Crabtree v. Ramsey, 5955.

• Decision Date: 25 March 1938
• Docket Number: No. 5955.,5955.
• Parties: CRABTREE v. RAMSEY et al.
• Court: Missouri Court of Appeals

115 S.W.2d 14

CRABTREE v. RAMSEY et al.

No. 5955.

Springfield Court of Appeals. Missouri.

March 25, 1938.

Rehearing Denied April 14, 1938.

Appeal from Circuit Court, Texas County; W. E. Barton, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by J. W. Crabtree, as administrator of the estate of Ada Crabtree, deceased, against John Ramsey and another, copartners, and the American Mutual Liability Insurance Company, for an award for the death of the deceased's husband. The action was originally instituted by the deceased. From a judgment of the circuit court affirming the award of the Commission in favor of claimant, the defendants appeal.

Affirmed.

Lyon Anderson and Wayne Ely, both of St. Louis, for appellants.

John P. Moberly and David E. Impey, both of Houston, for respondent.

FULBRIGHT, Judge.

This action was instituted by Ada Crabtree filing her claim for compensation before the Workmen's Compensation Commission to secure an award for the death of her husband, Fred Crabtree. The commission made an award in favor of claimant. After the award was made, and pending an appeal to the circuit court, the claimant died, and the cause was revived in the name of Joe W. Crabtree, administrator of her estate. The circuit court affirmed the award of the commission, and an appeal to this court followed in due course.

There were several issues before the commission for its adjudication, but only one is before this court, that is: Were the premises where the deceased was killed the premises of Ramsey and Nichols where their usual course of business was carried on within the meaning of section 3308(a) R.S.Mo.1929, Mo.St.Ann. § 3308(a), p. 8242?

It was agreed and stipulated before the referee that Fred Crabtree was cutting timber on or about January 10, 1936, in Texas county, and received certain injuries while so engaged and died therefrom on said date; that the alleged employers herein had actual notice of the alleged accident and that claim for compensation was filed within time prescribed by law; and that the American Mutual Liability Insurance Company carried all compensation insurance upon Ramsey and Nichols, the alleged employers in this case.

The evidence discloses that Ramsey and Nichols were engaged in the manufacture of staves, with their mill located at Mountain Grove. In order to secure timber for the conduct of this business, Ramsey and Nichols purchased from J. W. Moorman certain timber, standing and growing on the lands of the said J. W. Moorman, about thirty miles from their mill. The timber contract recited, among other things, that J. W. Moorman, in consideration of the sum of $200, "granted, sold, conveyed and delivered unto the parties of the second part all the white oak timber and its species now standing, being and growing on the above described lands, suitable for the manufacture of stave bolts, said timber to be cut and removed by the parties of the second part within a period of twelve months. * * * It is further agreed and understood that the parties of the second part during the life of this contract are to have full, free and uninterrupted egress and ingress in, over and upon said lands for the purpose of cutting and removing said timber, and on, over and across said lands for the purpose of transporting or hauling said timber and bolts, provided that parties of the second part shall not enter any cultivated fields without first obtaining the consent of the party of the first part. It is further agreed that whenever said timber has been cut and removed or the time limit hereinabove mentioned, has expired, the party of the first part shall re-enter into full possession of said lands without process of law."

This contract was one of the stock forms of timber contracts that Ramsey and Nichols used regularly in the conduct of their business. The timber rights under the contract were never assigned and the owner of the fee had nothing to do with the cutting of the timber.

Prior to the making of the timber contract, J. C. Gladden looked over the Moorman timber and attempted to buy it "for the Mountain Grove Stave Company" for less than $200, which was the price Moorman asked. He left with the intention of finding out whether the price would be acceptable or not, and later came back with an employee of Ramsey and Nichols, a son of Mr. Ramsey, and after looking over the timber told Moorman that "they" would take it. Moorman was asked: "Did he say who? A. Well, Nichols and Ramsey; this young Ramsey was the one I talked to; he was to decide if he'd take it." F. E. Nichols executed the contract with Moorman on behalf of Ramsey and Nichols and issued him their check for the sum of $200. The evidence on the part of appellants tended to show that although Ramsey and Nichols took the title to the Moorman timber in their own names, they in fact bought it for Gladden, advancing the $200 purchase price which Gladden was unable to do, and took title in the name of Ramsey and Nichols merely as security for the advancement, claiming that the timber belonged to Gladden and that he had it cut and sold it to them.

Gladden had an agreement with Ramsey and Nichols to cut the timber into bolts and place them where the crew could get to them at 6 cents per foot when Ramsey and Nichols did the hauling, or 12 cents per foot when the bolts were delivered at their mill at Mountain Grove. He employed Fred Crabtree and others to help him cut and remove the timber. Nichols testified: "To make staves you have to have the raw material of growing white oak timber, and that was what we...