Davis v. Moller

• Decision Date: 08 November 1934
• Docket Number: No. 22935.,22935.
• Citation: 75 S.W.2d 610
• Parties: DAVIS v. MOLLER.
• Court: Missouri Court of Appeals

75 S.W.2d 610

DAVIS v. MOLLER.

No. 22935.

St. Louis Court of Appeals. Missouri.

November 8, 1934.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Act by Luevenie Davis to recover compensation for death of her husband, Thomas Davis, opposed by Florence G. Moller, alleged employer. From a judgment reversing the award of the Workmen's Compensation Commission and remanding the cause, defendant, Moller, appeals.

Judgment reversed with directions.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis, for appellant.

Henry G. Morris, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action brought by plaintiff before the Missouri Workmen's Compensation Commission to recover compensation for the death of her husband, Thomas Davis, resulting from an accident which occurred on September 10, 1932. The commission found that defendant, Moller, was not employer of Davis, and denied compensation. Plaintiff appealed to the circuit court. That court found that defendant, Moller, was employer of Davis, and reversed the award of the commission and remanded the cause. Defendant, Moller, appeals.

The finding of the commission that defendant was not employer of Davis was obviously made on a finding that one Joseph Harper, who was under contract with appellant to make certain repairs and alterations on the building where Davis was at work when the accident which caused his death occurred, was an independent contractor. Plaintiff insists here that there is no competent evidence in the record to support such a finding, and thus justifies the court in reversing the award of the commission.

On August 2, 1932, appellant, being the owner of a one-story brick building situated at the southeast corner of Twenty-Second and Pine streets in St. Louis, leased said building to Joseph Harper to be used for the storage of automobiles and as a welding shop, for a term of two years commencing on the 1st day of September, 1932, and ending on the 31st day of August, 1934, at a yearly rental of $1,080, payable in monthly installments of $90 each.

At the time of the execution of the lease, appellant entered into a collateral contract with the lessee, which was in the form of a letter directed to the lessee and signed by appellant, as follows:

"In consideration of you executing lease on premises at the Southeast corner of 22nd and Pine street, I agree that the following repairs and alterations shall be made.

"Install one toilet and sink; put in broken window glass and sash locks; repair hole in roof and holes in brick wall, repair rear door and install a door in the front of said building, so same will be suitable to drive in an automobile; all the improvements to be made immediately upon the execution of said lease.

"The total cost of these repairs and alterations shall not exceed Three Hundred and Fifty ($350.00) Dollars. They shall be made by the Lessee's carpenter and the cost thereof shall be advanced by the Lessee.

"Upon completion of said repairs and alterations in a manner satisfactory to both Lessor and Lessee and the furnishing of proper receipts showing payment therefor by the Lessee, the Lessor shall give credit on the rent for such cost to the Lessee."

Joseph Harper had no carpenter or other building mechanic in his employ at the time of the execution of the lease and contract. He intended to conduct a welding business in the leased building, and for that reason it was necessary that the building should have a door wide enough to permit the passage of automobiles into and out of the building. The doorway in the building at the time of the execution of the lease was insufficient in width to permit automobiles to be driven through it. For that reason the appellant and the lessee agreed that this doorway should be taken out and one large doorway made in the building to permit the passage of automobiles through it.

On September 2, 1932, the lessee, Harper, entered into a contract with Clarence Crowe, whereby the latter agreed to tear out the brick surrounding the doorways and to place a steel I-beam over the doorway for support, and thus widen the entrance sufficiently to permit automobiles to be driven through it. It was agreed at the time that all materials for such work should be furnished by Harper. On September 9, 1932, in the afternoon, Crowe and his brother removed a part of the brick from the doorway. Shortly after they began this work, Thomas Davis, respondent's husband, came by the building and asked Crowe about working for him on this job. Crowe replied that he would put him to work the next morning enlarging this doorway. Thereupon Davis told Crowe that he would be down the next morning and bring another man with him to work on the job. On the following morning Davis came to work and brought with him another man named Stanfield. They went to work, helping to tear out the doorway. Shortly thereafter Crowe left the place where the work was being done for...