Boatman v. Superior Outdoor Advertising Co.

• Decision Date: 30 June 1972
• Docket Number: No. 9178,9178
• Citation: 482 S.W.2d 743
• Court: Missouri Court of Appeals
• Parties: Bruce Lee BOATMAN, Claimant-Respondent, v. SUPERIOR OUTDOOR ADVERTISING COMPANY, Incorporated, Employer-Appellant, and Aetna Casualty & Surety Company, Insurer-Appellant.

Page 743

482 S.W.2d 743

Bruce Lee BOATMAN, Claimant-Respondent, v. SUPERIOR OUTDOOR ADVERTISING COMPANY, Incorporated, Employer-Appellant, and Aetna Casualty & Surety Company, Insurer-Appellant.

No. 9178.

Missouri Court of Appeals, Springfield District.

June 30, 1972.

John B. Newberry, Springfield, for claimant-respondent.

Paul D. Rittershouse, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for appellants.

TITUS, Chief Judge.

Question: Was claimant, a 'contract painter' for Superior Outdoor Advertising Company, Incorporated, on or about Superior's 'premises' at the time he was injured so as to render Superior liable to him as its statutory employee for workmen's compensation benefits? § 287.040, subd. 1 RSMo 1969, V. A.M.S. ¹

Erecting, painting, repainting and maintaining outdoor signboards owned by it were operations within the usual business of Superior. In the conduct of its business, Superior regularly engaged the services of 'two, sometimes three . . . contract painters' who were paid 'so much a square foot' for the signs they repainted. These painters provided their own transportation, furnished all the ladders, walking planks, brushes, paint, and other items needed in the performance of their tasks they worked at hours of their own choosing. When a sign needed repainting, Superior assigned a painter to a particular signboard and paid for his services when he submitted a photograph as proof that the work was completed.

Harold Woelfel owned real estate 18 miles west of Springfield which was occupied, in part, by Cobb's Restaurant. Superior agreed that upon being paid 'so much a month' by Mr. Woelfel, it would erect and maintain upon his property a sign advertising the restaurant. The sign was erected in a field 'two or three hundred feet from the business.' Superior claimed no ownership or leasehold interest in the real estate where the sign was erected, and considered its only right 'to use the land that the sign was located on (was) whenever Mr. Woelfel wanted repair or painting lone to his sign,' which was 'maybe ever (sic) six months.'

Claimant, as a 'contract painter' on the terms above described, had repainted some six or seven signs for Superior before he was directed to repaint the Cobb's Restaurant sign. In the process of repainting this sign, the ladders and walking plank slipped causing claimant to fall to the ground and be injured. Successive awards in claimant's favor were entered by the Division of Workmen's Compensation and the Industrial Commission of Missouri. The latter award was affirmed by the circuit court, and Superior has now appealed to this tribunal (§ 287.490 RSMo 1969, V.A.M.S.) contending that claimant was not a statutory employee of Superior because the accident did not occur on its 'premises' as contemplated by § 287.040, subd. 1, supra. ²

As used in § 287.040, subd. 1, the term 'premises' is not restricted to the permanent site of the statutory employer's business nor limited to property owned or leased by him, but contemplates any place under the exclusive control of the statutory employer where his usual business is being carried on or conducted. Sargent v. Clements, 337 Mo. 1127, 1134, 88 S.W.2d 174, 178(5); Dawson v. Clark Oil and Refining Corporation, Mo.App., 410 S.W.2d 353, 356; Nagle v. Drew, Mo.App., 409 S.W.2d 264, 266(1); Johnson v. Simpson Oil Company, Mo.App., 394 S.W.2d 91, 95(2); Crabtree v. Ramsey, Mo.App., 115 S.W.2d 14, 16(1). 'Premises' include locations that temporarily may be under the exclusive control of the statutory employer by virtue of the work being done (Raef v. Stock-Hartis, Inc., Mo.App., 416 S.W.2d 201, 208), and 'exclusive control' indicates such a control in the 'premises' by the statutory employer that the general public does not have an equal right to use them along with the employer and the independent contractor. Offutt v. Travelers Insurance Company, Mo.App., 437 S.W.2d 127, 130; Baker v. Iowa-Missouri Walnut Log Co., Mo.App., 270 S.W.2d 73, 76(5). If the alleged statutory employer is an invitee upon the premises under the same terms extended others to enter upon the premises for business purposes, it cannot be said that the premises are under the employer's exclusive control. State ex rel. Potashnick v. Fulbright, 350 Mo. 858, 863, 169 S.W.2d 59, 62.

The contract between Superior and Mr. Woelfel obligated Superior to repaint and repair Cobb's Restaurant sign whenever the owner indicated such services were required. At the times Superior undertook to comply, it would, of necessity, have implied...