Crevisour v. Hendrix

• Decision Date: 27 November 1939
• Parties: EMMA CREVISOUR AND REVA DORIS CREVISOUR, APPELLANTS v. J. W. HENDRIX, RESPONDENT
• Court: Missouri Court of Appeals

136 S.W.2d 404

234 Mo.App. 1012

EMMA CREVISOUR AND REVA DORIS CREVISOUR, APPELLANTS v. J. W. HENDRIX, RESPONDENT

Court of Appeals of Missouri, Springfield

November 27, 1939

Rehearing Denied February 9, 1940.

Appeal from the Circuit Court of New Madrid Co.--Hon. Louis H Schult, Judge.

AFFIRMED.

Judgment affirmed.

R. F Baynes for appellants.

Ward & Reeves for respondent.

TATLOW, P. J. Smith and Fulbright, JJ., concur.

OPINION

TATLOW, P. J.

This is a Workmen's Compensation case, in which the Commission made an award to the appellants and the Circuit Court setting aside the award, the appellants have duly appealed to this court.

There is no question concerning the regularity of the proceedings or of the appeal, or the amount of the award of $ 2307. It is conceded that Harry Crevisour was in the respondent's employ and was killed on the 15th day of November, 1937, in an accident arising out of and in the course of his employment; that the appellants are his wife and daughter and were wholly dependent upon him. It is further conceded that neither the respondent nor the deceased ever elected to come under the Workmen's Compensation Act nor had either filed with the Commission a written notice that he elected to reject the act. Actual knowledge of the accident by the respondent was admitted. The sole and only question in the case is whether J. W. Hendrix, the respondent, was a "major" employer so as to come within the Workmen's Compensation Act, or a "minor" employer so as not to come within the act. The facts are undisputed and so conceded by both parties.

The only evidence in the case is the testimony of the employer and his time book, showing the number of workers, their names and the hours worked, a copy of which is plaintiffs' Exhibit 1.

The respondent and employer testified:

"My business is contracting, house moving, house building. . . . My business operations extend throughout southeast Missouri and northeast Arkansas. . . .

". . . I believe I am safe to tell you that two men is all that is depending on my work; I haven't got my (any regular) crew, I pick a little crew up to do whatever job it might be: If I have a particular job I employ a particular number of men required to do it, and if I have a smaller job then I don't employ so many men and I never know today what kind of a job I may have tomorrow; so that my manner of employment depends entirely on the kind of a job I might get: and I pick up whoever I can get at that time and place: I don't of course, have any regular men employed that remain on my pay roll continuously except the two: and when I run out of work they are not on my pay roll: I retain them more regularly than others on account of their experience and having worked for me for a period of time.

". . . I think two days in a year I worked above ten men, now, more than that I had more than ten men for one or more hours, but I think two days in a year that I worked ten men, for a whole day, I mean for a whole day.

"Q. Of course, now if tomorrow you got a contract necessitating the employment of twenty-five men you would have that many men employed, wouldn't you? A. Well, I am not that sized contractor, I don't know if it was just something that bobbed up for one or two days I suppose I'd put them on, but I don't recall ever working that many men.

"Q. If you had a contract for moving a house or building a house or something in line of your work that required the employment of twelve or fifteen men you'd employ the number of men necessary to do the job? A. Yes, and as soon as I got through I'd let them go: unless I got another job, another contract: and that has been true with my many operations: I engaged in house moving and house building, and if you want to, I do lots of concrete work, but the concrete is in connection with house building; in that connection, this list of employees showing the number of hours, and the days they worked in this tabulation, it includes all of employees, the concrete business, moving and carpenter business: everything, all of it: I have no men employed around my place as caretakers: only cleaning up place, one once in a while: I am really doubting if I did employ any men around my place cleaning it up in the fall of 1937: I had a job on a hotel at Kennett sometime ago: it was before the accident: and I think that I could look that up, I think that was one of the places where the largest crew of men I had, possibly twelve or fifteen men: I think I had twelve or fifteen men on that job that worked about three days: I don't believe that was moved the year before this occured.

"MR. BAYNES: Q. I notice here, I could--I don't know if this would be any help to you, on this week ending July 3, 1937, you seemed to have a rather large list of names on that. Would looking at that refresh your recollection?

". . . THE WITNESS: That was the time--Let's see. I was working by the bay, that was not a crew of my men at all. Dorris Motor Company, that was day work: that was on a job at Portageville not a contract job at all: Mr. Dorris at Hayti paid the men: I worked for wages too: The Pharr job was a man by the name of Parr, he lives in Memphis and he owns some land: the job was near Mariana: that was a day job, that was not my job, I did not pay the employees at work on that job; I was foreman hired by the day: I did not have a contract for that work: I paid the men in this way: Mr. Pharr would come out each week and get the time and would hand me the money, it was put in my hand and I delivered the money to the men just the same as I give the instructions, I handed out the checks so far as that was concerned, but it was Mr. Dorris' money on the other job; and it was just the same as on the other job: I was just an employee myself: I have a contract made: it is for Mr. Rone out south of Portageville: this book has shown here which I have identified, which includes the names of the men I would pick up locally, I tried to get it to include everything that was ever on the time book: everybody I paid any salary to or that worked on my jobs: I think if you will look through these books you will see it from one hour up; of course, as I said, the number of men employed depended on the size of the job at the time.

"CROSS-EXAMINATION BY MR. REEVES:

"With reference to these men that I did employ, say my job would run up as high as ten or eleven or twelve men, when I did not employ the same I had been employing but nearly always different men: in some instances here in my book I see that on two days I believe it is two, it runs up as high as sixteen men: they were men I picked up for that job: that particular job: when I had, say, more than ten men employed, eleven, twelve, thirteen, fourteen, fifteen or sixteen, those men that run up high for these few jobs, I did not undertake and did not get the same men that I had previously employed but just anybody I could pick up: the two men I stated that I had regularly employed were within a year before the accident: The early year, E. T. Wren and Harry Crevisiour, deceased: I went after them first, then later Wren dropped out and a man by the name of Farrar and he became my regular man: Now, then, I have two regular men, Farmer and Hutchins: that was after the accident: They were working before the accident too."

Exhibit 1, which is the weekly time book, gives the number of employees, their names, and the hours they worked each week, covering the period from the week ending November 21, 1936 to November 20, 1937. The date appearing at the top of the page represents the end of the week.

According to the time book there was no time during the period covered by the evidence when more than ten employees worked for the respondent for as long as five and one-half consecutive work days. The nearest approach to it is the week ending December 6, 1936, and only seven men worked consecutively for the week. They were:

E. T. Wren

6 days

C. Wyatt

6 days

P. Kimes

6 days

J. Davis

6 days

E. Durbin

6 days

H. Crevisiour

6 days

R. L. Bandy

6 days

The others, working less than five and one-half consecutive work days, were as follows:

Lex Estes

2 days

C. Morgan

5 days

Lee Roberts

5 days

Sam Ezell

4 days

Sam Gresham

4 days

Arch Capen

4 days

E. Hudgens

4 days

F. Adams

3 days

B. Richardson

1 day

Bush

3 days

H. Turner

1 day

While the testimony of the employer (offered by the appellants) is not as definite as it might be, his testimony would indicate that, during the week of December 6, 1936, he was not an employer at all, but was only a foreman for a Mr. Parr. The most that can be said is that his testimony does not definitely establish that the men were not employed by him as their employer during that week.

The next week in which more than ten men were employed, was the week ending December 20, 1936. During this week there was two consecutive days on which twelve men were employed. During each of the other days of this week there were less than ten men employed.

The next week in which more than ten men were employed, was the week ending July 3, 1937. During this week there was one day on which fifteen men were employed. During each of the other days of this week there were less than ten men employed. He testified that he was only acting as foreman during this week.

During the week ending September 4, 1937, there were twelve men employed on Thursday and Friday, for ten hours each. On Saturday eleven men were employed for five hours each and one man for one and one-half hours.

During the week ending September 11, 1937, there were eleven men employed on Thursday. There were never more than ten men employed on any other day during that week.

During the entire period from November 14, 1936, to Novem...