McKay v. Delico Meat Products Co.

• Decision Date: 07 September 1942
• Docket Number: 38469
• Citation: 174 S.W.2d 149,351 Mo. 876
• Parties: Mary E. McKay, Administratrix of the Estate of Lee McKay, Deceased, v. Delico Meat Products Company, a Corporation, Appellant
• Court: Missouri Supreme Court

174 S.W.2d 149

351 Mo. 876

Mary E. McKay, Administratrix of the Estate of Lee McKay, Deceased, v. Delico Meat Products Company, a Corporation, Appellant

No. 38469

Supreme Court of Missouri

September 7, 1942

Rehearing Denied October 4, 1943.

Appeal from Jackson Circuit Court; Hon. Marion D. Waltner Judge.

Reversed.

Stanley Garrity and John W. Oliver for Delico Meat Products Company; McCune, Caldwell, Downing & Noble of counsel.

(1) Plaintiff's own evidence and the undisputed facts showed conclusively as a matter of law that plaintiff was an employee of defendant, rather than an independent contractor so that any remedy possessed by plaintiff was thereby vested in the exclusive jurisdiction of the Workmen's Compensation Commission. Cummings v. Union Quarry & Construction Co., 231 Mo.App. 1224, 87 S.W.2d 1039; DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640; State ex rel. Natl. Lead Co. v. Smith, 134 S.W.2d 1061; Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 109 S.W.2d 58; Sec. 2, Restatement of Law of Agency; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Hartwig-Dischinger Realty Co. v. Unemployment Compensation Commission, 168 S.W.2d 78; Miller v. St. Louis Realty & Securities Co., 103 S.W.2d 510; Vaseleou v. St. Louis Realty & Securities Co., 344 Mo. 1121, 130 S.W.2d 538; Kirby v. Nolte, 349 Mo. 1015, 164 S.W.2d 1; Blaine v. Huttig Sash & Door Co., 232 Mo.App. 870, 105 S.W.2d 946; Mangiaracino v. Laclede Steel Co., 347 Mo. 36, 145 S.W.2d 388; Jeremiah 13:23; Tindall v. Marshall's U.S. Auto Supply Co., 348 Mo. 1189, 159 S.W.2d 302; Pfitzinger v. Shell Pipe Line Corp., 226 Mo.App. 861, 46 S.W.2d 955. (2) The trial court erred in sustaining plaintiff's objections to questions asked witness Kahmann, in excluding said Kahmann's testimony, and in refusing defendant's offer of proof regarding the fact that both plaintiff and defendant were under and subject to the Workmen's Compensation Act and that defendant carried and paid the premium on a Workmen's Compensation insurance policy, as required by the Workmen's Compensation Act, which policy covered all of defendant's employees, including plaintiff, for the reason that said testimony and offer of proof was material, relevant and competent to the issues raised by the pleadings. Baker v. Scott County Milling Co., 323 Mo. 1089, 20 S.W.2d 494; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; Doherty v. Doherty, 155 Mo.App. 481, 134, S.W. 1112; 32 C. J. S., p. 729, sec. 802; Firestone Service Stores, Inc., v. Wynn, 179 So. 175; Western & Southern Life Ins. Co. v. Spencer, 95 Ind.App. 281, 179 N.E. 794; Citizens' & Southern Bank v. Seigler, 167 Ga. 657, 146 S.E. 485. (3) The trial court erred in refusing to give and read to the jury defendant's Instruction marked H, then and there requested, for the reason that he erroneously assumed that plaintiff had made a factual case for the jury on the theory that plaintiff was an independent contractor, and then refused to submit to the jury defendant's factual defense that plaintiff was an employee of defendant, rather than an independent contractor, so that any remedy possessed by plaintiff was within the exclusive jurisdiction of the Workmen's Compensation Commission. (4) The trial court erred in giving and reading to the jury, at the plaintiff's insistence and request, Instruction marked 1, for the reason that said instruction, although purporting to cover the whole case, failed to state all of the essential elements necessary for recovery, in that the status of plaintiff as an employee of defendant, or his status as an independent contractor, was completely omitted; for the further reason that said instruction completely ignores the pleaded defense that plaintiff was an employee of defendant, so that any remedy possessed by plaintiff was within the exclusive jurisdiction of the Workmen's Compensation Commission; and for the further reason that said instruction is so misleading as to be prejudicial error in that it failed to cover the entire situation, left in doubt the real issues and confused the jury as to the applicable rules of law. Thompson v. St. Louis Ry. L. H. & P. Co., 345 Mo. 31, 131 S.W.2d 574; State ex rel. North British & Mercantile Ins. Co. v. Cox, 307 Mo. 194, 270 S.W. 113; 17 C. J. S., p. 291; Dougherty-Moss v. Churchill, 114 Mo.App. 578, 87 S.W. 1014; Freeman v. Berberich, 324 Mo. 831, 60 S.W.2d 393; Pevesdorf v. Union Electric L. & P. Co., 333 Mo. 1155, 64 S.W.2d 939.

Henry W. McFeely, J. B. McFarland and Walter A. Ragmond for respondent.

(1) Defendant's demurrers to the evidence were properly overruled. The evidence adduced did not bring the case within the jurisdiction of the Missouri Workmen's Compensation Commission as contended by defendant. Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; State ex rel. Ebert v. Trimble, 333 Mo. 711, 63 S.W.2d 83; State ex rel. St. Louis Car Co. v. Hostetter, 345 Mo. 102, 131 S.W.2d 558. (2) There was no "accident" within the meaning of the Workmen's Compensation Act. Sec. 3695(b), R. S. 1939; Joyce v. Luse-Stevenson Co., 346 Mo. 58, 139 S.W.2d 918; Row v. Cape Girardeau Foundry Co., 141 S.W.2d 113; Downey v. Kansas City Gas Co., 338 Mo. 803, 92 S.W.2d 580; Carter v. Priebe & Sons, 77 S.W.2d 171; State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40; Knaup v. Western Coal & Mining Co., 342 Mo. 210, 114 S.W.2d 969; Gholson v. Scott, 130 S.W.2d 216; State ex rel. Natl. Lead Co. v. Smith, 134 S.W.2d 1061. (3) The work in which plaintiff was engaged in remodeling defendant's plant was but casual and not incidental to the operation of the usual business of the defendant. Sec. 3693, R. S. 1939; Pitts v. Maupin, 230 Mo.App. 221, 88 S.W.2d 384; Rucker v. Blanke Baer Extract & Preserving Co., 162 S.W.2d 345; Gholson v. Scott, 130 S.W.2d 216; Cummings v. Union Quarry & Constr. Co., 231 Mo.App. 1224, 87 S.W.2d 1039; Tokash v. General Baking Co., 349 Mo. 767, 163 S.W. 554. (4) Plaintiff was an independent contractor as to whom the Workmen's Compensation Act had no application. Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174; State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457; Miller v. St. Louis Realty & Securities Co., 103 S.W.2d 510; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Barnes v. Real Silk Hosiery Mills, 341 Mo. 563, 108 S.W.2d 58; Bass v. K. C. Journal Post Co., 347 Mo. 681, 148 S.W.2d 548; Garcia v. Vix Ice Cream Co., 147 S.W.2d 141; O'Brien v. Rindskopf, 334 Mo. 1233, 70 S.W.2d 1085; Kourik v. English, 340 Mo. 367, 100 S.W.2d 901; Smith v. Grace, 159 S.W.2d 383; Bobbitt v. Enlers, 131 S.W.2d 900; State ex rel. Chapman v. Shain, 347 Mo. 308, 147 S.W.2d 457; Dorsett v. Pevely Dairy Co., 124 S.W.2d 624. (5) The trial court did not err in refusing to permit defendant's office manager to testify defendant paid the compensation insurance premiums on plaintiff and his men. Morse v. Potosi Tie & Lumber Co., 130 S.W.2d 477; Ross v. St. Louis Dairy Co., 339 Mo. 982, 98 S.W.2d 717; Dorsett v. Pevely Dairy Co., 124 S.W.2d 624; Reiling v. Missouri Ins. Co., 153 S.W.2d 79; Kansas City Structural Steel Co. v. Utilities Bldg. Corp., 339 Mo. 68, 95 S.W.2d 1176; Gates v. Dr. Nichols' Sanitarium, 331 Mo. 754, 55 S.W.2d 424. (6) The court committed no error in refusing defendant's requested Instruction H. Bass v. K. C. Journal Post Co., 347 Mo. 681, 148 S.W.2d 548; Garcia v. Vix Ice Cream Co., 147 S.W.2d 141; Owens v. McCleary, 313 Mo. 213, 281 S.W. 682; Clason v. Lenz, 332 Mo. 1113, 61 S.W.2d 727; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 907; Schipper v. Brashear Truck Co., 132 S.W.2d 993. (7) The trial court committed no error in giving plaintiff's Instruction I. Gately v. St. Louis-S. F. Ry. Co., 332 Mo. 1, 56 S.W.2d 54; Stanton v. Jones, 332 Mo. 631, 59 S.W.2d 648; Chenoweth v. Southerland, 129 Mo.App. 431, 107 S.W. 6; Lawbaugh v. Mining Co., 202 S.W. 617; Raymond, Missouri Instructions, secs. 35, 36, 125; Stokes v. Godefroy Mfg. Co., 85 S.W.2d 434; Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

Action for $ 30,000 damages for personal injuries sustained by Lee McKay, the original plaintiff, on account of alleged negligence of defendant. The jury returned a verdict for plaintiff for $ 10,000, upon which judgment was entered, and defendant appealed.

The death of plaintiff Lee McKay, subsequent to the date of the appeal, has been suggested and Mary E. McKay, his widow, the duly appointed, qualified and acting administratrix of his estate, has been substituted as respondent. For convenience we shall refer to the original parties as plaintiff and defendant.

Plaintiff charged that during the month of March, 1940 and on the first and second days of September, 1940, while he was employed under contract to work in and about defendant's buildings in the making of certain repairs, the defendant carelessly and negligently caused and permitted dangerous and injurious quantities of smoke, poisonous gases and fumes to escape into and remain in the interior of the buildings where plaintiff was required to work; that plaintiff complained thereof to defendant; that said fumes and gases were destructive of the tissues of the human body; that defendant negligently an untruthfully represented that said smoke, gases and fumes were harmless; that plaintiff had had no experience working in smoke, gases and fumes and, relying upon defendant's assurance that they were harmless, continued with his work breathing and inhaling the smoke, gases and fumes; and that as a direct result he received severe and lasting personal injuries, which he ...