Bobbitt v. Ehlers

• Decision Date: 03 October 1939
• Docket Number: No. 25131.,25131.
• Citation: 131 S.W.2d 900
• Parties: BOBBITT v. EHLERS et al.
• Court: Missouri Court of Appeals

131 S.W.2d 900

BOBBITT v. EHLERS et al.

No. 25131.

St. Louis Court of Appeals. Missouri.

October 3, 1939.

Appeal from Circuit Court, St. Louis County; Peter T. Barrett, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Law by Charles Bobbitt, employee, opposed by William Ehlers, Jr., and Edward A. Wagner, employers. From a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of the employee, the employers appeal.

Reversed and remanded, with directions for entry of judgment reversing award.

Bryan, Williams, Cave & McPheeters, of St. Louis, for appellants.

Albert L. Felberbaum, of St. Louis, for respondent.

BENNICK, Commissioner.

This is a proceeding under the workmen's compensation law, Secs. 3299-3376, R.S.Mo. 1929, Mo.St.Ann. §§ 3299-3376, pp. 8229-8294, in which Charles Bobbitt, the injured employee, seeks to be awarded compensation from William Ehlers, Jr., and Edward A. Wagner as his statutory employers. After a hearing the commission made an award to the employee as prayed, and from the judgment of the circuit court affirming the same, the alleged employers have perfected their appeal to this court in the regular course.

The sole question in the case is whether the relation of statutory employer and employee existed between Bobbitt and the two appellants. If so, they were liable to him for compensation, but if not, then the award must be reversed.

Bobbitt was injured upon premises known as 3939 Canterbury Drive, in Pasadena Hills, St. Louis County, which premises were owned jointly by Ehlers, Wagner, Carl G. Stifel, and Frazier-Davis Construction Company, a corporation, and upon which the four owners were engaged in the erection of a building to be used for residential purposes. The same owners had a total of four or five similar jobs under construction at the time, the financing for all of which was handled by the Carl G. Stifel Realty Company. At the completion of a job, the purpose was to sell the improved real estate to any purchaser that might be available, and whatever profit was made in the transaction was to be divided in equal parts among the four owners.

The record shows that the owners had no general contract with any one for the erection of the building, but instead either purchased the materials and hired the necessary workmen on their own account, or else let out special contracts for distinct parts of the work, such as the laying of the bricks and the flooring, the putting on of the roof, the doing of the painting and plastering, and the installation of the electric wiring, the plumbing, and the heating system.

In letting such contracts the four owners ordinarily signed by their individual names, though in two or three instances they employed the name "Modern Construction Company", which was the name of a corporation that had formerly existed and of which Wagner had been the president. However it was shown that such corporation had long since ceased to exist as a corporate entity, and when its name was used in the construction work in question, it was only used as a matter of convenience and because it was still well known to the trade.

Among the contractors specially engaged by the owners for the doing of distinct parts of the work was one Warzeniak, a bricklaying contractor, who was given a written contract for the brickwork. Bobbitt, the claimant, was an employee of Warzeniak, and was so employed by him on the job when his accidental injury was received on June 5, 1936. Warzeniak's contract, incidentally, while submitted to Wagner, purported to have been accepted by the Modern Construction Company, by Ehlers as owner...