Cates v. Williamson

• Decision Date: 07 June 1938
• Docket Number: No. 24689.,24689.
• Parties: CATES v. WILLIAMSON et al.
• Court: Missouri Court of Appeals

117 S.W.2d 655

CATES v. WILLIAMSON et al.

No. 24689.

St. Louis Court of Appeals. Missouri.

June 7, 1938.

Appeal from Circuit Court, Cape Girardeau County; Frank Kelly, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Jeneva Cates, dependent widow of Jeff Cates, deceased employee, opposed by C. E. Williamson and E. C. Raines, employers. From a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of the dependent widow, the employers appeal.

Affirmed.

E. A. Mason, of Jackson, for appellants.

Rush H. Limbaugh, of Cape Girardeau, for respondent.

BECKER, Judge.

This is an appeal by alleged employers from a judgment affirming an award of the Compensation Commission in favor of Jeneva Cates, widow of Jeff Cates, deceased, an alleged employee.

It is here urged on appeal that the findings of the Commission and the circuit court were erroneous as a matter of law in that there was not sufficient competent evidence to support the finding that the deceased, Jeff Cates, was an employee of appellants.

Jeneva Cates, as the widow of Jeff Cates, on June 26, 1936, filed a claim for compensation based on the charge that her husband (Jeff Cates) was killed while cutting timber as an employee of C. E. Williamson and E. C. Raines, co-partners, operators of a stave mill at Millersville, and a heading mill at Whitewater, Cape Girardeau County, Missouri.

Williamson and Raines filed an answer before the Workmen's Compensation Commission in which they admitted the death of Jeff Cates by being struck by a falling tree, but denied that Cates was in their employ at the time of the accident, and alleged that Cates was cutting stave bolts from trees that he had felled as a mere volunteer and without their knowledge or consent.

The final award of the Commission held that Cates was an employee of Williamson and Raines at the time of the accident, and that the accident arose out of and in the course of his employment, and allowed claimant $133.65 for burial expenses, and a total death benefit of $963, and fixed the fee of claimant's attorney at $200.

We address ourselves to the question whether there was sufficient competent evidence adduced to support the finding and award of the Commission.

The record discloses that C. E. Williamson and E. C. Raines are co-partners doing business under the firm name of Williamson and Raines; that on January 1, 1936, the firm began the operation of a stave mill west of Millersville in Cape Girardeau County, Missouri. At the time that claimant's husband was killed, namely, June 5, 1936, Williamson and Raines had some forty men working in or in connection with this mill. As to the method of operation: Williamson and Raines bought white oak timber from various landowners in the vicinity of the mill, then they hired men to cut down such trees as they had bought and cut them into stave bolts. The bolts were then hauled to the mill where they were sawed into staves. It appears that Williamson had the responsibility of running the mill and Raines the operations with reference to the purchasing and cutting of the timber and hauling to the mill.

Cates and his wife lived in Arkansas where Cates had worked as a bolt cutter. Having been out of work for some time, in May, 1936, at the suggestion of his brother-in-law Harry Kitchen, an employee of Williamson and Raines, he came to Missouri and obtained a job at appellants' mill. He worked a part of two days and he was tried at various jobs in the mill but was found awkward and clumsy in operating machinery and the foreman of the mill discharged him because, as he testified, he was afraid that Cates "was going to get hurt." For this work at the mill Cates received a check for $2, dated May 23, 1936. The week beginning May 25, 1936, Cates began cutting timber with other men working for Williamson and Raines. These timber cutters worked in pairs and Cates worked one week with Rayford Bettigrew, a timber cutter employed by Williamson and Raines. The following week Cates paired up and worked with a man named Reeves, beginning on Tuesday of that week and worked until Friday up to two o'clock in the afternoon when a tree which they had cut, in falling, caused the death of Cates.

The timber cutters for Williamson and Raines worked in two groups or crews. Allen Moore was in charge of one of the crews of timber cutters and Stephen Skaggs was in charge of the other. Moore and Skaggs directed the men in their crew as to what trees were to be cut, and their duties included the scaling and culling of bolts that the men cut from the felled trees.

Raines testified that after Cates had worked at the mill "a few hours" he had him discharged; that the mill foreman fired him; and that so far as he knew he was not employed again; that on two occasions Cates, after he had been discharged from the mill, asked him for a job cutting timber; that on the first occasion he told Cates that he had all the bolt cutters he needed; that about two weeks prior to Cates' death Cates again asked him for a job cutting timber, saying that there were men in the woods without partners; that he told Cates he didn't need him. Raines further testified that he learned of Cates "being on the job the day he was killed, after his death."

Skaggs testified that he knew Cates; that Cates had asked him two or three times to give him a job cutting bolts; that he told Cates he would have to ask Mr. Raines; that "Raines did the hiring of timber cutters. The last time I told him he came back the next morning and said that Mr. Raines said for him to go to work. Then I let him go to work. I did not direct the method of work of the bolt cutters. I have no authority over them; just show them the trees and...