Kennedy v. J. D. Carson Co., 25758.

• Decision Date: 08 April 1941
• Docket Number: No. 25758.,25758.
• Citation: 149 S.W.2d 424
• Parties: KENNEDY v. J. D. CARSON CO. et al.
• Court: Missouri Court of Appeals

149 S.W.2d 424

KENNEDY v. J. D. CARSON CO. et al.

No. 25758.

St. Louis Court of Appeals. Missouri.

April 8, 1941.

Rehearing Denied April 22, 1941.

Appeal from St. Louis Circuit Court; Robert L. Aronson, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Joseph Kennedy, claimant, opposed by the J. D. Carson Company, employer, and the Employers Mutual Liability Insurance Company, insurer. From judgment affirming an award granting compensation, the employer and insurer appeal.

Affirmed.

Frederick J. Corbett, of St. Louis, for appellants.

Albert I. Graff, of St. Louis, for respondent.

McCULLEN, Judge.

This proceeding was instituted before the Missouri Workmen's Compensation Commission. In its final award the Commission found that respondent was a statutory employee under Section 3308(a), R.S.Mo.1929, Mo.St.Ann. § 3308(a), p. 8242, and awarded compensation to respondent in the sum of $20 per week for fifty weeks, and to Dr. Leo Will the sum of $19.50 for medical aid. The commission also entered its findings of fact. The alleged employer and insurer appealed to the Circuit Court of the City of St. Louis where the final award and findings of fact of the commission were affirmed. From that judgment of the circuit court the alleged employer and insurer appealed to this court.

Appellants contend that the facts found by the commission do not support the award; and that there was not sufficient competent evidence in the record to warrant the making of the award both as to the right to compensation and, if respondent be entitled to compensation, the amount of the weekly wage upon which compensation was computed. It is urged by appellants that the work which respondent was doing when he was injured was a casual employment and not incidental to the operation of the usual business of the employer, and compensation should have been denied under Section 3303, Subsection third, R.S.Mo. 1929, Mo.St.Ann. § 3303, Subsection third, p. 8237; and further, that claimant respondent was an independent contractor and should have been denied compensation under Section 3308(c), R.S.Mo.1929, Mo. St.Ann. § 3308(c), pp. 8242, 8243; that, as the commission found respondent was an independent contractor in its special finding of fact, such finding was binding on the trial court and on this court. These complaints necessitate a review of the evidence.

The evidence discloses that the alleged employer, a corporation, occupied the entire building on the southeast corner of Eleventh and Olive Streets in the City of St. Louis, where it operated a retail furniture store, having on display for sale purposes all kinds of furniture, ice boxes, radios, pianos, linoleums and similar articles. The building, including a mezzanine and basement, was eight stories in height. In the building were two elevators, one a passenger elevator and the other a freight elevator. Respondent sustained his injuries while he was engaged in repairing one of said elevators.

It appears from the evidence that for about eighteen years respondent had been an employee of the W. A. Miller Elevator Company installing, repairing and servicing elevators in various buildings in St. Louis; that appellant Carson Company was a customer of said Miller Company; that while respondent was with the Miller Company he had been sent to the appellant Carson Company's store in connection with elevator adjustments or repairs; that in June, 1939, he lost his position with the Miller Company, and, at the suggestion of an employee of the Carson Company, respondent got in touch with Alexander H. Fihn, president of the Carson Company, with a view of servicing and repairing that company's elevators; that respondent, on July 12, 1939, submitted a written proposal under the name of Kennedy Engineering Company to the Carson Company wherein he proposed to service the two elevators in the Carson Company store at Eleventh and Olive Streets and one in its store on Olive Street near Jefferson at least once a week. In said proposal, respondent agreed to furnish oil and grease and minor call back service, but stated that on major repairs there would be an additional charge. For said service respondent asked the sum of $8 per month. Later on, but before the accident, the respondent had a conversation with Mr. Fihn, president of the Carson Company, by which respondent agreed to do all repairs on the elevators for $16 per month. The last-named agreement had been reduced to writing and dated July 31, 1939, by Mr. Fihn but was never signed by respondent. It therefore remained an oral agreement.

The evidence further shows that the Carson Company had no mechanics in its employ competent to service an elevator; that it had always let out the contract to repair its elevators; that when respondent took over said work, there were no fixed hours within which he was required to do it, but, in case of an emergency, the Carson Company expected him to service or repair its elevators immediately so that the business of the company would not be interrupted; that respondent was privileged to call at the store any time he saw fit, but that it was regarded as more convenient to do the work before or after working hours because the Carson Company salesmen would complain if respondent tied up an elevator for repairs when the salesmen wished to take their customers from one floor to another in the building in carrying on their sales work; that the various floors of the building were used as sample rooms where furniture was exhibited to customers; that, when the passenger elevator was not operating, the freight elevator was used for passengers; that the freight elevator was regularly used to carry the furniture and other articles to and from the various floors as such goods were bought and sold; that there was no tenant other than the Carson Company in the building.

The evidence further shows that on August 3, 1939, one of the elevators in the Carson Company store developed a noise in the overhead sheave wheels. A phone call was put in for respondent by the Carson Company, and upon his return to his place of business respondent telephoned Mr. Fihn, president of the Carson Company, and asked that he might defer his visit until the next day, but Mr. Fihn insisted that respondent come over immediately and repair the elevator because it was during business hours and caused great inconvenience to have an elevator tied up. Respondent immediately visited the store, and after an inspection decided that the trouble was in an overhead sheave. At respondent's request one of the Carson Company's employees ran him with the elevator up to the sixth floor, where respondent got out of the car and the employee then ran the car down until the top of the car was level with the sixth floor. Respondent stepped on the top of the car, whereupon the employee, under respondent's direction, ran the car up to the top of the elevator shaft, from which position respondent climbed still farther up until he located the trouble and repaired it. After completing the repair, he told the employee, who was still in the elevator car, that he would be ready to go down in a short time. The employee, believing he had been ordered to lower the car, did so, whereupon respondent's hand, being close to the overhead moving parts, was caught and injured. Respondent then climbed down, got into the car and was lowered to the main floor where Mr. Fihn, president of the Carson Company, seeing that respondent was losing blood, made an effort to obtain a doctor but failed, and thereupon called an ambulance and sent respondent to the City Hospital where a part of one finger was amputated and treatment was given to him for his injuries. Respondent was later treated by Dr. Leo Will for his injuries, but since there is no complaint as to the nature or extent of his disability nor as to the amount of the doctor bill, it is unnecessary to go into detail on those questions.

It further appears from the evidence that, under his oral agreement with the Carson Company, respondent was to furnish the materials, oil, grease and parts, except on major repairs, as to which it was agreed there would be extra charges; that respondent was to use his own tools in carrying on his work; that the Carson Company was the only customer respondent had at that time, but that he was soliciting new accounts; that when respondent called to service or repair the elevators, no one gave him any directions and he knew that the Carson Company had no one competent to advise him on such work.

Mr. Alexander H. Fihn, president of the Carson Company, testified that the business of the company was that of retailers of furniture and kindred lines; that the company was not in any way engaged in the elevator repair business; that he made the agreement with respondent because he knew respondent had taken care of the elevators when he was with the Miller Elevator Company.

Mr. Fihn further testified that the second proposed agreement was written up by one of his stenographers on July 31, 1939, in accordance with the oral agreement he had with respondent, but it was never signed by respondent prior to the accident; that, after the first agreement was in effect, there was a misunderstanding over a bill submitted by respondent and respondent adjusted the bill, and Mr. Fihn stated he did not want anything like that to come up in the future; that the second agreement was for respondent to take care of the elevators and furnish all parts and look after the elevators in their entirety, with respondent to furnish oil, grease and everything including tools; that there were no prescribed hours in which to do the work and respondent was not required to punch a time clock; that the Carson Company's only interest in the time spent on the premises by respondent was to have him spend as little time as possible; that the only thing he told respondent was to get the elevators running and...