Maltz v. Jackoway-Katz Cap Co.

• Citation: 82 S.W.2d 909,336 Mo. 1000
• Parties: Fannie Maltz, dependent of Harry Maltz, v. Jackoway-Katz Cap Company and Superior Hat Company, Employers, and American Employers' Liability Insurance Company and Consolidated Underwriters, Insurers, Appellants
• Decision Date: 17 April 1935
• Court: United States State Supreme Court of Missouri

82 S.W.2d 909

336 Mo. 1000

Fannie Maltz, dependent of Harry Maltz, v. Jackoway-Katz Cap Company and Superior Hat Company, Employers, and American Employers' Liability Insurance Company and Consolidated Underwriters, Insurers, Appellants

Supreme Court of Missouri

April 17, 1935

Rehearing Denied February 8, 1935.

Transfer to Court In Banc Denied April 17, 1935.

Appeal from Circuit Court of City of St. Louis; Hon. Henry A Hamilton, Judge.

Affirmed.

Jones Hocker, Sullivan, Gladney & Reeder and Warren F. Drescher, Jr., for Jackoway-Katz Cap Company and American Employers' Liability Insurance Company.

(1) The findings of fact and award of the Missouri Workmen's Compensation Commission are in the nature of a special verdict and are conclusive upon appeal if supported by substantial, competent evidence. Sec. 3342, R. S. 1929; Crutcher v. Curtis-Robinson Airplane Co., 331 Mo. 169, 52 S.W.2d 1019; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Jones v. Century Coal Co., 46 S.W.2d 196; Fischer v. Stephens College, 47 S.W.2d 1101; Barlow v. Shawnee, 48 S.W.2d 47. (2) The court, in a cause appealed from the commission, must view the evidence most favorable to the award, and will draw every reasonable inference of fact from such evidence in support of the award. Shroyer v. Mo. Live Stock Comm. Co., 332 Mo. 1219; Crutcher v. Curtis-Robinson Airplane Co., 331 Mo. 169, 52 S.W.2d 1019; Jones v. Century Coal Co., 46 S.W.2d 196; Schulte v. Tea & Coffee Co., 43 S.W.2d 832; Hammack v. West Plains Lumber Co., 30 S.W.2d 650; Wheat v. Whitney & Son, 34 S.W.2d 158; Bise v. Tarlton, 35 S.W.2d 994; State ex rel. Probst v. Haid, 62 S.W.2d 871. (3) Independent contractors are not covered by the Missouri Workmen's Compensation Act, and while the term "employee" is defined by the act, the term "independent contractor" is not defined. Hence the term "independent contractor" must be given the meaning which it had at common law. Mallinger v. Webster City Oil Co., 234 N.W. 254; Jones v. Century Coal Co., 46 S.W.2d 196; Fischer v. Stephens College, 47 S.W.2d 1101. (a) At common law the test for determining whether or not a person was an employee or an independent contractor was whether or not the alleged employer reserved the right to control the method and details of the work. Fink v. Furnace Co., 82 Mo. 276; Schroer v. Brooks, 204 Mo.App. 567; Jones v. Century Coal Co., 46 S.W.2d 196; Fischer v. Stephens College, 47 S.W.2d 1101; Coul v. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758; Flori v. Dolph, 192 S.W. 849; McGrath v. St. Louis, 215 Mo. 191; Hoelker v. American Press Co., 317 Mo. 64, 296 S.W. 1008. (4) The evidence in the record clearly shows that the relationship of independent contractor existed as between the appellants and the deceased Harry Maltz. There is sufficient competent evidence in the record to support the finding of the commission to the effect that Maltz was not subject to the control, supervision or direction of the Jackoway-Katz Cap Company, but was free to pursue his own work at his own discretion, in his own way, and at such times and places within the territory as he chose. Such evidence supports the finding that he was an independent contractor. Peters v. California B. & L. Assn., 2 P.2d 439; Associated Indemnity Corp. v. Ind. Comm., 2 P.2d 51; Maryland Casualty Co. v. Ind. Comm., 298 P. 275; Child's Case, 174 N.E. 211; Bradley's Case, 169 N.E. 156; Schofield's Case, 172 N.E. 346; Badger v. Ind. Comm., 227 N.W. 288; Royal Indemnity Co. v. Ind. Comm., 285 P. 912; Hy. Haertel Service, Inc., v. Ind. Comm., 248 N.W. 430; Mallory v. Louisville Ice & Supply Co., 6 S.W.2d 617, 320 Mo. 623; Meyer v. Adams, 50 S.W.2d 744; Carman v. Western Central Dairy Co., 58 S.W. 781; Woodruff v. Superior Mining Co., 70 S.W.2d 1105; Jones v. Century Coal Co., 46 S.W.2d 196.

Fordyce, White, Mayne & Williams and G. C. Stribling for Superior Hat Company and Consolidated Underwriters.

(1) The findings of fact and awards of the Missouri Workmen's Compensation Commission are in the nature of a special verdict and are conclusive upon appeal if supported by any substantial competent evidence. Leilich v. Chevrolet Motor Co., 40 S.W.2d 601, 328 Mo. 112; Elsas v. Montgomery Elevator Co., 50 S.W.2d 130, 330 Mo. 596; Crutcher v. Curtis-Robinson Airplane Co., 52 S.W.2d 1019, 331 Mo. 169; Doughton v. Marland Refining Co., 53 S.W.2d 236, 331 Mo. 280. (2) The commission's finding that the relationship between the deceased and the appellant is that of independent contractor and not employee and employer being made upon conflicting evidence, was a finding of fact which could not be disturbed if supported by any substantial competent evidence. Mallory v. Louisiana Ice & Supply Co., 6 S.W.2d 617, 320 Mo. 623; Meyer v. Adams, 50 S.W.2d 744; Carman v. Western Central Dairy Co., 58 S.W. 781; Woodruff v. Superior Mining Co., 70 S.W.2d 1105; Jones v. Century Coal Co., 46 S.W.2d 196. (3) This court on appeal will look only to the evidence most favorable to support the award and findings of fact of the commission, and will draw every reasonable inference of fact from such evidence in support of the award. Crutcher v. Curtis-Robinson Airplane Co., supra; Shroyer v. Mo. Livestock Commission Co., 61 S.W.2d 713. (4) The evidence in the record clearly shows that the relationship of independent contractor existed as between the appellant and the deceased, Harry Maltz. Hy. Hartel Service, Inc., v. Industrial Comm., 211 Wis. 455, 248 N.W. 430; Peters v. California B. & L. Assn., 2 P.2d 439, 116 Cal.App. 143; Badger Furniture Co. v. Industrial Comm., 227 N.W. 288, 200 Wis. 288; Royal Indemnity Co. v. Industrial Accident Comm., 285 P. 912, 104 Cal.App. 290. (5) Where there are no definite hours of work, and the right to control the details of the manner of accomplishing the work is not retained, the relationship between the parties is that of independent contractor. Coul v. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758; Flori v. Dolph, 192 S.W. 949; McGrath v. St. Louis, 215 Mo. 210; Hoelker v. American Press Co., 317 Mo. 64, 296 S.W. 1008.

Fisher & Aronoff and Robert L. Aronson for respondents.

(1) Where the facts are undisputed the ultimate question presented is one of law, and not one of facts; and the ruling of the Compensation Commission upon such facts is therefore reviewable by the courts. Russell v. Ely & Walker Dry Goods Co., 60 S.W.2d 44; Seifert v. Heil Packing Co., 52 S.W.2d 579; Hoffman v. Railroad Co., 63 S.W.2d 427; Sawtell v. Stern Bros. & Co., 44 S.W.2d 264; Thurman v. Fleming-Young Coal Co., 49 S.W.2d 288. (2) The statutory definition of "employee" which is prescribed in the Compensation Law must be applied. Sec. 3305a, R. S. 1929; Pruitt v. Harker, 43 S.W.2d 769; Thurman v. Fleming-Young Coal Co., supra; Elihinger v. Wolf House Furn. Co., 72 S.W.2d 144. (a) Said definition and all other provisions of the statute must be given a liberal construction. Sec. 3374, R. S. 1929; Ransdell v. International Shoe Co., 44 S.W.2d 1; Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Pruitt v. Harker, supra; Sawtell v. Stern Bros & Co., supra; Barlow v. Shawnee Inv. Co., 48 S.W.2d 48. (b) Any doubt as to right of compensation should be resolved in favor of the employee. Betz v. Columbia Tel. Co., 224 Mo.App. 1004, 24 S.W.2d 224; Carrigan v. Western Radio Co., 44 S.W.2d 245; Kinyon v. Kinyon, 71 S.W.2d 78; Keithley v. Stone & Webster Eng. Corp., 49 S.W.2d 296. (3) Under the statutory definition the award must be in favor of claimants. Sec. 3305(a), R. S. 1929; Fischer v. Stephens College, 47 S.W.2d 1101; Wahlig v. Krenning-Schlapp Gro. Co., 325 Mo. 677, 29 S.W.2d 128; Leilich v. Chevrolet Motor Co., supra; Sawtell v. Stern Bros. & Co., supra; Newman v. Rice-Stix Dry Goods Co., 73 S.W.2d 264. (a) One employee can be in the service of two employees simultaneously. Sec. 3307, R. S. 1929; Taylor v. St. Paul's Universalist Church, 145 A. 887; Western Metal Supply Co. v. Pillsbury, 156 P. 491; Sargent v. Knowlson, 224 Mich. 686, 195 N.W. 810; Murphy Supply Co. v. Fredrickson, 239 N.W. 420; Press Publishing Co. v. Industrial Comm., 210 P. 820. (4) Even according to common-law standards the decedent was an employee, rather than an independent contractor, under the undisputed evidence. Kinsman v. Hartford Courant Co., 94 Conn. 156, 108 A. 562; Easton v. Industrial Acc. Comm., 167 P. 268; Mallinger v. Webster City Oil Co., 234 N.W. 254; Nestle's Food Co. v. Industrial Comm., 237 N.W. 117; cases under point 3. (5) Even an independent contractor is within the protection of our Compensation Law, under the facts in this case. Sec. 3308(a), R. S. 1929; Meyer v. Adams, 50 S.W.2d 744; Simpson v. New Madrid Stave Co., 52 S.W.2d 615; Woodruff v. Superior Mineral Co., 70 S.W.2d 1104; Pruitt v. Harker, supra; Cobb v. Standard Acc. Ins., 31 S.W.2d 575. (a) As to an employee who, by the nature of his work, is compelled to travel about, the premises of the employer is any place where it is necessary for him to be. Simpson v. New Madrid Stave Co., supra; Wahlig v. Krenning-Schlapp Gro. Co., supra; Newman v. Rice-Stix Dry Goods Co., supra; Hebbeler v. St. Louis Pub. Serv. Co., 72 S.W.2d 130; Tierney v. Northwestern Bell Tel. Co., 114 Kan. 706, 220 P. 192.

OPINION

Hays, J.

Appeal by employers and their insurers from a judgment of the Circuit Court of the City of St. Louis reversing an order of the Workmen's Compensation Commission denying compensation to the dependents of Harry Maltz, deceased.

By the claim filed and amended the dependent widow and minor children of the deceased sought compensation in the sum of $ 10,660 on account of his death by accident while plying his vocation...