Miller v. St. Louis Realty & Securities Co.

• Decision Date: 06 April 1937
• Docket Number: No. 24320.,24320.
• Citation: 103 S.W.2d 510
• Court: Missouri Court of Appeals
• Parties: MILLER v. ST. LOUIS REALTY & SECURITIES CO. et al.

103 S.W.2d 510

MILLER v. ST. LOUIS REALTY & SECURITIES CO. et al.

No. 24320.

St. Louis Court of Appeals. Missouri.

April 6, 1937.

Rehearing Denied April 20, 1937.

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

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Law by John H. Miller, employee, opposed by the St. Louis Realty & Securities Company, employer, and the Maryland Casualty Company, insurer. From a judgment of the circuit court affirming a final award of the commission in favor of the employee, the employer and insurer appeal.

Affirmed.

R. L. Swann and Theodore J. Krauss, both of St. Louis, for appellants.

J. C. Hopewell and Luke & Cunliff, all of St. Louis, for respondent.

BENNICK, Commissioner.

This is a proceeding under the Workmen's Compensation Law (sections 3299-3376, R.S.Mo.1929, as amended, Mo.St. Ann. §§ 3299-3376, pp. 8229-8294). The appeal is by the employer and insurer from the judgment of the circuit court of the city of St. Louis affirming a final award of the commission in favor of the employee.

The issue in the case is that of the legal relationship existing between claimant and the alleged employer, that is, as to whether the claimant was an employee and, as such, entitled to claim the protection of the act, or else an independent contractor so as to be deprived of the benefit of its provisions.

The claimant, John H. Miller, was injured while engaged in making repairs to certain property located at 2913 Chouteau avenue, in the city of St. Louis, and owned by the St. Louis Realty & Securities Company, which is named as the employer in this proceeding. The nature of the work being done at the time of the accident would, of course, have excluded any idea of the application of the act in the event that Miller's status had been found to have been that of independent contractor rather than employee (section 3308 (c), R.S.Mo.1929, Mo.St.Ann. § 3308 (c), p. 8243), and counsel claim no right to compensation except upon the distinct theory of a master and servant relationship.

The St. Louis Union Trust Company, through its real estate department, acts as the agent for numerous of its clients in the matter of the management of their real estate, its duties embracing such things as the collection of rents, the payment of taxes and insurance, and the making of repairs and the like. As compensation for its services, it receives a commission upon the money that passes through its hands, and the expenses incurred in carrying out the terms of the agency are charged against the respective clients' accounts.

Among the clients of the trust company was the St. Louis Realty & Securities Company, the alleged employer in this case, which owned different pieces of property in and around St. Louis, including some five or six apartment buildings and the property at 2913 Chouteau avenue.

For twelve or fifteen years prior to the time of the accident in question, the trust company had regularly engaged the services of what was known as the Shine Company (so called after Mr. John P. Shine, its owner), for the purpose of making whatever repairs were required upon the property under its supervision and control. Miller, who was Shine's son-in-law, had been in the latter's employ for the last ten years of his life, and upon Shine's death had bought out the widow's interest in the company, and had thereafter continued to operate it under its former name, though for all practical purposes Miller himself was the company.

After Miller took over the ownership and active management of the company, the trust company continued to give him all its repair work, which had meant an average of three days' work a week for the year preceding the accident, which occurred on April 11, 1935. Originally Miller had done some work for realtors and parties other than the trust company, but after January 1, 1935, his work had been confined exclusively to that which he obtained from the trust company in the way of repairs on the property of its different clients.

The repairs of the property of the St. Louis Realty & Securities Company at 2913 Chouteau avenue were made at the demand of the insurance company which carried the risk on the building, and included, among other things, the replacing of certain of the windows. It was while working at one of the windows on the third floor of the building that Miller met with his accident, the fact being that he fell from the window down upon the concrete sidewalk thirty feet below, as a result of which he sustained a permanent injury to his right arm involving an 80 per cent. loss of the use of the arm at the elbow.

We do not understand counsel for the appellants to suggest that Miller's actual status was that of an employee of the St. Louis Union Trust Company, with no contractual relationship of any kind or character existing between him and the St. Louis Realty & Securities Company, but only that as to the latter company he was an independent contractor, and therefore not an employee so as to be entitled to the benefits of the compensation act.

All parties to the cause have apparently proceeded upon the theory that while Miller did indeed contract with the St. Louis Union Trust Company in regard to the performance of the work in question, he contracted with it in its capacity as the agent of the St. Louis Realty & Securities Company, possessed of the power and authority to bind the latter as its principal, and with the intention and understanding on the part of all parties concerned that the St. Louis Realty & Securities Company should be bound. That such was the...