Holmes v. Freeman
| Decision Date | 06 May 1941 |
| Docket Number | No. 25708.,25708. |
| Citation | 150 S.W.2d 557 |
| Parties | HOLMES v. FREEMAN. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; John A. Witthaus, Judge.
"Not to be reported in State Reports."
Proceeding under the Workmen's Compensation Act by Bud Holmes, claimant, opposed by L. R. Freeman, doing business as the Freeman Brothers Stave Company, employer. From a judgment of the circuit court affirming a final award of the Workmen's Compensation Commission, the alleged employer appeals.
Affirmed.
R. E. Kleinschmidt, of Hillsboro, for appellant.
John F. Clancy and Albert I. Graff, both of St. Louis, for respondent.
This is an appeal from a judgment of the Circuit Court of St. Louis County affirming a final award of the Missouri Workmen's Compensation Commission in favor of respondent. The claim originated in Jefferson County, but, after appeal from the award of the Compensation Commission to the Circuit Court of said County, it was by change of venue and agreement transferred to Division No. 2 of the St. Louis County Circuit Court. Respondent, the alleged employee, was injured while cutting timber on the land of George Schneider in Jefferson County on November 15, 1938.
The evidence shows that appellant, the alleged employer, operated a stave mill at House Springs in Jefferson County; that, in connection with the operation of this mill, he bought timber, also called stave bolts, from various persons and cut such bolts into barrel staves; that appellant's agent, W. G. Heiskell, purchased timber on a tract of land owned by G. W. Schneider for the sum of $205. This transaction is shown in Exhibit B introduced in evidence by appellant. It is as follows:
Thereafter said timber was sold by appellant to J. D. Moore, the transaction being shown in Exhibit C introduced in evidence by appellant. It is as follows:
In connection with the latter transaction a note was executed by Moore to L. R. Freeman for $204, which it is shown was paid by Moore on January 7, 1939.
Respondent testified that on November 14, 1938, he was at Freeman's Mill and that appellant L. R. Freeman told him to go to work; that Charley Jameson, Homer Wisdom and Emmett Crocker were with him at the time; that Freeman told them to go to the Schneider tract of timber; that they went in Crocker's car; that they reported to Schneider at the place where the timber was located, which was about eight miles from Freeman's Mill; that Freeman had told them they would get paid at the rate of $4 a cord; that they all started cutting stave bolts; that they worked all day on the 14th of November; that they went back to Freeman's Mill at House Springs in Crocker's car and went to bed in tents which they had rented from J. D. Moore close to the mill outside the plant; that the next morning they went back to work on the Schneider tract of timber, again using Crocker's car; that the tools they used in doing the work were an ax, saw, split hammer and wedge; that the witness furnished the saw and the ax and L. R. Freeman furnished the other tools; that as he was working "I split the cut open and started cording it up, and a piece of the wedge flew off and hit me in the eye"; that he was taken to a doctor at House Springs; that the doctor sent him to St. Louis where he was treated by Dr. J. F. Hardesty, who sent him to St. Mary's Hospital where he was operated on; that he is still blind in his left eye; that the eye was in good condition before he was injured.
The evidence shows that appellant bought stave bolts from various persons, and through his agent Heiskell bought tracts of standing timber by written contract. As to some of the tracts, defendant employed men to cut the bolts and haul them to his mill; that he carried insurance policies under the Workmen's Compensation Act as to all such persons and all persons working around the mill, designating such persons as his "employees"; that he did not carry any such insurance as to respondent; that a number of the above-mentioned written contracts for the purchase of timber were assigned by appellant to different timber cutters who were free to employ their own workmen and to sell the bolts wherever they pleased, although most of them sold them to appellant because his stave mill was the nearest in the vicinity.
It appears from the evidence that prior to respondent's injury J. D. Moore spoke to Emmett Crocker, who had previously worked as a timber cutter for Freeman, and asked Crocker if he wanted a job in the timber and told him to get a partner. On the following day Crocker, Homer Wisdom, Charley Jameson and respondent called at appellant's stave mill at House Springs to see Moore but did not find him there. It was then that L. R. Freeman spoke to the four men and told them to go to the Schneider tract to cut the timber. Mr. Freeman at that time gave Homer Wisdom a note to give to Mr. Schneider, which Wisdom did on arrival there.
It appears from the evidence that the timber cut by respondent and the other three men on the Schneider tract was hauled to appellant's mill where it was cut into barrel staves; that respondent and his fellow workers were paid for their work by a check of the Freeman Brothers Stave Company. The evidence on behalf of respondent was to the effect that Freeman always paid them; that Moore did not at any time pay them; that Moore was not on the Schneider tract during the time respondent and the other men worked there. The men who worked with respondent on the job where he was injured testified that they considered that appellant was their employer because he had paid them. In this connection claimant's Exhibit No. 1 was introduced in evidence as follows:
"Safety First No. 427
"The Bank of Freeman Brothers
Personal Service Stave and Heading Co
House Springs, Mo.
"House Springs, Mo. 11-10-1938.
"Pay to the order of J. D. Crocker....$5.52
Freeman Brothers Stave Company...........5
Dollars
"Freeman Bros.' Stave &
Heading Co.
"By L. R. Freeman
"To Bank of House Springs
"House Springs, Mo.
"138 feet — J. D. Moore cutters."
The accident occurred on November 15, 1938, but it will be noted that the above check, claimant's Exhibit No. 1, is dated "11-10-1938", as mistakenly shown in the abstract. However, it is conceded by appellant in his brief that the check was dated "November 19, 1938", and that it contained the wages of respondent as well as Crocker. The check was indorsed on the back by Emmett Crocker. In connection therewith, Emmett Crocker testified that he got the check at Freeman's office, took it down to House Springs, got the check cashed and took it home for his father J. D. Crocker; that he indorsed the check with his name on the back thereof. Being shown the check, the witness testified: "That looks like the check, that is my handwriting on the back, but Moore's name wasn't on that check when I got it; if `J. D. Moore cutters, 138 feet' on the left side of that check was on there when it was paid to me I never saw it; I don't remember seeing it, it wasn't on there."
J. D. Moore testified he had paid some of the men in cash and some of them in checks. He produced several of these checks at the trial and in connection therewith he and appellant both testified that on occasions the timber cutters would want their money and that appellant would pay them with his check and then deduct the amounts thereof from the amount appellant owed for the bolts; that all such checks contained a notation reciting the number of feet of bolts, and that the payment was made for Moore's cutters. Appellant's evidence was that the notation "138 feet J. D. Moore cutters" was on the check at the time it was delivered, whereas respondent's evidence was to the effect that such notation was not on the check at that time.
In connection with the manner in which the work was done, Homer Wisdom, who was working with respondent at the time he was injured, testified: "I did the same kind of work that Holmes did, cutting timber on the same tract, and the reason I say that Freeman Brothers employed me was because they did the paying, and I don't know about any other reason."
Being shown, on cross-examination, Exhibit A, the check payable to the order of Charley Jameson for $5.57, bearing the notation "for cutting bolts" and signed "J. D. Moore", the witness stated: "I never saw that check before; the only reason I have for saying that I was employed by Freeman Brothers is because I was paid with their checks; Moore never paid me in cash."
The witness was asked if he saw L. R. Freeman when he went down to the Schneider tract to do the work, and answered that he did not see him "for pretty near a week maybe." He further testified at this point:
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