Gibson v. St. Joseph Lead Co.

• Decision Date: 02 March 1937
• Citation: 102 S.W.2d 152,232 Mo.App. 234
• Parties: R. H. GIBSON, APPELLANT, v. ST. JOSEPH LEAD COMPANY, RESPONDENT
• Court: Missouri Court of Appeals

102 S.W.2d 152

232 Mo.App. 234

R. H. GIBSON, APPELLANT, v. ST. JOSEPH LEAD COMPANY, RESPONDENT

Court of Appeals of Missouri, St. Louis

March 2, 1937

Appeal from the Circuit Court of Washington County.--Hon. E. M Dearing, Judge.

AFFIRMED.

Judgment affirmed.

Samuel Richeson for appellant.

(1) There was no competent evidence to sustain the finding that the relation between the St. Joseph Lead Company and Will Miller was that of vendor and vendee. Standing timber is a part of the real estate, and may be conveyed only by deed duly executed and acknowledged. Potter v. Everett, 40 Mo.App. 152; Morgan v. Pott, 124 Mo.App. 371, l c. 377; Cooley v. K. C., P. & G. R. R. Co., 149 Mo 487, l. c. 493. (2) Any person having work done under contract on or about his premises which is an operation of the usual business which he there carries on is deemed an employer of the contractor and his employees and sub-contractors. Pruitt v. Harker, 328 Mo. 1200; Woodruff v. Superior Mineral Co., 70 S.W.2d 1104 (affirmed on certiorari, Superior Mineral Company v. Hostetter, 337 Mo. 718); section 3308, sub-section (a), R. S. Mo. 1929; Simpson v. New Madrid Stave Company, 52 S.W.2d 615.

Parkhurst Sleeth and Albert Miller for respondent, St. Joseph Lead Company.

(1) The court did not err in affirming the award of the Workmen's Compensation Commission. Under the facts in this case, the relationship existing between the St. Joseph Lead Company and Will Miller, at the time of appellant's injury, was that of seller and buyer of a commodity, or, as found by the Commission, and affirmed by the court below, the relationship of vendor and vendee. Loud v. St. Louis Union Trust Co., 313 Mo. 552, l. c. 596, showing what a sale is; Burkhardt v. Decker, 221 Mo.App. 1066, l. c. 1070, 295 S.W. 838, l. c. 840; Wheless v. Grocery Co., 140 Mo.App. 572, l. c. 585; Barrie v. United Railways Co., 138 Mo.App. 557, l. c. 651, et seq. (2) When the subject-matter of the contract is a chattel to be afterwards delivered, then, although work and labor are to be done on such chattel before delivery, the contract is one of sale. Burrell v. Highleyman, 33 Mo.App. 183, l. c. 189; Pike Electric Co. v. Drug Co., 42 Mo.App. 272; Schmidt v. Rozier, 121 Mo.App. 306, l. c. 309; Planing Mill Co. v. McCormack, 127 Mo.App. 349, l. c. 352; Monument Co. v. Geary, 210 Mo.App. 45, l. c. 49; Pratt v. Miller, 109 Mo. 78, l. c. 84; Henrickson v. Packing Co., 109 Wash. 644. (3) (a) Where a purchaser buys and a vendor sells certain logs without condition or reserve, and the measurement provided for in the contract was simply to ascertain the amount to be paid by the purchaser, the title in the logs passes to the purchaser at the time the contract is executed. 17 R. C. L., p. 1098, sec. 25; Leonard v. Davis, 1 Black 476, 17 U. S. (Lawyers' Ed.) 222. (b) A sale of "what remaining commercial timber there" on specified land (Desloge Tract) takes place at once, when the timber has answered the description, though it may be a question of fact as to what is and what is not commercial. Teachout v. Clough, 143 Mo.App. 474, l. c. 490. (c) Trees, when severed from the land, become personal property. Yoakum v. Davis, 162 Mo.App. 253, l. c. 259; Richmond Land Co. v. Watson, 129 Mo.App. 554, l. c. 556. (4) The findings of the Commission that Gibson was not an employee of the St. Joseph Lead Company, but of Miller and that Miller, having, at the time of appellant's injury, less than ten employees, was a minor employer and was not operating under the Workmen's Compensation Law, are supported by substantial, competent evidence and said conclusions of the Commission, resting on fact findings supported by any competent evidence, are conclusive and binding upon the court on appeal. Section 3302, sub-section (b), R. S. Mo. 1929; Pruitt v. Harker, 43 S.W.2d, l. c. 770, col. 2; Barlow v. Shawnee Inv. Co., 48 S.W.2d 35, l. c. 45; Lally v. Morris, 26 S.W.2d 52; Elsas v. Montgomery Elevator Co., 50 S.W.2d 130, l. c. 133; Haill v. Champion Shoe Mchy. Co., 71 S.W.2d 146, l. c. 148; Borghoff v. Walter Freund Bread Co., 93 S.W.2d 1032, l. c. 1033 (and cases there cited). Such finding of the Workmen's Compensation Commission, and the award based thereon, is in the nature of a special verdict and is conclusive, if supported by any substantial, competent evidence. Mo. St. Ann., sec. 3342, p. 8275; Secs. 3342, 3299, R. S. Mo. 1929; Jones v Century Coal Co., 46 S.W.2d 196; Woodruff v. Superior Mineral Co., 70 S.W.2d 1104, l. c. 1106, and cases there cited. (5) The Commission has no power or jurisdiction to consider a claim if the employer has less than ten employees, has not elected to come under the Compensation Act, and is not engaged in hazardous occupation. Secs. 3302-3303, R. S. Mo. 1929; Barlow v. Shawnee Inv. Co., 48 S.W.2d l. c. 45, et seq. (6) The work being done by Miller on the land of the St. Joseph Lead Company, at the time appellant was injured, was not a part of said Lead Company's usual business, and, not being a part of the operation of said Lead Company's usual business (the usual business of said Lead Company being that of mining and milling lead), but only incidental, ancillary or auxiliary thereto, the case is not one for compensation. Sec. 3308 (a), R. S. Mo. 1929; Sec. 3303, subdivision "Third," R. S. Mo. 1929; Cummings v. Union Quarry & Construction Co., 87 S.W.2d 1039; Pitts v. Maupin et al., 88 S.W.2d 384, l. c. 385, 386.

HOSTETTER, P. J. McCullen, J., concurs. Becker, J., not sitting.

OPINION

HOSTETTER, P. J.--

This is a suit under the Workmen's Compensation Law, coming to this court by appeal on the part of the claimant from the Circuit Court of Washington County.

The following are the salient facts shown by the testimony.

The St. Joseph Lead Company, a corporation, whose regular and principal business is that of lead mining, owned, among other tracts of land, 160 acres of timbered land in Washington County. The land belonging to the corporation was looked after by one M. M. Huff. This 160 acres was locally known as the Desloge tract and had been acquired by the corporation in 1929.

Mr. Huff in company with Mr. Will Miller examined the Desloge tract after having received information that much of the timber had been stolen therefrom, and, finding the report of the thefts was correct, he told Mr. Miller that if the Company got anything out of the timber something should be done about it right away and said that the company should have a royalty of $ 4 a thousand feet for the timber.

Sometime later, Mr. Miller approached Mr. Huff and told him that he had made arrangements to sell the timber at such a figure that he could pay the royalty of $ 4 per thousand feet and Mr. Huff said that was all the company wanted out of it and that if he could pay that he could cut the timber.

There was no agreement as to who would do the cutting for Mr. Miller and how much the timber should be sold for by him. Mr. Miller suggested the plan that the man to whom he sold the timber should remit to the Lead Company the entire amount and that they should deduct the $ 4 per thousand feet royalty and forward him a voucher covering his part of the sale. Later on they followed this plan.

The Superior Timber Company of Potosi, a corporation, was the purchaser of the timber from Miller, paying $ 9 per thousand feet for the timber delivered. This Superior Timber Company operated through Mr. Casey, its president, and the plan finally carried out was that when Miller would receive the proceeds from the sale of the timber to the Superior Timber Company he would send the checks directly to the St. Joseph Lead Company and that Company would keep $ 4 a thousand feet and send Miller a voucher for the difference. Miller was not on the salary roll of the St. Joseph Lead Company.

Miller's testimony was to this effect:

That most of his business was work he did for the community; that he dug ditches, made roads and, once in a while he got a contract from the Farming and Cattle Company for making ties; that he bought the timber on the Desloge tract from the St. Joseph Lead Company, through Mr. Huff, at $ 4 per thousand feet for stumpage after he had made a deal with Mr. Casey of the Superior Timber Company to sell the timber to him at $ 9 per thousand feet; that after contracting with Mr. Huff, representing the St. Joseph Lead Company, he gave Mr. Coleman a contract of cutting the logs for $ 1.25 per thousand, and Coleman asked him who to get for a partner and he (Miller) said, "Anybody you want," and then Coleman said maybe he could get Mr. Gibson (the claimant) and that he said that would be all right with him, anybody he could get; that he also hired others to drag the logs after they were cut, that is, to skid them up, and others were hired to haul them into town where they were delivered to the Superior Timber Company; that he had working on the job Coleman and Gibson cutting down trees, Harper to drag the logs, Gross and two helpers, one to load and one to help haul the logs, and that he himself helped practically all the time; that he had no other men working for him on this or any other job at that time; that he advised Mr. Casey to write the checks in the St. Joseph Lead Company's name; that he preferred that he do so in order to show his honesty and that all of them were written and delivered to the St. Joseph Lead Company.

R. H. Gibson, the claimant, testified substantially as follows:

That Will Miller hired him to do the work through Mr. Coleman that he was hired on the 19th day of May 1934; that he and Coleman were to get $ 1.25 a thousand feet for cutting the timber; that he had worked two days and the third day about ten o'clock, on May 24, 1934, a pine tree that had been cut by them in falling caught on a...