Gholson v. Scott

• Decision Date: 28 June 1939
• Docket Number: No. 25201.,25201.
• Citation: 130 S.W.2d 216
• Parties: GHOLSON v. SCOTT et al.
• Court: Missouri Court of Appeals

130 S.W.2d 216

GHOLSON v. SCOTT et al.

No. 25201.

St. Louis Court of Appeals. Missouri.

June 28, 1939.

Appeal from St. Louis Circuit Court; Eugene L. Padberg, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Alleen Gholson, widow of William Gholson, employee, deceased, claimant, opposed by Oreon E. Scott, doing business as Oreon E. and Raymond G. Scott, J. B. Darling and Tioa Corporation, employers. From a judgment of the Circuit Court of the City of St. Louis, Mo., affirming an award and findings of fact of the Workmen's Compensation Commission in favor of claimant, Oreon E. Scott appeals.

Reversed and remanded with directions to enter a judgment reversing the award of the Commission.

Jeffries, Simpson & Plummer, of St. Louis, for appellant.

G. A. Ryan, of St. Louis, for respondent.

BECKER, Judge.

This is an appeal by Oreon E. Scott, doing business as Oreon E. and Raymond G. Scott, from a judgment of the Circuit Court of the City of St. Louis, Missouri, affirming an award and findings of fact of the Missouri Workmen's Compensation Commission in favor of respondent William Gholson, employee. In effect we adopt respondent's statement of the case.

The employee-respondent William Gholson filed his claim for compensation with the Workmen's Compensation Commission, alleging that Oreon E. & R. G. Scott, J. B. Darling and Tioa Corporation were his employers, and that he was injured July 22, 1937, while working in the service of the said employers as a carpenter.

Darling's answer admitted that an accident had occurred, but denied that claimant was employed by Scott or by the Tioa Corporation, and alleged that claimant's injuries were not covered by the act because he (Darling) was a minor employer and not subject to the act.

The answers of Scott and Tioa Corporation denied every allegation in the claim of the employee-respondent and further asserted that the employee-respondent was not in their employ at the time he met with his injuries.

At the hearing before a referee it was admitted that the claimant was injured on July 22, 1937, while working as a carpenter on an apartment building at 4363-65 St. Louis avenue, St. Louis, Missouri, owned by the Tioa Corporation, and for which Scott was the agent of the Tioa Corporation, in charge of the collection of rents. The referee found:

"That said William Gholson was not an employee of either Oreon E. Scott, doing business as Oreon E. and Raymond G. Scott, or Tioa Corporation, both major employers;

"That said William Gholson was an employee of said J. B. Darling, but that said J. B. Darling was a minor employer; therefore, the commission is without jurisdiction to entertain this claim on its merits as against said J. B. Darling."

The claimant duly filed his application for review by the full commission. Neither party offered any additional evidence, and on August 19, 1938, a final award was made by the full commission, awarding compensation to the claimant. The commission made findings of fact that claimant was "employed by J. B. Darling, an independent contractor, who had contracted with Oreon E. Scott, doing business as Oreon E. and Raymond G. Scott, to make repairs on premises controlled and managed by the said Oreon E. and Raymond G. Scott, doing business as Oreon E. & Raymond G. Scott.

"We further find that the making of said repairs at the time of employee's accident was a part of the usual business of Oreon E. Scott, doing business as Oreon E. and Raymond G. Scott, and that Oreon E. Scott was the statutory employer of William Gholson, and is liable to pay compensation in accordance with Section 3308, Subsection (a), Revised Statutes of Missouri, 1929.

"We find that William Gholson was not an employee of Tioa Corporation."

Appellant Scott duly appealed to the Circuit Court of the City of St. Louis, Missouri, which court affirmed the finding and award of the commission, and Scott duly perfected his appeal to this court.

It is appellant's contention here that the award of the commission is not supported by sufficient competent evidence to warrant the making of the award. The point is well taken.

A reading of the record discloses no substantial competent evidence to support the finding that appellant Oreon E. Scott, doing business as Oreon E. & Raymond G. Scott, was liable for compensation as the statutory employer of respondent Gholson, under the provisions of sec. 3308, subsection (a) Rev. St.Mo.1929, Mo.St.Ann. § 3308(a), p. 8242, which section reads as follows: "(a) 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 employes when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business."

The record discloses that claimant worked as a carpenter for J. B. Darling who had been in the building business "on his own account since 1929." Since 1931 Darling had done work for various real estate firms and other people in St. Louis. Darling had employed claimant "on and off since 1931." The Tioa Corporation owned property known as 4363-65 St. Louis avenue in St. Louis. The rents for the property were collected by Oreon E. Scott, doing business as Oreon E. & Raymond G. Scott. In July, 1937, Mr. Blue, one of the employees of Scott, accompanied Darling to the St. Louis avenue property to determine what repairs were necessary to the building. Thereafter Darling submitted a bid, agreeing to do the necessary carpenter work for $250. The bid was accepted and Darling proceeded with the work, employing Gholson, claimant herein, as a carpenter on the job. During the course of his work Gholson fell onto the basement stairway and was injured.

Gholson himself testified that in the spring of 1937 he told Darling that he wanted a job; that Darling told him that "Mr. Blue told me to get a man or two" and that Darling told Mr. Blue he knew of a good one, and that Mr. Blue said to "hire me and he hired me." Gholson further testified that while he was working on the job Mr. Blue came around often, and that "now and then" he told him "something to do"; that the week after he was hurt he talked to Mr. Darling about compensation, and after that he went to see Mr. Blue at his office and was told by him: "There is no compensation. I might give you a little piece of money or something to that effect. I said `How much?' and he said `Five dollars,' but I did not accept it."

On cross-examination claimant testified that he had been employed by Darling in 1927 and had worked for him for about seven or...