Cline v. Carthage Crushed Limestone Co.

• Decision Date: 10 December 1973
• Docket Number: No. 57290,No. 2,57290,2
• Citation: 504 S.W.2d 102
• Parties: Raymond W. CLINE, Respondent, v. CARTHAGE CRUSHED LIMESTONE COMAPNY, Appellant
• Court: Missouri Supreme Court

Page 102

504 S.W.2d 102

Raymond W. CLINE, Respondent, v. CARTHAGE CRUSHED LIMESTONE COMAPNY, Appellant.

No. 57290.

Supreme Court of Missouri, Division No. 2.

Dec. 10, 1973.

Motion for Rehearing or to Transfer to Court en Banc Denied

Jan. 14, 1974.

Henry G. Eager, John J. Kitchin, Kansas City, Donald W. Kennedy, Nevada, for respondent; Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, of counsel.

Karl W. Blanchard, Herbert Van Fleet, Joplin, for appellant; Blanchard, Van Fleet, Robertson & Dermott, Joplin, of counsel.

HOUSER, Commissioner.

Raymond W. Cline sued Carthage Crushed Limestone Company, a Corporation, for $250,000 damages for personal injuries sustained as a result of the negligence of CCL while plaintiff was doing mechanical work on a limestone pulverizing machine in CCL's plant in Jasper County. Following a jury verdict of $150,000 CCL appealed to this Court on September 3, 1971.

Plaintiff and several regular employees of CCL, assigned to the job to help plaintiff, installed a new 800-pound shaft and bearings in a hammer mill. While testing to see if the shaft and bearings were properly installed and running cool plaintiff reached over to bring his hand down to feel of a bearing, at which time he was struck by a rapidly revolving 40-inch wrench which had been attached to the shaft by one of the regular employees of CCL while the shaft was stationary, and which the employee forgot to remove before the machinery was started up. Plaintiff was unaware that the wrench had been attached to the shaft. The wrench, revolving at 1800 r.p.m. or 213.6 m.p.h., was invisible.

I. Employee or Independent Contractor?

CCL's principal point on appeal is that plaintiff's sole and exclusive remedy is under the Workmen's Compensation Law, Chapter 287, RSMo 1959, V.A.M.S., because plaintiff was a regular employee of CCL; but if he was an independent contractor and not a regular employee he was a statutory employee of CCL under § 287.040(1), RSMo 1959, V.A.M.S., because he was injured while working about the premises of CCL, doing work alleged to be in the usual course of the business of CCL. Plaintiff claims that he was neither a regular nor a statutory employee at the time and therefore he may maintain this common law action for negligence.

Whether at the time of his injury plaintiff was an employee of CCL was submitted to the jury under Instruction No. 8 and whether plaintiff, as an independent contractor working about the premises of CCL, was injured while doing work which was an operation of the usual business there carried on by CCL was submitted by Instruction No. 6. These issues were decided adversely to CCL.

This Court has previously applied the tests laid down in the Restatement of Agency 2d, § 220, p. 485, in determining whether a questioned relationship is that of master and servant or employer and independent contractor. Dean v. Young, 396 S.W.2d 549, 553 (Mo.1965); Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58, 61(3--5) (1937). We accept those standards in deciding this appeal, and give a brief rescript of the evidence relating to each statement of the Restatement criteria:

'(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control.

'(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

'(a) the extent of control which, by the agreement, the master may exercise over the details of the work; * * *.'

According to plaintiff, when CCL wanted something made or installed the general manager and plant engineer, Mr. Workizer, would prepare a blueprint, draw a sketch, or lay it out and describe generally what was wanted, and plaintiff would 'build it from there.' Sometimes plaintiff designed and 'figured it out himself.' '(H)ow to weld it and put it together, that's mine.' There was nobody with plaintiff during the performance of the work telling him how to do it; he did it 'on his own.' Plaintiff stated, 'I was an independent, I was on my own, individual.' On the hammer mill job plaintiff was in charge and personally responsible; it was up to him to get the hammer mill back in operation; no one was given instructions about this installation other than plaintiff. Mr. Russow, CCL's general superintendent, was not in charge of plaintiff on this installation, although Russow was present from time to time during the installation. Employees Bryant and Maggard were working under Russow and the latter was their 'boss.' It was plaintiff, not Russow, who adjusted and 'okayed' the bearings. On this job plaintiff took the lead and controlled the operation. Plaintiff testified, 'That was my baby to see that them bearings were put in and adjusted. * * * This installation was up to me to see that was done right.'

On the other hand, Mr. Workizer testified that he ordinarily directed the details of plaintiff's work; that while plaintiff was 'not the kind that needed constant supervision,' nevertheless 'one working for you needs some supervision.' Mr. Workizer conceded that while he would not turn an installation over to plaintiff 'lock, stock and barrel' he did not tell Cline how to build the chutes, ductwork, etc., 'didn't tell him to go into detail on a lot of things.'

'(b) (W)hether or not the one employed is engaged in a distinct occupation or business; * * *.'

In 1943 plaintiff, having acquired experience as a welder in the employment of others, went into business for himself in Carthage. In 1945 he had a 30 30 foot shop building built. He called the business 'Cline's Welding.' He is the owner. His wife keeps the books. It has been his sole livelihood since he opened the business. He kept supplies of steel at his shop and in a 24 24 foot shed built east of the shop. He equipped his shop with the tools of his trade, including a forge, anvil, hand tools, lathe, drill press, pullers and bearing knockers, pipe dies, tap and die sets, socket sets, set of crescent wrenches, numerous box and end wrenches, hammers, chisels, Skilsaw, various sized electric drills, portable hand grinders, several chains of different sizes and lengths, snatch blocks and boomers, acetylene torches and gauges, a 250 amp. stationary welder, electric hoist, hydraulic jacks, floor jacks, ratchet hoist, rope falls, puller jacks, a Chevrolet pickup truck, and a 2-ton Chevrolet truck with crane, boom and winch, with 300 amp. gas-driven portable welder. Since 1945 he has been listed in the Carthage telephone book as 'Cline's Welding,' both in the black and white listings and in the yellow classified section. He kept records of jobs. His wife made statements and tax returns from the books. Billings were made by statements sent out the first of the month. Plaintiff's letterhead bore the words 'Cline's Welding.' His records show that during the nine years preceding trial Cline's Welding did work for 114 different companies or individuals other than CCL and its affiliate Carthage Marble Company, including one order from the state highway department for 300 snow plows. Plaintiff's work at CCL consisted of welding, repairing, making and building different pieces of equipment.

'(c) (T)he kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; * * *.'

While this was the first time the hammer mill (new in 1965) broke down and there had been no previous occasion to replace the shaft and adjust the bearings, this type of work in the past had been done by regular employees of CCL on the old and smaller hammer mill. On this occasion the work was done at the instance but not under the direction of the employer. It was done under the direction of plaintiff without supervision by, albeit with the assistance of, regular employees of CCL. Gene Patrick, a welder employed by CCL, was primarily concerned with repairing and maintaining CCL equipment, including building up hammers in the hammer mill. Plaintiff taught Patrick how to do this. Other work of this nature around the plant was customarily done by Patrick under the direction of his superiors, but this type of work was often done by plaintiff, a specialist, without supervision.

'(d) (T)he skill required in the particular occupation; * * *.'

Plaintiff customarily performed a number of tasks for CCL which plainly required considerable skill and training, such as building up hammers, making repairs on a variety of installations, working on the fork lift trucks, conveyor, dust collector, separator and the new building, and working on the vibrator table, loader, the 'Euclids' and the drill truck at Marble. Mr. Workizer testified that plaintiff was more than an ordinary welder; that he did more than 'just welding pieces of steel together'; that he used his mechanical knowhow; that he was 'a very responsible individual' upon whom 'you could rely to do a decent job, an excellent job,' and that Mr. Workizer 'had particular confidence in his capabilities.' Installing a new shaft in the hammer mill and adjusting the bearings is a job 'in which you have to know what you are doing' or the bearings will burn up.

'(e) (W)hether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; * * *.'

Plaintiff supplied his own instrumentalities and tools. He seldom used CCL equipment, and on the few occasions when he used CCL's gasoline for his welder he paid CCL for it. On the day in question plaintiff used his own 20-ton jacks to lift and reset the motor; used his winch truck to lift the 800-pound shaft, and personally constructed a special gauge to set the bearings properly. Plaintiff supplied the jacks and the winch truck, without which the job could not have been accomplished....