indemnity Company, insurer. From a judgment reversing a final award of the Workmen's Compensation Commission which denied compensation, the alleged employers and insurer appeal.

Reversed and remanded with directions.

A. B. Lansing, K. A. Osborn, and Albert I. Graff, all of St. Louis, for appellants.

Francis R. Stout, of St. Louis, for respondent.

ANDERSON, Judge.

This is an appeal from a judgment of the Circuit Court of St. Charles County, which reversed a final award of the Workmen's Compensation Commission, in which award the Commission denied compensation, finding that respondent was not an employee of appellants, Frank Zerr and Martin Zerr.

The evidence adduced showed that during the early part of 1938, Reverend William Pezold, Pastor of St. Joseph's Church at Cottlesville, Missouri, decided to build a school and auditorium on his parish church grounds, and plans and specifications for that purpose were prepared and adopted. Frank Zerr and Martin Zerr, carpenter contractors doing business as Zerr Brothers, agreed to do the carpenter work on the project, according to the plans and specifications, for the sum of $2,100. Among other things, these plans and specifications provided: "Carpenter shall lay out the building on the lot for the Excavator and Concretors and bricklayer, set the necessary stakes and batter boards and give heights, lines, levels and measurements to concreter, bricklayer and other mechanics and see that all work is properly executed and correctly laid out and built up. Assist the bricklayer in setting and plumbing window and door frames, also in the setting of window sills, steel lintels, steel beams, etc."

Other portions of the work called for in the plans and specifications, such as brickwork, plastering, painting, plumbing and heating, were awarded to other contractors. Parishioners did the excavating and concrete mixing, donating their labor to the church. Claimant, one of the parishioners so donating his labor, was injured while mixing concrete, and the question presented to the Commission for decision was whether or not claimant was an employee of Zerr Brothers. A review of the testimony is here necessary:

Father Pezold testified that the parish needed a new school building, and to save on the project adopted a plan whereby the parish would supply the man power for the excavation work and concrete mixing. On a Sunday he asked the men of the parish to do this work, and each day 25 or 30 men responded. Zerr Brothers laid out the place with stakes, gave the proper lines, and showed how deep the excavation should go. After the excavating was completed, Zerr Brothers showed the men where to put the concrete. Mr. Auchley, the claimant, was one of the men who reported for this work. He received no wages for the work he did, but donated his services to the parish. At the time he was injured, the main excavating work had been finished, and the men were beginning to pour the concrete. While the first batch of concrete was being mixed, claimant was injured by the concrete mixer, which did not belong to Zerr Brothers, but had been borrowed from Seisnant Brothers by Father Pezold. Besides doing the carpenter work, Zerr Brothers would direct and supervise what the others were to do. They put the forms in and marked them so the men would know how much concrete to pour. No other contractors were on the building at the time, although Father Pezold had specifications for bricklayers, painters, plasterers, and for electric work, all of which were separate contracts, some oral and some written. He stated: "we had to supply the man power for this work, and they (Zerr Brothers) had the right to direct and supervise the work; as far as I saw, they did it to a certain extent."

Claimant testified that Father Pezold had asked for a bunch of men to come over and do the excavating, and as witness was out of work at the time, he went over there and worked. On Friday, April 22d, while the first batch of concrete was being mixed, he was injured. Frank Zerr was there at the time. Witness had been at work on the job since the previous Monday. He had seen Frank Zerr laying out lines and giving instructions where to dig.

The testimony showed that claimant was not paid anything, but was donating his labor to the church, as were each of the following witnesses, except Frank Zerr.

Emil J. Stoll testified that the Zerrs did not give him any orders with respect to the work, but Mr. Benskin did whenever witness would ask him. Witness asked him what to use, how much sand, how much gravel, and how much cement, and Benskin told him, and witness then went ahead and followed Benskin's directions. The evidence shows that Mr. Benskin was a carpenter and an employee of Zerr Brothers, and helped to lay out the lines and place forms.

Clarence Sonnelmenn testified that after they had run a few batches of concrete Frank Zerr told him to add more sand and less rock. This testimony was corroborated by the witness' brother Elmer Sonnelmenn.

Edgar Iffrig testified that while he was working on the job Frank Zerr told him where to put the concrete. Frank Mackinberg testified that while he worked on the job Frank Zerr was there, but gave him no orders or directions, and only showed him how high to pour the concrete. William Kreder testified that when the men caught up with the concrete pouring, they laid forms and helped to carry some parts over; that Ed Benskin told him where to place the parts. Casimer Arnold testified that he saw Frank Zerr around the school building and heard him give orders to pour concrete.

Frank Zerr, testifying on behalf of the appellants, stated that Zerr Brothers were to do the carpenter work and give lines and levels on the building, and the men of the parish were to follow them; that he had nothing to do with those men; that Emil J. Stoll, Clarence Sonnelmenn, Elmer Sonnelmenn, Edgar Iffrig, Frank Mackinberg, William Kreder, Casimer Arnold, and William Himmelsbach were not on the payroll of Zerr Bros.; that Ed Benskin was a carpenter who worked for Zerr Brothers, but was not a superintendent or foreman; that either witness or his brother had active charge of supervising the work under their contract; that sometimes the men would say, "Where will I put it?" and witness would say, "In that form or a certain place." That there were other contractors working there during the construction of the building.

On cross-examination he testified that he was familiar with the provision of the plans and specifications which provided that the "carpenter shall lay out the building on the lot for the excavator and concreters and bricklayer, set the necessary stakes and batter boards and give heights, lines, levels and measurements to concreter, bricklayer and other mechanics and see that all work is properly executed and correctly laid out and built up"; that he attempted to comply with that provision and laid out the building, set the necessary stakes and batter boards, and gave heights and lines and levels and measurements to the bricklayers and concreters, and saw that all the work was properly executed and correctly laid out and built up; that he was there part of the time during the excavating and checked up and saw that it was done properly; that he gave directions as to lines and levels; that the men would ask him where to put the concrete and he said, "There is...