Carman v. Central Western Dairies

• Decision Date: 29 March 1933
• Docket Number: 5231
• Citation: 58 S.W.2d 781
• Parties: CARMAN v. CENTRAL WESTERN DAIRIES, Inc., et al.
• Court: Missouri Court of Appeals

58 S.W.2d 781

CARMAN v. CENTRAL WESTERN DAIRIES, Inc., et al.

No. 5231

Court of Appeals of Missouri, Springfield

March 29, 1933

Appeal from Circuit Court, Jasper County. Grant Emmerson, Judge.

“ Not to be published in State Reports.”

Proceeding under the Workmen’s Compensation Law by A N. Carman, alleged employee, opposed by the Central Western Dairies, Inc., alleged employer, and the Aetna Life Insurance Company, insurer. From a judgment affirming an award of the Workmen’s Compensation Commission denying compensation alleged employee appeals.

Affirmed.

Stanley P. Clay and George V. Farris, both of Joplin, for appellant.

Ray Bond, of Joplin, for respondents.

OPINION

SMITH, Judge.

This is an appeal from a judgment of the circuit court affirming a finding of the Workmen’s Compensation Commission denying compensation to the plaintiff in his claim for injuries to himself, while, as he alleged, he was in the employ of defendant Central Western Dairies, Inc.

There is but little controversy over the facts in the case. It was admitted that the employer had actual knowledge of the injury and that a claim for compensation was filed within the time prescribed by law. There was practically no question as to the extent of the plaintiff’s injury.

The plaintiff presents the case to us upon two contentions, namely:

First. That, as a matter of law, under the evidence before the commission, the plaintiff was an employee of the respondent dairy company, and that the finding of the commission that he was an independent contractor was erroneous.

Second. That, even if the plaintiff was an independent contractor at the time he sustained his alleged injuries, he is entitled to compensation by virtue of the provisions of section 3308, Revised Statutes of Missouri 1929 (Mo. St. Ann. § 3308).

The facts in this case are very simple. The plaintiff was injured on July 1, 1931, when his Chevrolet truck, driven by himself, collided with a passenger train of the Missouri Pacific Railroad Company at a point where a public highway, over which plaintiff was driving, crosses the tracks of said railroad company at a grade, near the town of Jasper in Jasper county, Mo. In due time the claim was heard before Referee Luke of the Compensation Commission. At this hearing the testimony showed that at the time plaintiff sustained the injuries complained of he was transporting about twenty-five cans of cream from the plant of defendant Central Western Dairies, Inc., in Joplin, to a dry milk plant located at Jasper, under an arrangement made with the dairy company whereby he was to receive $4.50 for this service. The truck being used by plaintiff belonged to him, and he had made similar trips of this character for the dairy company at previous times, not only to Jasper, Mo., but to other points occasionally going as far as St. Louis. The price to be paid for making each of these trips was agreed upon before the trip was made. On prior trips made by plaintiff to Jasper under this arrangement, the dairy company had paid him at the rate of 10 cents per hundred pounds carried, which amounted to about $5 for the trip, but on this particular trip a price of $4.50 was agreed upon. Although the dairy company used plaintiff and his truck frequently for making trips of this character, he was not on the pay roll of the company and was not required to be at the plant of the dairy company during any regular hours. Whenever the dairy company wanted to arrange with plaintiff to make a trip of this character, the company either telephoned him or got in touch with him personally or found him on the streets. On the occasion of this trip, he was located at the Market Square in Joplin. If the service contracted for involved the carrying of milk or other merchandise from the dairy company’s plant to some other point, such merchandise would be loaded at the dairy company’s plant under the direction of its superintendent and with the aid of the dairy company’s employees. On making this trip and similar trips, the plaintiff was not under or subject to the control or instructions of the dairy company relative to the route he should travel or the time during which the service would be performed; the plaintiff selected his own route and each time he got an order to make a trip of this kind it constituted a separate and particular job. The only requirement of the contract, in each instance, was that the merchandise should be delivered at the point desired, without the exercise of any control over the plaintiff by the dairy company as to the means or route adopted or time when done.

The testimony further disclosed that on each morning (the injuries complained of in this case having been sustained on an afternoon) the plaintiff, using his own truck, would call on a number of farmers in Jasper and Newton counties for the purchase of milk and delivery to the dairy company’s plant in Joplin. He had several such routes. The procedure followed relative to these milk routes was that the plaintiff would gather the milk and deliver it to the dairy company’s plant that the dairy company would pay the farmers for their milk, deducting from the purchase price, however, at the rate of 25 cents per 100...