Dixon v. General Grocery Co.

• Decision Date: 09 July 1956
• Docket Number: No. 2,No. 44913,44913,2
• Citation: 293 S.W.2d 415
• Parties: Charles DIXON, Respondent, v. GENERAL GROCERY COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 415

293 S.W.2d 415

Charles DIXON, Respondent, v. GENERAL GROCERY COMPANY, a Corporation, Appellant.

No. 44913.

Supreme Court of Missouri, Division No. 2.

July 9, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 10, 1956.

Byron G. Carpenter, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for appellant.

Cleo V. Barnhart and Robert D. Bransford, St. Louis, for respondent.

BOHLING, Commissioner.

Charles Dixon recovered a judgment for $11,000 for personal injuries against the General Grocery Company, a corporation. Defendant has appealed and alleges error in submitting plaintiff's case and in giving plaintiff's main instruction. No issue exists respecting the pleadings.

Plaintiff was an employee, a window washer, of the Aetna Window Cleaning Company, a corporation. On the morning of September 29, 1953, a clear day, the Aetna company instructed Charles Warner, another Aetna window cleaner, and plaintiff to wash the first and second floor windows of defendant's building. The building is located at the southwest corner of the intersection of Clark, an east-west street, and 8th street, St. Louis, Missouri. There was testimony for defendant that the Aetna company had been cleaning the windows on the first and second floors of defendant's building for 15 or 20 years; that defendant's general offices, where the employees worked at desks and performed bookkeeping, billing and other general office work, was on the second floor, and the windows were washed that the work might be better accomplished; that the several stories above the second floor were used as a warehouse, where defendant stored merchandise to fill orders, and the windows above the second floor were never washed.

Plaintiff and Warner arrived at defendant's building shortly before noon and started washing the second floor windows on the north or Clark street side. The windows are steel windows. Each window contains rectangular panes, having five panes horizontally and five panes vertically, the greater length being vertically. The window washers use a bucket of water, sponge the panes, beginning at the top, and then use a squeegee. The two window cleaners worked together. Warner would wash the inside panes while plaintiff, using a ladder for the second floor, would wash the outside panes. After finishing the second floor windows facing Clark street, they started working south on the windows facing 8th street.

There is a loading platform or dock on the 8th street side of defendant's building. The dock begins at the third window south of Clark street and extends for some distance southwardly along the side of the building. There is a canopy, sloping to the east, over the dock. The top of the canopy is about two feet above the second floor window sills. One witness 'guessed' there was about three feet of space between the canopy and the window. When plaintiff came to the canopy, he placed his ladder against it and went on top of the canopy with his bucket of water, sponge and squeegee, intending to walk along the canopy as his work proceeded. Plaintiff finished washing the three top rows of panes on the fourth window from Clark street and stepped off of the canopy onto the window sill preparatory to washing the lower panes when his foot slipped off of a slippery substance on the sill and he fell between the canopy and the building. He grabbed a brace supporting the canopy but could not maintain his grasp and fell to the concrete platform. Plaintiff sustained severe injuries to his left hand, right foot and his back. Additional facts will be developed in the course of the opinion.

Defendant contends that under Sec. 287.040 (statutory references are to RSMo 1949, V.A.M.S.), plaintiff was a statutory employee of defendant and under Sec. 287.120 may not maintain this action. Defendant also cites 1 Larson, Workmen's Compensation Law, 668, Sec. 45.31; Viselli v. Missouri Theatre Bldg. Corp., 361 Mo. 280, 234 S.W.2d 563, 567; Fox v. Fafnir Bearing Co., 107 Conn. 189, 139 A. 778, 779, 58 A.L.R. 861, and Kennedy v. J. D. Carson Co., Mo.App., 149 S.W.2d 424, 428.

Section 287.040 provides: 'Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in usual course of his business.' Section 287.120 makes the rights and remedies of the act exclusive.

At the time of plaintiff's injuries the Aetna company and defendant were qualified employers, with approved insurers, under the Workmen's Compensation Law. The Aetna company gave plaintiff his instructions, paid his wages, $2.00 an hour, deducting therefrom social security, withholding and city earnings taxes. He was never in the actual employ of defendant. Plaintiff filed a claim against the Aetna company under the Workmen's Compensation Law, which claim is still pending.

The Viselli case, supra [361 Mo. 280, 234 S.W.2d 566], involved a death claim under the Workmen's Compensation Law arising out of the fall of a window washer, the employee of an independent contractor, against the appellant corporation as a statutory employer. The appellant operated, managed and maintained a 12-story office building, and under a stipulation filed before the Commission appellant not only furnished window cleaning service to its tenants as "an operation of (its) usual business' and 'in the usual course of (its) business',' but specifically contracted with its tenants to do so. Consequently, it was held, 'under the stipulation and admitted fact, the window cleaning service was an integral and necessary part of the appellant's business, as the servicing of an elevator, by an independent contractor, was a necessary instrumentality in carrying on the business of a furniture store. Kennedy v. J. D. Carson Co., Mo.App., 149 S.W.2d 424, 428.'

The Viselli case discusses the Connecticut case of Fox v. Fafnir Bearing Co., supra. Fox, an employee of an independent contractor, was injured while washing the windows of a factory manufacturing ball bearings and was held a statutory employee of the manufacturer. The court pointed out that the statutory provision involved was one of the most difficult of the Workmen's Compensation Law to apply and that the decisions were not harmonious, stating [107 Conn. 189, 139 A. 779]: 'It [the application of the section] is in each case largely a question of degree and of fact.' (See the Viselli case, 234 S.W.2d 563.) In the Fox case the court considered window washing was not a 'process' in the manufacture of ball bearings, but that defendant's operation etc. of a factory for the manufacture and offices etc. for the marketing of its product was an essential part of defendant's "trade or business,' though not directly connected with any manufacturing process.'

Section 287.040, supra, is not as broad as some similar provisions of the law of sister states. It provides that an employer who has work done under contract 'which is an operation of the usual business which he there carries on' is a statutory employer of such contractor's employees. We said in State ex rel. Long-Hall Laundry & Dry Cleaning Co. v. Bland, 354 Mo. 97, 188 S.W.2d 838, 842: 'The statute declares the operation performed by the workmen must be a part of the usual business which 'he'--that is, the particular employer--carries on'; and, quoting Perrin v. American Theatrical Co., 352 Mo. 484, 488, 178 S.W.2d 332, 334: "If the work being done at the time of injury is not an operation of, or in the usual course of, the business which the employer customarily carries on upon his premises, but is only incidental, ancillary, or auxiliary thereto, then'--the contractor or his employee is not a statutory employee.' Roach v. Herz-Oakes Candy Co., 357 Mo. 1236, 212 S.W.2d 758, 762; Rucker v. Blanke Baer Extract & Preserving Co., Mo.App., 162 S.W.2d 345, 347[4, 5]; Settle v. Baldwin, 355 Mo. 336, 196 S.W.2d 299, 306; Cummings v. Union Quarry & Const. Co., 231 Mo.App. 1224, 87 S.W.2d 1039, 1041[3, 4]; Szofran v. Century Electric Co., Mo.App., 255 S.W.2d 443, 448; 150 A.L.R. 1214(V, VI); 105 A.L.R. 580(III); 58 A.L.R. 872(III); 17 A.L.R.2d 637.

Defendant does not attempt to establish that our course should be recharted. The contention is overruled.

Defendant states plaintiff may not recover because (1) plaintiff failed to establish actionable negligence--the breach of a duty owed a business invitee by an inviter, and also because (2) plaintiff was contributorily negligent as a matter of law.

The parties are agreed that plaintiff occupies the status of a business visitor or invitee. Roach v. Herz-Oakes Candy Co., supra; Streicher v. Mercantile Trust Co., Mo., 31 S.W.2d 1065, 1068.

'A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without excercising reasonable care (1) to make the condition reasonably safe, or (2) to give a warning adequate to enable them to avoid the harm * * *.' 2 Restatement, Torts, 938, Sec. 343; Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 162 S.W.2d 813, 818 ; Paubel v. Hitz, 339 Mo. 274, 96 S.W.2d 369, 370[3, 4]; 65 C.J.S., Negligence, Sec. 45 a, b, p. 521, 38 Am.Jur. 754, Sec. 96.

'The duty to keep premises safe for invitees applies only to defects or conditions which are in the nature of hidden dangers, traps, snares, pitfalls, and the like, in that t...