McCaleb v. Greer
| Citation | 267 S.W.2d 54,241 Mo.App. 736 |
| Decision Date | 07 April 1954 |
| Docket Number | No. 7226,7226 |
| Parties | McCALEB v. GREER et al. |
| Court | Court of Appeal of Missouri (US) |
Breuer & Northern, Rolla, for appellants.
David E. Horn, St. Louis, for respondent.
This appeal is from a judgment of the Circuit Court of Dent County, Missouri, reversing an order made by the Industrial Commission of Missouri, denying compensation to claimant on the ground that claimant was a farmer and that his employer had not, at the time of accident, elected to accept and include thereunder employments of farm labor and, therefore, the Commission was without jurisdiction in this cause.
A report of injury of claimant, John McCaleb, was filed with the Division of Workmen's Compensation, Department of Labor and Industrial Relations of Missouri, October 19, 1951, signed by Vesta L. Greer, stating that John McCaleb had been injured in an accident October 13, 1951. This report listed the insurer as 'The Travelers Insurance Company' and the business of the employer as real estate broker.
On November 23, 1951, claimant, John McCaleb, filed with the Commission his claim for compensation for injuries sustained on a farm in Dent County. He stated he was on a supervisory which he made about twice monthly to look over hogs and stock and give instructions to part time or casual helpers and to take feed to hogs; that while he was turning away from watching hogs feed, stepped backward into a pile of lumber, catching foot therein, leg doubled back under him as he fell; that his right leg was broken in three places.
Answer was filed by Mrs. Vesta L. Greer, employer, and The Travelers Indemnity Company, insurer, denying that the injury is within the jurisdiction of the Workmen's Compensation Commission for the reason that employee was engaged in farm labor and the employer had not filed an acceptance of the act in that respect.
On April 15, 1952, the cause was heard by the Referee of the Division of Workmen's Compensation and award made in favor of claimant for temporary or partial compensation against the employer and the insurer. This award was made June 4, 1952. The referee, at this hearing, found that Vesta L. Greer was a minor employer who had accepted the provisions of the Missouri Workmen's Compensation law prior to October 13, 1951; that John McCaleb was an employee of Vesta L. Greer and working under the provisions of the Missouri Workmen's Compensation law on October 13, 1951, and that he was not engaged in farm labor.
June 6, 1952, the Travelers Indemnity Company filed an application for review to the Industrial Commission of Missouri by the full Commission. In this application for review the insurer stated 'that the award is not according to the law and the evidence as set forth in Section 287.090 R.S.Mo. 1949 [V.A.M.S.] and no election had been filed at time of accident regarding farm operations'.
On September 4, 1952, a final award was made by the Industrial Commission of Missouri reversing on review the award dated June 4, 1952, and denying compensation. In this award the Commission made the following finding:
'We find from all the evidence that Vesta L. Greer, employer herein, was a minor employer operating under the provisions of the Missouri Workmen's Compensation Law but had not, at the time of the accident herein, elected to accept and include thereunder employments of farm labor, as provided by Sections 287.090-1(2) and 287.090-2, R.S.Mo.1949 [V.A.M.S.].
The cause was appealed to the Circuit Court of Dent County, September 23, 1952, and judgment rendered May 18, 1953, as follows:
'Court finds that the final award of the Commission should be reversed and set aside, and cause remanded to the Commission for further determination not inconsistent with this finding.'
From this judgment the cause was appealed to this court.
Two questions are presented to the court for decision. First, was claimant engaged in farm labor at the time of injury?
Secondly, did the election of Vesta L. Greer, as minor employer made December 23, 1943, to come under the Workmen's Compensation law extend its coverage to claimant without regard as to whether he was engaged in farm labor at the time of his injury?
The facts are undisputed. John McCaleb is a resident of St. Louis. October 13, 1951, he was an employee of Vesta L. Greer for whom he had worked twenty years. He was first a chauffeur and about 1937 he became a manager and supervised all the work in buying and selling of property and appraised property for his employer in St. Louis.
Mrs. Vesta L. Greer was engaged in the real estate business, speculation in real estate, real estate broker and guest home operations on October 13, 1951. She testified that McCaleb's duties were numerous. General supervision and management and estimating; that when she purchased a building to be rehabilitated claimant would estimate the amount of work and cost and general operations and that he exercised general supervision of guest homes, hired and fired the help, saw to their work and saw to the general repairs of all property she handled, not only rooming houses but all property. She stated she operated pretty well all over the state of Missouri and that claimant's work was supervisory and managerial.
Mrs. Greer testified that she purchased approximately 400 acres of land in Dent County; that there were two different tracts adjoining; that she acquired the first tract in June, 1950, and the second in January, 1951. She stated she acquired this land as a speculation; that no one lived on it during her ownership; that there was a habitable building on it. As to claimant's duties with the Dent County land she stated: * * *'
The witness stated that she acquired this property in connection with real estate business. She also stated that at no time did she ever employ more than ten employees, always less than ten; that she elected to come under the provisions of the Missouri Workmen's Compensation law about 1944 and posted notices in her office of such election. She stated she treated all of her business dealings as one business, operating in the name of 'Vesta L. Greer'.
As to claimant's duties, he stated:
He stated that his duties consisted not only in hiring the people who worked for her but in supervising their work. He testified that Mrs. Greer acquired 400 acres of land in Dent County. As to his duties he said:
He testified that Mrs. Greer was having fencing done and had a small amount of stock down there and he had to go down and pay the men for the fencing and see how they were getting along with the work and see if the stock was taken care of. He stated that he employed one, Ed Asher, to do the fencing. He testified there were possibly 50 head of hogs, 5 head of cattle, 3 horses and 1 mule; that Leonard Martin had been employed to care for them. He testified he went down Friday afternoon, October 12th, to the farm; that one, Mr. Livingston, went with him just for the ride; that he got to the farm about 8 o'clock; that he took food to the house on the farm, prepared and ate and retired that night; that on the 13th, the following day, he ate his breakfast and began his duties, which were to see the hogs and cattle and everything that was on the place; that he went over to Mr. Asher's and talked to him concerning work that should be done. He stated while there he paid Mr. Asher for what work he and the men had done and discussed the unfinished work, the work to be done the following week. He testified after he talked to Asher he came back across the field to see if he could see the hogs and cattle and if they were alright and then came back to where he stayed. He said by that time it was getting late and he was preparing to come back home. He gave this answer:
He said immediately prior to his injury, he was standing still on a slope; that the ground is rolling down there; that he was thinking about completing his work, the fencing and all those things. He gave this answer:
Then he stated: ...
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