Lee v. Oreon E. & R. G. Scott Realty Co.

• Decision Date: 15 September 1936
• Docket Number: No. 23985.,23985.
• Citation: 96 S.W.2d 652
• Court: Missouri Court of Appeals
• Parties: LEE v. OREON E. & R. G. SCOTT REALTY CO. et al.

96 S.W.2d 652

LEE v. OREON E. & R. G. SCOTT REALTY CO. et al.

No. 23985.

St. Louis Court of Appeals. Missouri.

September 15, 1936.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

"Not to be published in State Reports." ports."

Proceeding under the Workmen's Compensation Law by James J. Lee, employee, opposed by the Oreon E. & R. G. Scott Realty Company, employer, and the Aetna Insurance Company, insurer. From a judgment of the Circuit Court affirming an award of compensation, the defendants appeal.

Affirmed.

Luke & Cunliff, of St. Louis, for appellants.

W. C. McLaughlin, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for compensation under the Workmen's Compensation Law (Mo.St.Ann. § 3299 et seq., p. 8229 et seq.).

The Ætna Insurance Company is the insurer of the employees of Oreon E. & R. G. Scott Realty Company.

Plaintiff suffered an accidental injury while working in the basement of a building known as the Blackburn Apartments, located at 4471 Olive street, in St. Louis. His injury resulted from an electric shock received while inspecting a switchboard. It appears that Oreon E. Scott was the owner of the Blackburn Apartments, but the apartments were under the management of the Oreon E. & R. G. Scott Realty Company.

The Compensation Commission found that plaintiff was in the employ of Oreon E. & R. G. Scott Realty Company at the time he was injured, and awarded him compensation accordingly, in the sum of $118.24, for temporary total disability. From the award of the commission the defendants appealed to the circuit court. From the judgment of the circuit court, affirming the award of the commission, defendants have appealed to this court.

Defendants here contend that the plaintiff was not in the employ of the Oreon E. & R. G. Scott Realty Company at the time of his injury, but was in the employ of Oreon E. Scott. In other words, defendants contend that, though plaintiff was employed by the Oreon E. & R. G. Scott Realty Company, their employment of him was as agents of Oreon E. Scott, and for his benefit, and that plaintiff thereby became the employee of Oreon E. Scott, and not the employee of the Oreon E. & R. G. Scott Realty Company. Defendants also make the further contention that if plaintiff was in the general employment of Oreon E. & R. G. Scott Realty Company he was at the time of his injury in the special employment of Oreon E. Scott to whom he had been lent by the realty company. So that Oreon E. Scott, and not the realty company, must be regarded as the employer of plaintiff at the time of his injury.

The compensation law, section 3304, R. S.1929 (Mo.St.Ann. § 3304, p. 8238), provides that the word "employer" shall be construed to mean: "Every person, partnership, association, corporation, trustee, receiver, * * * and every other person, * * * using the service of another for pay."

Section 3307 (Mo.St.Ann. § 3307, p. 8242), provides that if the injury occurs while the employee is in the joint service of two or more employers, their liability shall be joint and several, and the employee may hold any or all of such employers.

Definitions of "employer," or statements as to who shall be deemed an employer, are always broadly or liberally construed. Acme Window Cleaning Co. v. Industrial Commission, 352 Ill. 645, 186 N.E. 482; Costley v. Nevada Industrial Insurance Commission, 53 Nev. 219, 296 P. 1011; Johnson v. Wisconsin Lumber & Supply Co., 203 Wis. 304, 234 N.W. 506, 72 A.L.R. 1279; Gunnoe v. Glogora Coal Co., 93 W.Va. 636, 117 S.E. 484; Cobb v. Standard Accident Insurance Co. (Mo. App.) 31 S.W.(2d) 573.

It is generally held by the courts in construing compensation laws in other jurisdictions that one who although acting for another engages an employee in his own name without disclosing his principal is liable as an employer for compensation, and the employee upon learning the facts may elect as to which party he will hold liable. Holloway v. Industrial Commission, 34 Ariz. 387, 271 P. 713; Zurich General Accident & Liability Ins. Co. v. Division of Industrial Accidents and Safety, 99 Cal.App. 767, 279 P. 473; Scott v. O. A. Hankinson & Co., 205 Mich. 353, 171 N.W. 489; Frandsen v. Industrial Commission, 61 Utah, 354, 213 P. 197.

The decisions as to who is liable for compensation to a lent employee are to some extent inharmonious, but the common-law principle, that an employee who is lent with his consent to another master becomes the employee for the time being of him to whom he is lent, has been held to apply to cases under compensation laws, and the general rule seems to be that where one lends his employee to another for a particular employment and the employee becomes subject to the direction and control of the person to whom he is lent, the employee, for anything done in that employment, must, although he remains the general employee of the person who lent him, be dealt with as the employee of the person to whom he is lent. And, according to some authorities, where such dual relationship exists, an employee injured in the special employment may be granted compensation as against either employer. Rhinelander Paper Co. v. Industrial Commission, 206 Wis. 215, 239 N.W. 412; Parsons v. M. J. Daly & Sons, 114 Conn. 143, 158 A. 216; Maryland Casualty Co. v. Donnelly (Tex.Civ.App.) 50 S.W.(2d) 388; De Noyer v. Cavanaugh, 221 N.Y. 273, 116 N.E. 992; Independence Indemnity Co. v. Industrial Accident Commission, 203 Cal. 51, 262 P. 757; Schweitzer v. Thompson & Norris Co., 229 N.Y. 97, 127 N.E. 904.

In the present case the evidence shows that plaintiff received the injury for which he seeks compensation on August 15, 1933. He had been in the employ of the Oreon E. & R. G. Scott Realty Company for several years. Sam Doty, an employee of the realty company, in charge of the rental department, was his immediate superior. Mr. Doty hired him. He got all his orders and instructions from Mr. Doty. His salary at the time of his injury was $85 per month, which was paid to him by the realty company. He resided at the Pettingill Apartments at 5630 Pershing avenue. He had the use of this...