Equity Mut. Ins. Co. v. Kroger Grocery & Baking Co.

• Decision Date: 07 October 1943
• Parties: Equity Mutual Life Insurance Company, a Corporation, Respondent, v. Kroger Grocery & Baking Company et al., Appellants
• Court: Kansas Court of Appeals

175 S.W.2d 153

238 Mo.App. 4

Equity Mutual Life Insurance Company, a Corporation, Respondent, v. Kroger Grocery & Baking Company et al., Appellants

Court of Appeals of Missouri, Kansas City

October 7, 1943

Appeal from Jackson Circuit Court; Hon. Allen C. Southern, Judge.

Reversed and remanded.

Rubey M. Hulen for Hermann Produce Exchange Cooperative Association.

Tom J. Stubbs for C. M. Bassman and Betty Bassman, doing business as Hermo Theater.

Hogsett Trippe, Depping & Houts for Kroger Grocery & Baking Company and Gasconade Power Company.

Mosman Rogers, Bell & Conrad for United Telephone Company and Herman Lumber Company.

(1) Defendants and Moerschel Products Company were not "joint employers" of Schultz, and, therefore, the court erred in decreeing and adjudging contribution between those parties. Sec. 3697, R. S. Mo. 1939. The defendants did not retain the right to direct and control Schultz, and, therefore, they were not employers of him. 39 C. J. 35; Rutherford v. Tobin Quarries Co., 336 Mo. 1171, 82 S.W.2d 919; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726, 729; Acker v. Koopman (Mo.), 50 S.W.2d 100; Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1; Schultz v. Moerschel Products Co., 142 S.W.2d 106, 109. There was no joint contract of employment. The employment of Schultz by each of the merchants was separate and several and not joint. Townsend v. Roof, 210 Mo.App. 293, 237 S.W. 189. Since there was no "joint" control of Schultz, the defendants cannot be held as "joint" employers. Western Metal Supply Co. v. Pillsbury, 172 Cal. 406, 156 P. 491; Bamberger Elec. R. R. Co. v. Industrial Commission of Utah, 203 P. 345. The employment of Schultz was concurrent and not joint. Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909. (2) Schultz was not engaged in any service for the defendants at the time of his injury. He was engaged in the special service of tending fires for Moerschel Products Company. In order to charge a master with responsibility for the act of his servant, the relation must be shown to exist at the very time of the injury and in respect to the very transaction out of which the injury arose. Acker v. Koopman, 50 S.W.2d 100; Vert v. Met. Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 255, 256; 39 C. J. 1268; 42 C. J. 1104; Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Miller v. Rice-Stix D. G. Co. (Mo. App.), 223 S.W. 437; Michael v. Pulliam (Mo. App.), 215 S.W. 763; Barlow v. Shawnee Inv. Co., 229 Mo.App. 51, 48 S.W.2d 35, 48; Lee v. Oreon E. & R. G. Scott Realty Co. (Mo. App.), 96 S.W.2d 652; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; 39 C. J. 1274. (3) Schultz was an independent contractor. Murray v. Union Ry. of N. Y. C., 127 N.E. 907; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Bert v. Met. Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252; Rutherford v. Tobin Quarries Co., 336 Mo. 1171, 82 S.W.2d 918; Standard Oil Co. v. Anderson, 212 U.S. 315, 29 S.Ct. 252, 254; Flori v. Dolph (Mo.), 192 S.W. 949. (4) The Statute of Limitations has run. Sec. 3727, R. S. Mo. 1939; Dewey v. Union Elec. Power & Light Co. (Mo. App.), 83 S.W.2d 203. (5) The judgment and decree is excessive. The defendants could not, in any event, be liable for more than one-fifty-seventh part of the compensation awarded. Sec. 6397, R. S. Mo. 1939; Walton v. Electric Service Co., 121 Kan. 480, 247 P. 846. Plaintiff is not entitled to recover contribution for any expenses paid out in investigating or defending the Schultz claim. 13 C. J. 827.

Julian E. Smith, Watson, Ess, Groner, Barnett & Whittaker, Carl E. Engass and Douglas Stripp for respondent.

(1) All appellants except Herman Lumber Company had notice of Schultz's claim and an opportunity to appear in and defend it. They are, therefore, bound by the judgment in that case as to all issues decided therein. K. C., M. & B. R. Co. v. Southern Ry. News Co., 151 Mo. 373, 52 S.W. 205; City of Columbia v. Malo, 217 S.W. 625; Schultz v. Moerschel Products Co., 142 S.W.2d 106. (2) It is clear that Schultz was employed in the joint service of appellants and Moerschel Products Company, within the meaning of Sec. 3697, R. S. Mo. 1939, and that appellants are obligated to contribute as therein provided. Demattai v. M., K. & T. Ry. Co., 139 S.W.2d 504; Rutherford v. Tobin Quarries Co., 336 Mo. 117, 82 S.W.2d 919; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Acker v. Koopman, 50 S.W.2d 100; Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1; Schultz v. Moerschel Products Co., supra; Grote v. Monward Realty Co., 232 Mo.App. 189, 96 S.W.2d 660; Sargent v. A. B. Knowlson Co., 224 Mich. 686, 195 N.W. 810; Page Engineering Co. v. Industrial Comm., 322 Ill. 60, 152 N.E. 483. (3) There is no foundation for appellants' denial that Schultz was engaged in any service for them at the time of his injury. Sargent v. A. B. Knowlson Co., 224 Mich. 686, 195 N.W. 810. (4) The record fails to present the slightest basis for holding that Schultz was an independent contractor. See argument. (5) The limitation period provided by the compensation law is inapplicable. Sec. 3727, R. S. Mo. 1939; Roach v. Durham Construction Co., 52 S.W.2d 593. (6) There having been seven employers under the compensation law, each of them paying the same wage and being liable for compensation, their proportionate liability for contribution is one-seventh each. Maplegreen Rlty Co. v. Miss. Valley Trust Co., 237 Mo. 350, 141 S.W. 621; Trendley v. Ill. Traction Co., 241 Mo. 73, 145 S.W. 1; Meissner v. Standard Ry. Equip. Co., 211 Mo. 112, 109 S.W. 730; Berry v. Rood, 209 Mo. 662, 108 S.W. 22; Sec. 3710, R. S. Mo. 1939; Demattai v. M., K. & T. Ry. Co., 139 S.W.2d 504; Van Petten v. Richardson, 68 Mo. 379; 18 C. J. S. 2; 6 R. C. L. 1036. (7) Investigation and defense expense was properly included in the judgment. Schaefer v. Fulton Iron Works Co., 158 S.W.2d 452.

OPINION

Shain, P. J.

In this action the plaintiff seeks contribution from the defendants for monies paid out by plaintiff which is alleged to have been paid out by it on behalf of said defendants.

This action for contribution arises out of an award by the Workmen's Compensation Commission in the case of Hugo Schultz v. Moerschel Products Company, employer, and Equity Mutual Insurance Company, said insurance company being the plaintiff herein.

The Moerschel Products Company appealed from the award made by the commission to the circuit court, wherein there was a judgment upholding the award, and thereafter said Moerschel Products Company appealed from the judgment of the circuit court and the appeal came to this court and this court affirmed the judgment of the circuit court. [See Hugo Schultz v. Moerschel Products Company, 142 S.W.2d 105.]

The facts and issues involved in Schultz v. Moerschel Products Company case are fully set forth in the opinion, supra, and we will not undertake herein to restate in detail. Sufficient to an understanding of the review of the case before us is the fact that Schultz was employed as a night watchman by approximately sixty corporations and business concerns located in the municipality of Hermann, Missouri. The parties concerning themselves with the employment of a night watchman conferred with and cooperated with the city authorities of Hermann, Missouri, to the end that the night watchman be granted an officer's commission and could carry a gun and have authority to make arrests. Under the condition of employment, each corporation or business firm agreed to pay $ 1 per month and the city, for certain duties to be performed by the watchman, also contributed to Schultz's pay.

The Moerschel Products Company and the six defendants herein were the only ones of the total number of the concerns employing Schultz who were operating under the provisions of the Missouri Workmen's Compensation Act.

Schultz filed claim with the Workmen's Compensation Commission and an award in accordance with that act was made in favor of Schultz. The plaintiff herein was the insurer for the Moerschel Products Company and plaintiff, prior to the bringing of this suit, had duly met and paid to Schultz and on his behalf all amounts due to Schultz to the date this suit was brought.

This action by plaintiff is based upon the provisions of Section 3697 of the Missouri Workmen's Compensation Act.

Sec. 3697 of the act is as follows:

"Sec. 3697. Employer's Liability may be joint and several -- contribution allowable. -- If the injury or death occurs while the employee is in the joint service of two or more employers, their liability shall be joint and several, and the employee may hold any or all of such employers. As between themselves such employers shall have contribution from each other in the proportion of their several liability for the wages of such employee, but nothing in this chapter shall prevent such employers from making a different distribution of their proportionate contributions as between themselves."

We find no Missouri court decision which attempts to give any general construction of Section 3697, supra. In Grote et al. v. Monward Realty Co., 96 S.W.2d 660, we find brief comment upon one phase of the provisions of this section and we will discuss and apply same ante. However, we find no Missouri case attempting to interpret said section on the right of contribution provided for in this section.

Many of the provisions of the Workmen's Compensation Act have been construed in judicial opinions of this State and in giving construction herein, for the purpose of review of the issues, we deem it necessary to briefly review the scope and purposes of the act as gleaned from its language and in connection with construction given in previous opinions. This to the end that our construction of the provisions of Section 3697 may harmonize with...