Blew v. Conner
| Decision Date | 12 October 1959 |
| Docket Number | No. 46898,46898 |
| Citation | 328 S.W.2d 626 |
| Parties | Elmo BLEW, Appellant, v. Albert F. CONNER and Mary W. Conner, and Hartford Accident and Indemnity Company, Respondents. |
| Court | Missouri Supreme Court |
Hess & Collins, Macon, for appellant.
James Glenn, Macon, for respondents Albert F. Conner and Mary W. Conner.
John S. Marsalek, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondent Hartford Accident & Indemnity Co.
This case, coming to the writer on reassignment, grew out of an occurrence on August 5, 1953, when plaintiff Elmo Blew was injured while he and others were in the process of reconstructing a dismantled barn in Macon County, Missouri. Plaintiff's injuries consisted of the loss of his left eye. He filed a claim for compensation with the Industrial Commission. A hearing before a referee resulted in an award in plaintiff's favor against Albert F. Conner and Mary W. Conner, his wife, employers, and the Hartford Accident and Indemnity Company as insurer. The award was for a total of $2,575.39. On appeal to the Commission, the award was affirmed. The case was appealed to the Circuit Court of Macon County. That court reversed the award on the theory that it was not supported by sufficient competent evidence. Thereafter, on appeal to the Kansas City Court of Appeals, that court affirmed the judgment of the circuit court in favor of the Hartford Accident and Indemnity Company but reversed that court as to the judgment in favor of the employers. The court directed the circuit court to remand the case to the Commission with directions to enter an award in favor of insurer and an award in favor of plaintiff Blew against the employers, Mr. and Mrs. Conner. See Blew v. Conner, Mo.App., 310 S.W.2d 294. On application of the employers, the case was ordered transferred to this court. The case is here as though an appeal had been taken direct to this court.
The questions presented for decision are: First, were the Conners major employers as defined in Sec. 287.050 RSMo 1949, V.A.M.S.? That is, did the Conners have more than ten regular employees under the provisions of Sec. 287.020, subsection 6, and Sec. 287.090, subsection 1(3)? (All statutory references herein are to RSMo 1949, unless otherwise noted.) Second, was plaintiff a casual employee? Third, was he employed as a farm laborer and therefore not protected by the Compensation Act under Sec. 287.090, subsection 1(2)? Fourth, if plaintiff was covered by the Compensation Act, is the insurer liable?
The parties all agree that plaintiff's injury arose out of and in the course of his employment. The facts as shown by the record may be stated as follows: Mr. and Mrs. Conner owned a farm in Macon County, Missouri. Ed Calvin was employed as farm manager. In July, 1953, a barn had burned on the Conner farm. A barn located a short distance from the farm had been purchased and, on August 5, 1953, plaintiff and five other men, including the farm manager Calvin, were engaged in dismantling and moving the barn purchased by the Conners to the Conner farm where it was to be reconstructed. In the course of this work, plaintiff was injured. It was shown that the task of taking down the barn and reconstructing it on the Conner farm would take about 30 days. Plaintiff had been doing carpentry work and was so engaged by the Conners.
The Conners lived in Peoria, Illinois. Mr. Conner owned a tavern but the license was in the name of Mrs. Conner. It may be assumed that this was a joint enterprise. Mr. Conner was also engaged in conducting an electrical shop in which two other persons were interested as partners. Mrs. Conner, so far as the record shows, had no interest in the electrical business. As to the number of employees in the tavern and the electrical shop, Mr. Conner's evidence is as follows:
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The tavern was located at 310 Walnut Street and the electrical shop at 308 Walnut Street in Peoria, Illinois. In determining the question of the number of employees, let us begin with plaintiff and those engaged in moving the barn. Conner testified that there were five or six. The record definitely shows that, excluding Calvin, the farm manager, there were five employees engaged for the one project only, that of dismantling, moving, and reconstructing the barn. So, the men, except for Calvin, were not farm laborers. They must be classified as laborers or carpenters performing a specific job. Calvin, however, must be classified as a farm laborer. This question was considered at length by the Kansas City Court of Appeals, 310 S.W.2d loc. cit. 298-301(9-11), (12). It would serve no useful purpose for us to discuss the matter at length. The Court of Appeals quoted from Peterson v. Farmers' State Bank of Eyota, 180 Minn. 40, 230 N.W. 124, where a rule was stated which we think may be applied to the question before us. Note what the Minnesota court said: Applying that rule to the facts of this case, we come up with the answer that the Conners had five employees, not farm laborers, and one farm laborer, Calvin. To the above five employees, we may add, without question, the five employees at the tavern in Illinois. It is the rule in this state that outstate employees may be included in determining whether an employer is a major or minor employer within the meaning of Sec. 287.050. See Larson on Workmen's Compensation Laws, Vol. 1, Sec. 52.34, p. 774, and Elsas v. Montgomery Elevator Company, 330 Mo. 596, 50 S.W.2d 130, loc. cit. 133, 134(3, 4), (5). The fact that the employees were not employed in the same business does not prevent the employees, if more than ten in number, from being within the Compensation Act. Harmon v. Rainey, Mo., 306 S.W.2d 469.
It is our opinion that the persons employed at the electrical shop may also be included. Conner testified that they were his employees and that, of course, was so as a matter of law. Conner, as a partner in the business, was liable to each employee for his wages or injuries negligently inflicted. These employees, under a liberal construction of the Compensation Act, must be included as employees of Mr. Conner. Brollier v. Van Alstine, 236 Mo.App. 1233, 163 S.W.2d 109, loc. cit. 112-114(3), (4), and authorities there cited. Sec. 287.020, subsection 1, reads in part: 'The word 'employee' as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, * * *.' We, therefore, rule that there were fifteen employees and hence plaintiff's claim for compensation cannot be denied on the theory that his employer was a minor employer as defined by Sec. 287.050, subsection 2. There are cases from other states which hold otherwise. See 99 C.J.S. Workmen's Compensation Sec. 42b, p. 229, paragraph headed 'Employees of another employer' where it is said, 'An employee of a partnership is not to be counted as an employee in the employment of an individual partner operating a business separate and distinct from the partnership business; * * *.' The case cited, Kalson v. Industrial Commission, 248 Wis. 393, 21 N.W.2d 644, supports the text. Our statute, Sec. 287.050, states that 'a 'major employer' shall mean an employer who has more than ten employees regularly employed.' It is our duty to construe the Compensation Act liberally and we have done so. Elsas v. Montgomery Elevator Company, 50 S.W.2d loc. cit. 134(6). In McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d 911, loc. cit. 913(3), this court (Division Two) said of Sec. 287.050, 'It is to be given its plain, unrestricted meaning.'
In the opinion of the Court of Appeals in this case, in construing Sec. 287.050, that court quoted from Harmon v. Rainey, 306 S.W.2d loc. cit. 471: 310 S.W.2d loc. cit. 302(14).
Let us suppose 'A' has a lumber business wherein he employs seven men. 'A' also has a drug business where he has eight employees. Under our rulings, all...
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