Fowler v. Baalmann, Inc.

• Decision Date: 13 November 1950
• Docket Number: No. 41412,41412
• Citation: 234 S.W.2d 11,361 Mo. 204
• Parties: FOWLER et al. v. BAALMANN, Inc.
• Court: Missouri Supreme Court

Page 11

234 S.W.2d 11

361 Mo. 204

FOWLER et al. v. BAALMANN, Inc.

No. 41412.

Supreme Court of Missouri, en Banc.

Nov. 13, 1950.

Paul H. Koenig, St. Louis, R. Robert Cohn, Kansas City, Thomas L. Sullivan, St. Louis, for appellants.

N. Murry Edwards, Ninian M. Edwards, Jr., St. Louis, Homer A. Cope, Walter A. Raymond, Kansas City, for employer-respondent.

CONKLING, Judge.

This Workmen's Compensation case was first heard and submitted in Division Two of this court. After the filing of an opinion wherein only two of the judges concurred, that division, of its own motion, transferred the cause to the Court en Banc. After reargument before the entire court the divisional opinion was not adopted, and the cause was reassigned for preparation of another opinion. Portions of the divisional opinion are hereinafter used without quotation marks.

Ruby Fowler, a dependent widow, and Kay Fowler, a dependent child, made claim against Baalmann, Inc., for the death benefits ($13,142.00) provided by the Workmen's Compensation Law because of the death of James B. Fowler on March 11, 1947. Baalmann, Inc., operates a flying school and Fowler was in Baalmann's general employment as an instructor-pilot. Fowler and his 'G.I.' student, Fox, were killed on a night cross-country flight when a plane crashed near Kansas City. Baalmann, Inc., had not filed an election to come under the act and the Commission had not made a finding that it was under the act. Upon a hearing a referee found as a fact that Baalmann, Inc., 'did not employ more than ten regular employees for the continuous period of 5 1/2 consecutive work days from the date of its incorporation in March of 1946, to and including March 11, 1947.' The referee concluded, therefore, as a matter of law, that Baalmann was not a major employer under the act and, consequently, that the Commission lacked jurisdiction to entertain the claim. Upon review the Industrial Commission affirmed the award denying compensation but modified the award with respect to the reasons for the denial: 'We find from the evidence that the activities in which the employee was engaged, at the time of the accident which resulted in his death, were contrary to the instructions of the employer, and, therefore, the accident did not arise out of and in the course of employment.' The Circuit Court affirmed the award and upon this appeal by the dependents, Baalmann, Inc., insists that both questions are for this court's consideration and review as set forth in Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, Seabaugh Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55 and Karch v. Empire Dist. Electric Co., Mo.Sup., 218 S.W.2d 765.

Whether Baalmann, Inc., had the required number of employees, more than ten, and was therefore under the act depends upon the construction to be given the following sections, particularly Sections 3692 (a) and 3695(a) and (d) of the Workmen's Compensation Law, Mo.R.S.A.:

'Sec. 3690.

'Every employer and every employee, except as in this chapter otherwise provided, shall be conclusively presumed to have elected to accept the provisions of this chapter and respectively to furnish and accept compensation as herein provided, unless prior to the accident he shall have filed with the commission a written notice that he elects to reject this chapter.'

'Sec. 3692.

'(a) A major employer shall mean an employer who has more than ten employees regularly employed.

'(b) A minor employer shall mean an employer who has ten or less employees regularly employed.'

'Sec. 3693.

'Sections 3690, 3691 and 3692 of this chapter shall not apply to any of the following employments:

* * *

* * *

'Third: Employments which are but casual or not incidental to the operation of the usual business of the employer.'

'Sec. 3694.

'The word 'employer' as used in this chapter shall be construed to mean:

'(a) Every person, partnership, association, corporation * * * using the service of another for pay.'

'Sec. 3695. (Laws Mo.1947, Vol. 2, p. 438.)

'(a) The word 'employee' as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written * * *.

* * *

* * *

'(d) An employee who is employed by the same employer for more than five and one-half consecutive work days shall for the purpose of this chapter be considered a regular and not a casual employee.'

During the period of November 1, 1946 to March 11, 1947, excluding Mr. Baalmann, who was the principal owner of the company and who neither worked nor drew a salary and Mr. Stickel, who prior to 1947 drew a salary in excess of $3,600.00, Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 142 S.W.2d 866, there were twenty-one persons on the company's payroll. Baalmann contends, as is the fact and as the referee found, because the record does not show that at least eleven employees worked five and one-half consecutive days during the period, that it is not a major employer under the act. In so contending the respondent, as did the referee, applied Crevisour v. Hendrix, 234 Mo.App. 1012, 136 S.W.2d 404, 410. In that case the court in determining whether a house mover and builder came within 'A major employer shall mean an employer who has more than ten employees regularly employed.' Sec. 3692(a) ignored Section 3695 (a) and applied Section 3695(d) which says 'An employee who is employed by the same employer for more than five and one-half consecutive work days shall for the purpose of this chapter be considered a regular and not a casual employee' and held that an employer was not under the act as a major employer unless eleven persons worked or were employed for five and one-half consecutive days. The court said, 'the employes must work for more than five and one-half consecutive days. They must be 'more than ten' or, in other words, at least eleven. They must be employed for five and one-half consecutive work days. The 'five and one-half consecutive work days' applies, not to the individual employe but to the class or group of employes, to-wit, 'more than ten'. The employer is not brought within the act, if he at different times (intermittently), and not concurrently, employs more than ten different employes scattered through the period of employment. In other words, the number 'ten or more' is as important in determining the status, as is the length of the employment of 'five and one-half consecutive work days'.'

This reasoning and this contention overlook Section 3695(a) and misinterpret the purpose of Section 3695(d). Section 3695(a) is the general inclusive definition of an 'employee.' Under that Section 'every person in the service of any employer' is an 'employee.' And the test of whether an employer is a 'major' or a 'minor' employer is not that he shall employ more than ten employees who must have worked more than five and one-half days consecutively but 'who has more than ten employees regularly employed.' The phrase 'regularly employed' is not defined in the act. And 'regularly,' as used in the statute, "refers to the question whether the occurrence is or is not in an established mode or plan in the operation of the business, and has no reference to the constancy of the occurrence.' The word, 'regularly,' is not synonymous with constantly or continuously. The work may be intermittent and yet regular. Men may be regularly but not continuously employed.' McDonald v. Seay, 62 Ga.App. 519, 8 S.E.2d 796, 797, Norris v. Koenig, Mo.App., 183 S.W.2d 160. For example, in Sonnenberg v. Berg's Market, 227 Mo.App. 391, 55 S.W.2d 494, 495, four additional butchers were 'casual' and not 'regular' employees. But it was held that the extra work 'was regular and recurrent. It came with regularity every Saturday. It was not unforeseen or unexpected, accidental or fortuitous.' In Carrigan v. Western Radio Co., 226 Mo.App. 468, 44 S.W.2d 245, one was injured the second day of his employment and even though he had not worked five and one-half days, consecutive or otherwise, it was held that he was a regular and not a casual employee. In general, therefore, whether one is a major employer rather than a minor employer with 'more than ten employees regularly employed' is to be tested by the term 'regularly employed' and the definition of 'employee' in Section 3695(a). 'The law (Section 3695(a)) does not provide that one may not be a regular employee unless he has been actually engaged in the work for more than five and one-half consecutive work days before the accident, but that, where one is employed, i. e., hired for a work contemplating, and is actually engaged for, more than five and one-half consecutive days, he must be considered a regular employee. From the definitions used, it would seem that a 'regular' employee is one who is 'regularly employed' and must be included or counted in determining the number of employees 'regularly employed.' The word 'regular' is used in the act as an antonym of the word 'casual,' and, when an employee is regular, or 'regularly employed,' he is not casual.' Barlow v. Shawnee Inv. Co., 229 Mo.App. 51, 68, 48 S.W.2d 35, 45.

Following Section 3692 is Section 3693 which provides that Section 3690 ('Every employer and every employee * * * shall be conclusively presumed to have elected to accept the provisions of this chapter * * *.') and Sections 3691 and 3692 shall not apply to five specified employments, the third of which is 'Employments which are but casual or not incidental to the operation of the usual business of the employer.' Section 3694 is another general definition--this time of 'employer' and it includes 'Every person * * * corporation * * * using the service of another for pay.' Section 3695 then defines in clause (a) 'employee,' in clause (b) 'accident,' in clause (c) 'personal injuries arising out of and in the course of such employment' and clause (d) does not define the...