Bernat v. Star-Chronicle Pub. Co.

• Decision Date: 04 June 1935
• Docket Number: No. 23528.,23528.
• Citation: 84 S.W.2d 429
• Parties: BERNAT v. STAR-CHRONICLE PUB. CO. et al.
• Court: Missouri Court of Appeals

84 S.W.2d 429

BERNAT v. STAR-CHRONICLE PUB. CO. et al.

No. 23528.

St. Louis Court of Appeals. Missouri.

June 4, 1935.

As Modified on Denial of Rehearing July 16, 1935.

Appeal from Circuit Court, Montgomery County; W. C. Hughes, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Henry Bernat opposed by the Star-Chronicle Publishing Company, and the Pulitzer Publishing Company, employers, and the Hartford Accident & Indemnity Company and the Ocean Accident & Guaranty Corporation, insurers. From a judgment of the circuit court reversing a decision of the commission denying compensation, the employers and insurers appeal.

Reversed and remanded, with directions.

Lashly, Lashly & Miller, of St. Louis, for appellants Star-Chronicle Pub. Company and Hartford Accident & Indemnity Co.

J. N. Hassett, R. W. Johnson, and V. L. Turner, all of St. Louis, for appellants Pulitzer Pub. Co. and Ocean Accident & Guaranty Corporation.

N. Murry Edwards, of St. Louis, and William Barton, of Jonesburg, for respondent.

BENNICK, Commissioner.

This case arises under the Workmen's Compensation Law (sections 3299-3376, R. S. 1929, Mo. St. Ann. §§ 3299-3376, pp. 8229-8294), the appeal being by the alleged employers and their insurers from the judgment of the circuit court of Montgomery county reversing the award of the commission denying compensation, and remanding the cause to the commission for a rehearing.

The case turns upon the question of whether the relationship of employer and employee existed between claimant, a newsboy or news dealer, and the publishers of the papers he sold and distributed. The commission made an affirmative finding that he was not an employee within the purview of the act, and therefore not entitled to compensation, while the lower court held, in effect, that the relationship of employer and employee appeared from the undisputed facts in the case as a matter of law. No other reason is now assigned why the claimant is not entitled to an award, at least as against one, if not against both, of the alleged employers; and so the case comes to us to determine the propriety of the commission's denial of compensation upon the ground assigned by it as the basis for its holding.

The claimant, Henry Bernat, was but eleven years of age at the time of his accident on June 5, 1933. He resides at High Hill, in Montgomery county, Mo., a village of some 250 inhabitants, which is situated on the line of the Western division of the Wabash Railway Company. About May 1, 1933, he undertook the sale and delivery in High Hill of the daily publications of the alleged employers, Star-Chronicle Publishing Company and Pulitzer Publishing Company, both of which have their plants in the city of St. Louis, where they publish, respectively, the St. Louis Star-Times and the St. Louis Post-Dispatch. According to the arrangements existing between claimant and the publishing companies, the bundles of papers consigned to him would be sent him daily on one of the trains of the Wabash which was scheduled to arrive at High Hill at about 4 o'clock in the afternoon. He would meet the train and receive his bundles of papers, and then proceed to distribute copies to his regular customers and to sell extra copies to such occasional purchasers as he might obtain. On the day in question, while on the station grounds of the railway company where his bundles of papers had been thrown, claimant attempted to cut the string or cord around one of the bundles with his knife, and while so engaged the knife was caused to fly upwards, the blade piercing his left eyeball and producing an injury which has resulted in industrial blindness in that eye.

Claimant himself testified, and the commission found, that he was engaged in cutting the string around the bundle of Posts when injured, though there was other evidence which, if believed, would have warranted a finding that he was attempting to open the larger bundle of Stars. Were the case happily one for an award of compensation to be made, the definite identification of the bundle upon which claimant was employed at the moment of his injury would undoubtedly be of prime importance, but inasmuch as compensation must unfortunately be denied, as we shall presently show, upon the ground that he was not an employee of either of the publishing companies within the contemplation of the act, it obviously becomes of no particular consequence whether his injury was received while handling the papers of the one or the other of them.

It appears that without any prior communication with either of the publishing companies, claimant had purchased the paper route in High Hill from another lad who had been operating it for some time, paying him a consideration of $1.50 for the transfer. In the course of a day or so thereafter representatives of both the Post and the Star came to High Hill to consult with claimant and his family, and as of May 1, 1933, drew up separate written contracts for the claimant to sign; his father joining with him in the execution of the contract with the Post. It could hardly be argued that those contracts were themselves of any binding force as against an infant contracting party, though they are nevertheless not without their value in the case as tending to evidence what the actual relations between claimant and the publishing companies were.

Though differently worded, the contracts were both of the same general tenor and effect. In the contract with the Post, claimant was styled "news dealer and circulator," while in the contract with the Star he was referred to as "agent." With the Post he agreed to act as "news dealer and circulator" for at least three months; to devote his earnest endeavor to the creation and establishment of a regular sale and demand for the Post-Dispatch; and prior to giving up the business, to give the Pulitzer Publishing Company 30 days' notice, and to endeavor to secure a successor. With the Star he agreed to act as "agent" for a period of at least two months, and before giving up the agency to give the company at least two weeks' notice, and to try to secure a satisfactory person to take his place.

With both companies he agreed to pay all bills by the tenth of each month at the regular prevailing wholesale rate for papers furnished him during the preceding month, and to deliver papers to subscribers promptly on their arrival each day, charging therefor at the regular rate established by the company.

He was further required to keep a list of the subscribers to each of the papers, said lists to be the property of the respective companies or to be furnished the companies upon the termination of claimant's connection with the business, and in no event to be turned over to any one else without the consent of the respective companies.

The Post specifically reserved the right to supply or sell to as many news dealers in High Hill as it might desire, and also to annul the agreement, without notice, should any of its conditions be violated. Finally it was provided in both contracts that should claimant fail in any of the conditions expressed therein or in any other way fail to conduct the business to the entire satisfaction of the companies, then the said companies should have the right to discontinue supplying him with papers, as the contract with the Post expressed it, or to deprive him of the list of subscribers and appoint another dealer in his stead, as the agreement with the Star recited.

Each contract was accompanied by a bond executed by adults of the community, and conditioned upon the payment to the companies by the obligors of the amounts owing by claimant in the event that he failed to settle with the companies according to the terms of the respective agreements.

Claimant testified that he usually received seventeen copies of the Star and four of the Post; and, as has been heretofore indicated, it appears that there were certain subscribers to whom he delivered one or the other of the papers every day, in addition to which he went around the streets endeavoring to sell such extra papers as he might have in his possession. Certain of his regular customers might and often would...