Lawson v. Lawson

Decision Date02 May 1967
Docket NumberNo. 8615,8615
Citation415 S.W.2d 313
PartiesRonald Kirk LAWSON, Plaintiff-Appellant, v. E. L. LAWSON, a sole trader d/b/a Farmers Feed and Supply Company, and Western Casualty and Surety Company, a corporation, Defendants-Respondents.
CourtMissouri Court of Appeals

Friez & Crandall, Carthage, for plaintiff-appellant.

Edward G. Farmer, Jr., Joplin, for defendants-respondents.

STONE, Presiding Judge.

In this proceeding under the Missouri Workmen's Compensation Law (V.A.M.S. Chapter 287), claimant Ronald Kirk Lawson filed a claim for benefits on account of personal injuries said to have resulted from an accident on August 13, 1963, when he slipped and fell to the ground as he 'was going over the side' of a truck which he and one Grimmett were loading with feed from a boxcar on railway tracks near the retail feed outlet in Carthage, Missouri, owned and operated by claimant's father and alleged employer, E. L. Lawson, a sole trader doing business as Farmers Feed and Supply Company, whose liability under the Compensation Law was insured by Western Casualty and Surety Company. Claimant, then fifteen years ten months of age, was working during the summer vacation between school terms. From the outset of this proceeding, the basic issue has been as to whether or not he was an 'employee' of his father within the contemplation and meaning of the Compensation Law. Section 287.020(1). Upon hearing, the referee found that claimant was an 'employee' and made an award of compensation and medical benefits. On the insurer's application for review (Section 287.480), the Industrial Commission concluded that he was not an 'employee' and accordingly entered a final award denying compensation. The final award having been affirmed upon claimant's appeal to the Circuit Court of Jasper County, he brings the problem to us.

We extract the pertinent facts from the testimony of claimant and his father, the only two witnesses. Claimant resided with his parents on a farm west of Carthage; and, after the close of the 1962--63 school year, he worked on that farm with his paternal grandfather for about one and one-half months. When his older brother who had been working at the feed outlet entered military service during July 1963, claimant began to work there, although not every day. He agreed with employer's-insurer's counsel that 'it was sometimes just two or three days a week, or three or four days a week' but added that he worked 'anytime (my father) needed me.' 'If we weren't doing anything,' he 'sometimes . . . left (the feed outlet) in the middle of the afternoon.' Although readily acknowledging that 'some weeks (claimant) didn't work every day at the store,' the father insisted that 'I didn't excuse him very much . . . he did pretty well fill-in all the time; there wasn't too many days he missed.'

The father 'had no arrangement with (claimant) to pay him any wages,' paid no 'regular compensation' to him, did not enter his name on any payroll record, and did not report him as an employee for the withholding of income or social security taxes or for the computation of premiums by Western Casualty, the father's insurer. The father and claimant agreed that the only payments by the former to the latter were (in claimant's words) 'just my regular allowance,' the frequency and amount of those payments being indeterminable upon the record. However, the father stated that 'he (claimant) did just about anything that we needed to do'--'he was active in mixing feeds and the delivery of feeds'; and, when asked 'what kind of work' he did at the feed outlet, claimant said 'everything' including the mixing and delivery of feed, loading products into customer's vehicles, and unloading boxcars of grain. To the inquiry 'who directed his (claimant's) work,' the father replied, 'I did.' According to the father, claimant 'did similar or like work' to that done by two male employees, each of whom was paid $80 per week; and, after claimant's accident, the father 'replaced the boy (claimant)' with another male employee who was paid $70 per week.

The parties have briefed and discussed extensively the general rules applicable to appellate review in workmen's compensation cases, and it may be well to dispose of that subject first. Since many of the cases cited in the briefs were decided prior to adoption of the Missouri Constitution of 1945, we note that Article V, Section 22, thereof worked a change in the scope of review and the effect to be attributed to findings of fact by the Industrial Commission (Shrock v. Wolfe Auto Sales, Inc., Mo., 358 S.W.2d 812, 814(2)), and that the cited constitutional provisions imposed upon reviewing courts the duty to determine whether the award of the Commission is "supported by competent and substantial evidence upon the whole record." Wood v. Wagner Electric Corp., 355 Mo. 670, 674, 197 S.W.2d 647, 649. See V.A.M.S. § 287.490, subd. 1(4). This does not mean that either the circuit court or this court should substitute its own judgment on the evidence for that of the Commission; but it does authorize a reviewing court to set aside the findings and award of the Commission 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. Corp. v. Joplin Cement Co., Mo. (banc), 337 S.W.2d 252, 258(5); Conley v. Meyers, Mo., 304 S.W.2d 9, 10(2); Johnson v. Simpson Oil Co., Mo.App., 394 S.W.2d 91, 93(1).

Because this has been discussed in the briefs, we also observe that apparently the issue concerning instant claimant's status as an employee vel non presents a question of law (Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 1007, 82 S.W.2d 909, 913 (7); Saxton v. St. Louis Stair Co., Mo.App., 410 S.W.2d 369, 375(4)), although this "seems academic rather than substantial" in view of the present scope of appellate review. Shrock, supra, 358 S.W.2d at 814. Furthermore where, as in the case at bar, there was no material conflict in, or dispute concerning, the facts bearing upon claimant's status as an employee vel non, the resolution of that issue became a question of law and the Commission's determination thereof is not binding on the reviewing court. Corp, supra, 337 S.W.2d at 258(7), and cases there cited.

Of course, the Industrial Commission, or for that matter any fact-finding administrative agency, passes upon the credibility of witnesses and may decide a claim solely upon a finding of lack of credibility of uncontradicted and unimpeached testimony. Scott v. Wheelock Bros., 357 Mo. 480, 484, 209 S.W.2d 149, 151(3); Smith v. Smith, 361 Mo. 894, 901, 237 S.W.2d 84, 89(5); Arnold v. Wigdor Furniture Co., Mo., 281 S.W.2d 789, 796. See Norman v. State Department of Public Health and Welfare, Mo.App., 283 S.W.2d 143, 146(4). But there is no indication that the Commission's finding as to instant claimant's status at the time of accident was based on disbelief of the testimony of either claimant or his father. Cf. Sanderson v. Producers Commission Ass'n., 360 Mo. 571, 578, 229 S.W.2d 563, 567. Rather, it appears that the Commission simply regarded such testimony as insufficient to justify or permit a finding that claimant was an 'employee' within the meaning of the statutory definition of that term, to wit, '(t)he word 'employee' as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election . . ..' V.A.M.S. § 287.020(1).

A distinguished writer in this field opines that '(t)he definition of the term 'employee' . . . has probably produced more reported cases than any definition of status in the modern history of law' (1A Larson, Workmen's Compensation Law, § 43.10, p. 623), and certainly Missouri courts have had their fair share of this category of cases. However, our task is simplified to some extent by virtue of the fact that opposing counsel and the Industrial Commission (although disagreeing as to whether the case supports instant claimant's position) alike recognize the significance and importance of the same Missouri case, namely, Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, that being the first and principal case cited in both briefs on the issue as to claimant's status and the only case discussed in the six-page opinion (captioned 'Additional Findings of Fact and Conclusions of Law') handed down by the Industrial Commission. Hence, we examine that case in some detail.

Defendant Harker, the owner of several thousand acres of land who desired to have the timber thereon cut and sawed into merchantable lumber, purchased and placed thereon five sawmills ready for use and then contracted with five individuals, each of whom was to operate one of the sawmills at his own expense as an independent contractor, hiring and paying his own help. One of those independent contractors was William Pruitt, who employed three men at $2 per day and, with the help of his three sons, one of whom was claimant Ronie Pruitt, then sixteen years of age, operated a sawmill. Claimant Ronie was 'working for his father on account of that relation and not under any contract of employment, express or implied. His father was entitled to his services without compensation, and none was promised. (Ronie) was not working for wages, but was living with and being supported by his father . . .. He was, however, doing the work of an adult, for which (the father) was paying others $2 per day' and defendant knew, when she contracted with the father to operate the sawmill, that Ronie 'would make a hand for his father at this work.' 382 Mo. at 1209, 43 S.W.2d at 772.

When, after sustaining an injury at the sawmill, claimant Ronie sought to recover genefits under the Compensation Law from defendant Harker, her...

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