Harper v. Home Imp. Co.

• Decision Date: 08 January 1951
• Docket Number: No. 1,No. 41837,41837,1
• Citation: 235 S.W.2d 558
• Parties: HARPER v. HOME IMP. CO. et al
• Court: Missouri Supreme Court

Page 558

235 S.W.2d 558

HARPER v. HOME IMP. CO. et al.

No. 41837.

Supreme Court of Missouri, Division No. 1.

Jan. 8, 1951.

Paul C. Sprinkle, William F. Knowles, Roy F. Carter and Sprinkle, Knowles & Carter, all of Kansas City, for appellants.

Rufus Burrus, J. Marcus Kirtley, Independence, for respondent.

LOZIER, Commissioner.

Appellant company and its insurer appeal from a judgment affirming a ruling of the Industrial Commission awarding claimantrespondent $8,571.52 workmen's compensation. As stated by appellants in their brief: 'The sole issue presented here for the court to pass on is a consideration of the record with respect to the question as to whether or not the respondent would be considered in law an employee.'

The company has its main office in Kansas City and a branch office at St. Joseph. Its business is roofing, siding and insulating buildings. Certain carpenter work is a necessary part of these operations. This consists chiefly of outside repairs or minor alterations; or, as stated by the company's owner, 'a part of our business is the rehabilitation of homes.' As to such work, one company representative testified: 'Well, we don't take it personally, but we did take it along with the other work.' The same was true as to guttering work.

Claimant and his two sons, operating as Harper and Sons, first began doing carpenter work for the company in April, 1946. 'For quite a while,' they did such work upon all the company's projects. Upon none was there any written agreement. Sometimes, 'I just told him I would do the job for so much money. * * * Sometimes I worked for him by the hour.'

The company was negotiating with William T. Bradley and Eva Bradley, his wife, owners of a residence in Independence, to do certain roofing, siding and insulating work on the house for a 'lump sum.' This work included certain necessary carpenter work. At the company's request, claimant 'looked over' the Bradley Job, and told the company that the specified carpenter work would cost the company '$1.25 an hour or $200; that $200 would be the limit on it. If it took more than enough labor and material to amount to more than $200, I would do the balance free.' The company expressly contracted with the Bradleys to do the specified carpenter work and included this estimate in the 'lump sum' agreement.

The company told claimant to go ahead with the carpenter work and thereafter directed and instructed him what to do, including doing carpenter work not originally estimated. The company furnished the ladder used by claimant in doing the work. For two days, one of claimant's sons worked on the job and claimant paid him by the hour. When claimant was injured, on September 28, 1946, he had been specifically directed to quit one phase of the work and to undertake another in order 'to let the siding workmen go to work.' It was while engaged in this latter phase that claimant sustained his injuries. After the accident the company, without consulting claimant, had the carpenter work finished by another carpenter.

Claimant kept a record of the hours on the Bradley job, including time spent on 'extra work.' There were 112 1/2 hours. He spent $50 for material. The only payment he received was $100, ten days before the accident. The company's vouchers, making payments to him on account of the company's various projects between July 5, 1946, and September 18, 1946 (this last being the $100 paid on the Bradley job) showed payments for 'wages.'

The commission specifically found that: on the day of the accident 'claimant was employed' by the company 'to make repairs on premises controlled and managed by' the company; 'the making of said repairs * * *...