Morehead v. Grigsby

• Decision Date: 10 August 1939
• Citation: 132 S.W.2d 237,234 Mo.App. 426
• Parties: LEE MOREHEAD, APPELLANT, v. O. G. GRIGSBY AND SHANNON BROTHERS LUMBER COMPANY, RESPONDENT
• Court: Missouri Court of Appeals

132 S.W.2d 237

234 Mo.App. 426

LEE MOREHEAD, APPELLANT, v. O. G. GRIGSBY AND SHANNON BROTHERS LUMBER COMPANY, RESPONDENT

Court of Appeals of Missouri, Springfield

August 10, 1939

Appeal from the Circuit Court of Mississippi County.--Hon. Frank Kelly, Judge.

REVERSED AND REMANDED (with direction).

Judgment reversed and cause remanded.

George B. Bridges for appellant.

Oliver & Oliver for respondents.

FULBRIGHT J. Smith, J., concurs; Allen, P. J., absent.

OPINION

FULBRIGHT, J.

This cause was instituted before the Workmen's Compensation Commission, October 11, 1937, by Lee Morehead against O. G Grigsby and Shannon Brothers Lumber Company (Shannon Brothers Incorporated), and is based upon an injury to the left hand while employee was sawing blocks. The Referee and the full Commission found for claimant, and Shannon Brothers Incorporated and its insurer appealed to the circuit court where the award of the Commission as to them was reversed and as to O. G. Grigsby affirmed. Claimant then appealed to this court.

Shannon Brothers Incorporated is engaged in the wholesale hardwood lumber business with its principal place of business in Memphis, Tennessee. The company has been in business since 1919, and until 1933 or 1934 its usual operation consisted of buying virgin timber, cutting and hauling the logs by rail or river to Memphis where they were put through the company's mill, put into lumber, dried and sold on the market. In two instances since 1933 or 1934 the company has purchased the land upon which the timber stood. The first tract so purchased was at Hughes, Arkansas, and the second, a six or seven hundred acre tract, in Mississippi County, Missouri. The suitable timber on the Arkansas tract was disposed of and a contract let to clear the cut over land and put it in condition for farming purposes in order that the company might realize additional profits. The timber had been removed from approximately 150 to 200 acres on the Missouri tract prior to the month of June, 1937, at which time, Shannon Brothers Incorporated entered into a contract with O. G. Grigsby to clear this cut over portion. Part of the culled hickory logs that was left on this tract was sold prior to the contract with Mr. Grigsby. There was an agreement between the company and Mr. Grigsby whereby the culled hickory logs and other timber suitable for the purpose were to be manufactured into billets which were to be hauled to Cairo, Illinois, and disposed of, and the company was to receive one-fifth of all they sold for. Subsequent to this agreement a mill was placed on the tract for the purpose of sawing the timber into billets or squares. Mr. Grigsby secured the services of Lee Morehead to operate this mill, and it was while he was working at the mill sawing billets that he received the injury complained of herein.

Respondents insist "that there was not sufficient evidence on which to base an award to the effect that the work in which Lee Morehead was engaged was work done under contract in the usual course of business of Shannon Brothers Incorporated." That they limited the issues to this sole question appears from their statement, as follows:

"The circuit court agreed with respondents holding that the uncontroverted facts showed that the work being done was not in the usual course of business of Shannon Brothers Incorporated. This therefore is the only question in the case."

A portion of the Referee's finding of fact and ruling of law in connection with the hearing of said cause is as follows: "I find, from the evidence that, while the primary business of the Shannon Brothers Incorporated was the cutting and selling of hardwood timber, it was also a part of their regular business to clear and develop such land as they acquired for the timber it would produce, to their financial advantage and further that O. G. Grigsby, co-defendant in this case, was engaged in clearing a tract of land owned by the Shannon Brothers Incorporated, on or about August 12, 1937 and had set up a saw mill on the premises to be cleared and had engaged the claimant in this cause as a foreman. There is no evidence that title of the land, or the cull lumber thereon passed from the Shannon Brothers Incorporated, but to the contrary. The Shannon Brothers Incorporated were to share in the profits of the sale of manufactured 'Billets' upon the completion of sale and further that the Shannon Brothers were vested with authority to stop any and all operations upon these premises at their will."

The full Commission found, in part, "That the employee was employed by O. G. Grigsby, and that said Grigsby was a major employer subject to the provisions of the Missouri Workmen's Compensation Law. We further find said Grigsby was an independent contractor doing work on the premises of Shannon Brothers Lumber Company, and that the work being done was a part of the usual business of said lumber company. Therefore, Grigsby is primarily liable for the compensation awarded herein and the Shannon Brothers Lumber Company and their insurer are secondarily liable."

The circuit court found, in part, "that plaintiff Lee Morehead and defendant O. G. Grigsby were independent contractors but that the work in which they were engaged in the cutting of squares from the cull hickory timber was not a part of the usual business of the said Shannon Brothers Lumber Company."

It is conceded by both parties that claimant must recover, if at all, under section 3308a, Revised Statutes of Missouri, 1929, on the theory that Lee Morehead was an employee of an independent contractor (Grigsby) who was engaged in the usual business of Shannon Brothers Incorporated.

The evidence pertaining to this issue is, in substance as follows. J. E. Shannon, president and general manager of Shannon Brothers Incorporated, testified that "Shannon Brothers Incorporated is engaged in the manufacture of wholesale hardwood lumber. The manufacture of wholesale hardwood lumber consists of buying the timber, either contract the logs cut and hauled to the railroad or river, but we do this ourselves, have our own equipment and haul them to the river and barge them down to Memphis and put them throught the mill. . . . I have never run a handle mill or a dimension mill. That is not a part of the usual business of a lumber company such as I have." He further testified that Mr. Beaton (the company's superintendent in Mississippi County) sold one of the cull timber on the tract involved to a man at East Prairie, and "then two or three weeks after that or a month, Mr. Grigsby got after me to buy them and I asked him what he would give.

"Q. Got after you to buy what? A. The cull hickory logs and I asked him what he'd give for them and he said it is hard to tell, but there was a lot of good billets and maybe there would be four inches of good wood around the edge. He said, 'I will split them in billets and haul them to Cairo and give you one-fifth of what I get for the billets for stumpage.' And I said, 'Go ahead, I have never sold anything like that, but I will ty it.' And he split them for about three or four weeks, I had to come back about every week or two weeks and some time after that I come over there and I saw this mill he had setting up there and he said, 'I got me a saw mill. What do you think about it?' And I said, 'Well I don't know.'

"The contract for these billets was separate and apart from the clearing agreement and was a verbal contract. The manufacture of billets is not a part of our usual lumber business, it is the first time I ever sold any like that. Two or three years ago was the first time I cleared some land and I had been in business since 1919. This will be the second time I have cleared land. I cleared some in 1933 or 1934 in Hughes, Arkansas. That is not separate and apart from the lumber business but is connected with the lumber business and owned by the lumber business.

"Q. Did you say it was owned by the lumber business? A. Yes, sir.

"Q. But that is not connected with the lumber business; that is separate and apart, isn't it, Mr. Shannon? A. Yes, sir. It is owned by the lumber business.

"Q. Did you say it was owned by the lumber business? A. Yes, sir.

"Q. You mean the land was owned by the lumber company? A. Yes, sir. . . .

"Q. Had you ceased all of your timber operations on that land when you entered into your agreement with Mr. Grigsby about selling him these billets? A. On approximately 150 to 200 acres we cut it all off except a few hickory trees and they run so bad, I told them if there was any good trees, I wanted them but if not he could put them in his billets.

"Q. Do you consider your operations cutting off the good timber? A. I have cut all the timber I ever expect to cut and remove.

"Q. And in your opinion, you have cut off all the timber that is merchantable? A. What I call merchantable.

"Q. And yet you make a contract with Mr. Grigsby for one-fifth? A. What was left."

Mr Grigsby testified that some time in June, 1937, he entered into an agreement with Mr. Shannon to clear the land for $ 12 an acre; that there was nothing said the first time he talked with Mr. Shannon about what was to be done with the timber; that later on he talked to Mr. Shannon and told him there was some hickory on the land and asked him what he would do about it; that he said to Mr. Shannon, "I will give you one-fifth of what I can get out of it," and Mr. Shannon said, "Well you go ahead and try it that way and if I could do it any good, if I was getting too much out of it he'd see me later. He didn't know what I'd do with it and I didn't either." He testified that after he had gone to making billets he saw Lee Morehead who told him that he was a bolting saw man and could make the squares with a saw...