March v. Bernardin

• Citation: 76 S.W.2d 706,229 Mo.App. 246
• Parties: ANTHONY MARCH, RESPONDENT, v. J. M. BERNARDIN, RECEIVER, ETC., APPELLANT
• Decision Date: 13 November 1934
• Court: Court of Appeals of Kansas

76 S.W.2d 706

229 Mo.App. 246

ANTHONY MARCH, RESPONDENT, v. J. M. BERNARDIN, RECEIVER, ETC., APPELLANT

Court of Appeals of Missouri, Kansas City

November 13, 1934

Appeal from Circuit Court of Macon County.--Hon. Vernon L. Drain Judge.

Judgment affirmed.

Hunter & Chamier for respondent.

Walter C. Goodson for appellant.

OPINION

BLAND J.

--This is an appeal from a judgment affirming an award of the compensation commission. The award was in favor of the claimant and was in a sum totalling $ 2304.98.

It is claimed by defendant that claimant's employment with him was of a character not incidental to the operation of defendant's usual business, that of coal mining and also that the employment was casual (see Section 3303, R. S 1929).

The facts show that defendant operated a coal mine at Bevier having located on the premises four boilers which were used for hoisting purposes and probably, also, for heating. It was while plaintiff was working on one of these boilers, under an employment by the defendant, that he was injured.

Claimant and his helper went to work on Saturday morning and worked Sunday until about noon, when a piece of metal flew into claimant's eye while he was chipping the boiler shell. The accident resulted in the loss of his eye. He did not work the rest of the day because he had no material, but resumed work the next morning (Monday) and completed the job on the Tuesday following.

It appears that claimant was a boiler maker by profession but, up to a few days prior to doing the work for defendant, had been digging coal at another mine. He had no shop. The tools that he used in doing the work for defendant were partly his own and partly that of defendant. The work was such that it required the services of an expert and defendant had no one qualified among his employees to do such work. Claimant, also, needed an expert helper and defendant agreed that he was to furnish his own helper. Claimant testified that he had "absolute control" of his helper and could discharge him any time he pleased. "I was at liberty to get who I wanted." He and his helper worked on an hourly wage basis and their time was turned in to defendant by claimant at the end of the work and payment was made by defendant. The two worked thirty-seven hours. Claimant procured and paid for the material that went into the work and he was afterwards recompensed for the actual amount of his outlay therefor. However, the reason that claimant purchased the material was because it was thought by defendant that he could procure it sooner than the defendant. Claimant had entire control of the work and was in no manner advised by any employees of the defendant during the course thereof.

The evidence shows that boilers in use sooner or later require repairing; that the boilers of the defendant needed repairing about once a year and that this repairing "is a part of the usual routine business of the company;" that claimant had been repairing boilers for the defendant and the company, for which defendant is the receiver, off and on for two or three years prior to the accident and altogether had put about four patches on them; that there may have been other boiler makers who did work on defendant's boilers but apparently claimant was usually called to perform that work. The work would require only a few days and, of course, claimant's employment by defendant was not continuous.

It was defendant's desire to resume operations at the mine on December 6, 1932. The work at the mine could probably have been carried on by the use of the three boilers that were in repair, but none of the boilers could be conveniently repaired while the mine was in operation. The foreman testified, however, that "they (defendant) needed the boiler." There is a dispute as to whether there was an agreement as to the time in which the repairs on the boiler were to be completed. The foreman testified that this was to be on December 6 while claimant testified that there was no understanding on this subject; that the only agreement with reference to the matter was that he and his helper were to work eight or nine hours and, if necessary, he was to work a week or more on it; that the job was to be finished "as soon as we could."

We think there is no question but that the employment of the claimant was incidental to the operation of the usual business of the defendant.

In the case of Utah Copper Co. v. Industrial Comm., 57 Utah 118, 193 P. 24 (cited with approval by the Supreme Court of this State in McFall v. Barton-Mansfield Co., 61 S.W.2d 911, 916), the facts disclosed that the Utah Copper Company was engaged in the mining business and procured water for the operation of its mine from a canal; that claimant was injured, not while employed at the work of mining but while repairing the canal; that it was the custom, when repairs were required to be made on the canal, for men to be employed by the copper company from any place where they could be obtained; that ordinarily farmers who resided near the canal were hired for the work; that deceased was one of these farmers; that he had been employed once before the time he was killed for a short period of time to assist in the work on the canal; that he had worked one day and part of the next when he received an injury resulting in his death. The court said, l. c. 130:

"Any one employed in constructing or repairing a ditch or other means of conveying water used in the business of the appellant is just as definitely employed and engaged in the usual occupation or business of the employer as is a machinist engaged in assembling or repairing a machine operated in taking ore from the company's mines."

. . . .

"It must, therefore, in our judgment, necessarily follow that one employed as was the deceased in making repairs on that canal was engaged in an employment necessary in conducting the usual business of the company." (Italics ours.)

It is claimed by the defendant that:

"The evidence reveals that the cause for the hiring of the respondent employee, in this case was the accidental, unexpected, unusual chance occurrence of a boiler springing a leak, and the employment of respondent was for a limited, definite time of a few hours to do a particular job or specific kind of work of putting on a boiler patch. Under all the facts in this case the employment was casual."

This...