Cross v. Crabtree

• Decision Date: 03 December 1962
• Docket Number: No. 23728,23728
• Citation: 364 S.W.2d 61
• Parties: Mary P. CROSS (Claimant), Respondent, v. Kenneth CRABTREE, and American Motorists Insurance Company (Employer and Insurer), Appellants.
• Court: Missouri Court of Appeals

Page 61

364 S.W.2d 61

Mary P. CROSS (Claimant), Respondent, v. Kenneth CRABTREE, and American Motorists Insurance Company (Employer and Insurer), Appellants.

No. 23728.

Kansas City Court of Appeals, Missouri.

Dec. 3, 1962.

Herman M. Swafford, Alder & Morrison, Kansas City, for appellants.

James W. Benjamin and Thomas E. Sims, Kansas City, for respondent.

HUNTER, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of Jackson County at Kansas City affirming the award of the Industrial Commission of Missouri in favor of claimant-respondent, Mary P. Cross, allowing the maximum death benefits and burial expenses totaling $15,500 under the Workmen's Compensation Act, of which sum only $2,771.43 had accrued at the time the present appeal was taken on June 18, 1962.

Since the amount in actual dispute for jurisdictional purposes is determined at the time an appeal is taken, this court has jurisdiction of the appeal. Snowbarger v. M. F. A. Central Cooperative, Mo.Sup., 317 S.W.2d 390; Section 477.040 RSMo 1959, V.A.M.S.

On this appeal only two basic questions are presented--namely, (1) whether there is sufficient competent and substantial evidence to sustain the award of the Industrial Commission that decedent was a statutory employee of Kenneth Crabtree; and (2) whether the finding of the Industrial Commission that the decedent's annual earnings were determinable under Section 287.250(3) RSMo 1959, was erroneous.

The Industrial Commission's findings are:

'We find from all of the evidence that the deceased employee, William B. Cross, was a statutory employee of Kenneth Crabtree on June 29, 1961; that he sustained an accident on said date arising out of and in the course of the said employment; and that as a result of said accident he sustained injuries which resulted in his death on the same day. Schwandt v. Witte, Mo.Sup., 346 S.W.2d 50; Simpson v. New Madrid Stave Co., 227 Mo.App. 331, 52 S.W.2d 615; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174; Baker v. Iowa-Missouri Walnut Log Co., Mo.App., 270 S.W.2d 73; Montgomery v. Mine LaMotte Corp., Mo.Sup., 304 S.W.2d 885; Pruitt v. Harker, 328 Mo. 1200, 4o S.W.2d 769.

'Respondent, Kenneth Crabtree, was a building contractor engaged in the erection of buildings, particularly houses, in the Kansas City area. During the latter part of June, 1961, he was building a house at 3200 Sunrise Slope, Independence, Missouri. It is not claimed that he was exempt from liability under the act by virtue of the provisions of Section 287.040(3) RSMo 1959. E. g. Bobbit v. Ehlers, Mo.App., 131 S.W.2d 900.

'The deceased, William B. Cross, Gerald A. Hughes, Edward E. Davidson, Hugh Thompson and one Riddle, were roofers engaged in roofing the house next door to 3200 Sunrise Slope. These men roofed houses for contractors in the Kansas City area. The group had no formal agreement between themselves but operated by rather clearly defined custom. Any member of the group could secure a roofing job from a contractor. All would then join laying the roof. On completion of the job the contractor would pay the man with whom he had dealt for the whole job. The amount so paid was determined by the number of squares of roofing laid in completing the job. The proceeds were then divided among the several workmen, each being paid pro tanto in accordance with the number of squares each had laid.

'On June 28, 1961, Crabtree came next door where the group was roofing. He talked to Gerald A. Hughes and asked him when they could start roofing the house he was erecting at 3200 Sunrise Slope. There is some evidence that he also talked to Cross, although Crabtree denied this. In any event, Cross (and possibly Hugh Thompson) commenced roofing the Crabtree house the same afternoon. The next day, the rest of the group joined them on the job. On that day (June 29, 1961), Cross fell from the roof and sustained fatal injuries.

'Crabtree maintains that he may not be deemed a statutory employer under Section 287.050(1), RSMo 1959, because the work being done by Cross was not being done under contract. In this we do not agree. The statute does not specify the form of the contract that must be used. Simpson v. New Madrid Stave Co., supra, 52 S.W.2d l. c. 616. We are of the opinion that the contract may be implied as well as expressed. We are unable to believe that an experienced contractor, one who had used this group before, was unaware of the customs of the trade in which he had so long been engaged.

'We find and believe that Cross, Hughes, Davidson, Thompson, et al were joint venturers; that they were subcontractors on the Crabtree job; and that respondent Crabtree was their statutory employer under the provisions of Section 287.040(1), RSMo 1959.

'We further find that Mary P. Cross, widow, was the sole, total dependent of William B. Cross at the time of his death.

'We find, further, that the employee had not been employed by the same employer continuously during the year next proceeding (sic) the injury. In accordance with Section 287.250(3) RSMo 1950, and the stipulation of the parties (Tr. pp 62, 63), we find that the annual earnings of persons in the same class in the same employment and same location was $5,000.00 per year; that by reason thereof the employee's average weekly wage is determined to be $96.15; and that the dependent widow is, therefore, entitled to death benefits of $45.00 per week for 333.33 weeks.'

Appellants' first contention in substance is that claimant failed to prove either a contractual or statutory relationship between decedent and Kenneth Crabtree in order to support an employment status. Appellants deny there is any evidence sufficient to support a finding that decedent either individually or as a member of the working group had been employed either directly or indirectly by Crabtree to work on the house from which he fell to his death.

Our State Constitution, Article V, section 22, V.A.M.S., requires findings of the Industrial Commission must be supported by 'competent and substantial evidence upon the whole record.' Hence, the rule is that the review of a compensation case is of the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the commission, and to determine whether the commission's findings are supported by competent and substantial evidence, and are not contrary to the overwhelming weight of the evidence. Brown v. Anthony Manufacturing Company, Mo.Sup., en Banc, 311 S.W.2d 23; Snowbarger v. M. F. A. Central Co-Operative, Mo.Sup., 349 S.W.2d 224. It is the duty of the reviewing court to set aside the commission's findings only if they are not so supported or if they are contrary to the overwhelming weight of the evidence. Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61.

What does the whole record disclose to support the commission's finding decedent was employed by Crabtree to help shingle the roof of the house from which he fell? Edward Eugene Davidson testified that he, Gerald Hughes, Hugh Thompson, Rolley, Riddle and the deceased were shingling the roof of the house next to the house Crabtree was building. They had done Crabtree's work before. He came by the job and talked to Gerald Hughes in Davidson's presence and to Davidson. The other mentioned men including decedent were also on the roof working but according to Davidson were apparently not near enough to participate in this conversation. 'He (Crabtree) * * * wanted to know when we could start it, he wanted us to shingle it.' * * * 'Well, Gerald said to Mr. Hughes, he quoted back that he could get it started the next day. He would send somebody up there.' A short time later that day Hugh Thompson and decedent went over to the Crabtree house and started to work on it. The rest of the group that same day finished the house they had been roofing, and the next morning all of them, including decedent, worked on the roofing of the Crabtree house. It was while decedent was shingling the Crabtree house that he fell.

On cross-examination Davidson was asked, 'And he and Mr. Hughes discussed, I suppose, who would come over there and work for him? A. He wanted to know when we could all come and start his job, in so many words. * * * At this time it was your understanding he wanted all four of you over there. A. Oh, definitely, yes.' Davidson did not know whether Crabtree also spoke directly to decedent about the roofing work or who may have told decedent to work on the Crabtree house.

Gerald Hughes testified that on the day in question Bill (decedent) was closest to Crabtree when he came over to get them to get them to work on his roof. Hughes stated, '* * * I believe he (Crabtree) seen Bill on this particular day. * * * Well, he (Bill) came over the roof and said he would like to go ahead over there and go to work. Q. You mean Crabtree? A. No, Bill come to me. We were trying to get one job done and he wanted to know if he could go over and start him and I said it didn't make any difference to me. He (Bill) said Crabtree wanted to get it started. * * * When Crabtree first came over on the job next to his job, whom did he talk to? * * * I think pretty sure it was Bill Cross * * * because he was working on the side nearest to the garage at the time.'

Kenneth Crabtree testified that he was a building contractor and had been all his life. He would complete about 14 houses this year, 1901. He has no direct employees and employs subcontractors to shingle his houses. He did not know the specific individuals shingling the roof of his house. He had arranged the shingling by contacting Mr. Hughes more than a week before the accident. The house next door was constructed considerably ahead of his house and there was no roofing work being done next door at any time his house was being built. The roofing next door had already been done. He stated that he (Crabtree) was the general contractor on the house at 3217 Sunrise...