Johnson v. Simpson Oil Co., 8402

• Decision Date: 04 August 1965
• Docket Number: No. 8402,8402
• Citation: 394 S.W.2d 91
• Parties: Frank P. JOHNSON, Plaintiff-Appellant, v. SIMPSON OIL COMPANY, Inc., and Travelers Insurance Company, a corporation, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 91

394 S.W.2d 91

Frank P. JOHNSON, Plaintiff-Appellant, v. SIMPSON OIL COMPANY, Inc., and Travelers Insurance Company a corporation, Defendants-Respondents.

No. 8402.

Springfield Court of Appeals, Missouri.

Aug. 4, 1965.

Dempster & Edwards, Sikeston, for plaintiff-appellant.

Evans & Dixon, Edward W. Warner, St. Louis, for defendants-respondents.

STONE, Judge.

In this proceeding under the Missouri Workmen's Compensation Law, Frank P. Johnson, the claimant, seeks benefits on account of personal injuries sustained by him on April 5, 1961, in an accidental fall at a service station in Dexter, Missouri (hereinafter referred to as the station). Claimant's theory has been and is that he was a statutory employee of Simpson Oil Company, Inc. [Section 287.040], ¹ whose liability under the Compensation Law was insured by Travelers Insurance Company. The referee found for claimant, but on review the Industrial Commission, with one member dissenting, found for the alleged employer (hereinafter referred to as Simpson) and its insurer and denied compensation. The final award of the Commission having been affirmed by the circuit court, claimant again appeals.

We emphasize at the outset that, although on judicial review the circuit court was in the first instance, and this court is on appeal, authorized to determine whether, upon the entire record, the Industrial Commission reasonably could have made the findings and award under consideration, this does not mean that either court should substitute its own judgment on the evidence for that of the Commission; but that a reviewing court may set aside the findings and award of the Commission only if they are clearly contrary to the overwhelming weight of the evidence, when the evidence in its entirety, including all legitimate inferences reasonably deducible therefrom, is viewed in the light most favorable to such findings and award. Cotton v. Voss Truck Lines, Inc., Mo.App., 392 S.W.2d 428; Hance v. Johnson, Stephens & Shinkle Shoe Co., Mo.App., 306 S.W.2d 80, 83(5-7); Garrison v. Campbell '66' Express, Mo.App., 297 S.W.2d 22, 30(8), and cases collected in footnote 11. Our statement of facts accords appropriate and required recognition to that guiding principle. Slider v. Brown Shoe Co., Mo.App., 308 S.W.2d 306, 307; Davis v. McKinney, Mo.App., 303 S.W.2d 189, 190.

At a time not fixed in the record, Simpson, a wholesale distributor of gasoline, motor oils and greases, leased the station, including 'the grease rack and other heavy equipment,' from one Paul McConnell, the owner thereof. Subsequently, to wit, 'about 1955,' Simpson acting by and through J. R. Stanley, its sales representative in charge of the 'territory' in which Dexter was situate, entered into an oral agreement with claimant, under which claimant took possession of the station and operated it. About two years later, claimant formed a partnership with his son-in-law, Louis McConnell, who was a brother of Paul McConnell, owner of the station, and thereafter the partnership operated the station under the same agreement.

Both claimant and Stanley stated that there had been an oral agreement; but, as is so frequently true with respect to matters not reduced to writing, the testimony concerning that agreement was unsatisfactory in that it did not establish all of the details with certainty and clarity. However, at the hearing the parties were in substantial accord as to the material terms of the oral agreement. Claimant was required to purchase from Simpson all products handled by it which claimant might sell or use at the station, principally gasoline, motor oils and greases; but claimant was to have the right, without limitation or restriction, to purchase from other suppliers such additional products as he might choose to sell or use. Simpson was to repair and maintain the grease rack and heavy equipment at the station. Other equipment, fixtures and small tools were to be supplied, maintained and replaced by claimant. For occupancy and use of the station, claimant was to pay Simpson, in addition to the wholesale price of gasoline and the transportation charge from Simpson's terminal to the station, an additional one cent per gallon as 'gallonage rental.' Claimant was (as he stated it) 'guaranteed a margin of three cents a gallon' on gasoline, meaning that, during periods to which motorists fondly refer as 'price wars,' Simpson was to reduce its wholesale price of gasoline to provide a margin of three cents per gallon between that price and the posted price at the station pumps. The term of claimant's occupancy and use of the station was not fixed in the oral agreement; and, insofar as the record discloses, there was no discussion of the method by which, or the notice upon which, such occupancy and use might be terminated.

Claimant, first as sole proprietor and later in partnership with his son-in-law, operated the station under this oral agreement for some six years prior to the accident of April 5, 1961. During that period, the parties appear to have followed, without significant deviation, the above-outlined provisions of the oral agreement. Claimant and his partner handled at the station not only gasoline, oils and greases purchased from Simpson but also a motley mixture of other items obtained from various suppliers, including new and used tires, batteries, automobile accessories, motorcycles, candy, cigarettes and cigars. For a time, claimant's partner ran a repair shop on the same premises. All monies derived from operation of the station were deposited in the bank account of the 'Dexter Service Station,' the trade name under which claimant and his partner did business, and no reports concerning sales or profits were required to be made, or were made, to Simpson.

Claimant and his partner set their own working hours and received no salaries or wages from Simpson. From time to time, the partnership (neither consulting with, nor reporting to, Simpson) hired and discharged employees at the station, paid their salaries, and as their employer withheld income and social security taxes from employees' wages, reported and remitted such taxes to the United States Government, and made such additional tax payments as were required of the employer. One of those employees, after termination of his employment, occupied the second-floor living quarters of the station building at a rental of $20 per month which was paid to and retained by the partnership. The merchant's license required by the City of Dexter was procured by the partnership in its trade name, and payment therefor was made from partnership funds. All utility and heating bills likewise were paid by the partnership. The partnership acquired for use at the station, and in the partnership income tax returns took credit for depreciation on, numerous items ranging in value from $295 to $20, including a safe, adding machine, file cabinet, show case, cigarette vending machine, tire rack, tire changer, battery charger, sparkplug cleaner, grease gun, grease dispenser, electric drill, sander, metal tool cabinets and tools.

Stanley, Simpson's sales representative, called at the station once or twice each month. When asked as to 'the purpose' of those visits, he replied, 'making a routine call, checking over the property, seeing if he [claimant] needed merchandise.' In an effort to show that Simpson might have exercised some measure of control over operation of the station, claimant's counsel interrogated both their client and Stanley concerning the suggestions which he (Stanley) might have made in the course of those station visits. Stanley readily agreed that he had inspected the rest rooms and that, if he had found them dirty, he might have suggested that they should be cleaned, and that, if business hours at the station had not been maintained 'in line with competition,' he might have made some suggestion concerning that. However, Stanley did not recollect having given any direction to claimant or his partner with respect to rest rooms, business hours, or any other matter.

Claimant himself testified that Stanley 'would look the station over and he would go in the rest rooms but he had no occasion to say anything to me about it because I kept my station up in order.' In response to the inquiry 'did you ever have any discussion with Mr. Stanley about the [business] hours,' claimant's unqualified reply was 'no, sir.' And at another point in claimant's direct examination we find this question and answer: 'Q. When Mr. Stanley would call on you would he give any directions as to what to do or not to do? A. No, not in particular because he had no occasion to.'

Although claimant averred that the station had been operated by the partnership composed of himself and his son-in-law, the partnership income tax returns listed as a partner one O. C. Johnson, identified by claimant as his wife; and, for four years prior to the date of accident, the tax returns had showed the net income of the partnership as divided between claimant's wife and son-in-law. Claimant's glib explanation, tendered as sufficient and acceptable under the easy morality of the day, was that, although his wife admittedly had no money invested in the station and had done no work there, he had 'put it [his share of the net income] in my wife's name to bring her social security up,' because 'I figure I [already] had my social security built up * * * and [I would] build up her social security and she could start drawing hers at 62.' Actually, claimant (so he said) had drawn himself, but in his wife's name, $25 per week and an additional lump sum at the end of the year.

The Industrial Commission found, inter alia, that the partners were independent contractors; that the station was under the control of the partnership and not that of Simpson; that the business conducted at the station was that of the partnership and not that of Simpson; that 'the partners did have an estate in the station...