Nagle v. Drew, 32496

Decision Date15 November 1966
Docket NumberNo. 32496,32496
Citation409 S.W.2d 264
PartiesDaniel K. NAGLE, Plaintiff-Appellant, v. Monnie DREW, Defendant, Oliver E. Wade, Charles Rohlfing, Charles Clemons, and Aetna Casualty and Surety Company, Defendants-Respondents.
CourtMissouri Court of Appeals

Mogab & Hughes, by Richard L. Hughes, St. Louis, for appellant.

David G. Dempsey and Lloyd E. Eaker, Eaker, Dempsey, Zerman & Dempsey, Clayton, for respondent, Wade.

Luke, Cunliff, Wilson, Herr & Chavaux, by Robert R. Schwarz, St. Louis, for respondent, Aetna Cas. and Surety Co.

CLEMENS, Commissioner.

This is an appeal in a Workmen's Compensation case concerning the claimant's fruitless efforts to show that he was a statutory employee under § 287.040(1), V.A.M.S. The claimant-appellant, 53-year-old Danied K. Nagle, suffered paralyzing injuries while working for defendant Monnie Drew. Drew, an independent contractor, was then operating his own bulldozer for a partnership composed of defendants-respondents Oliver E. Wade, Charles Rohlfing and Charles Clemons. Nagle has withdrawn his claim against his immediate employer, Monnie Drew, who was a minor employer not covered by the Workmen's Compensation Law. Nagle's claim is against defendants Wade, Rohlfing and Clemons as statutory employers and against their alleged insurer, Aetna Casualty and Surety Company.

The Division of Workmen's Compensation denied Nagle's claim and on appeal the Industrial Commission of Missouri affirmed. On Nagle's next appeal the Circuit Court affirmed the Commission's award denying liability. In the wake of these three adverse rulings, Nagle appealed to the Supreme Court. It concluded that the amount in dispute fell short of $15,000 and transferred the case to us. (Nagle v. Drew, Mo., 396 S.W.2d 709.)

Here, Nagle contends he is entitled to compensation from Wade, Rohlfing and Clemons because they were his statutory employers. Section 287.040(1), V.A.M.S., provides that if persons have work of their usual business performed under contract and upon premises under their exclusive control, they are liable for injuries to the contractor's employees. The decisive issue: Where a landowner designated three partners as successful bidders to lease its land to operate a rubbish disposal area, and preparatory to operating the area under the proposed lease the partners hired the claimant's employer as an independent contractor to widen an access road in the area-to-be-leased, were the partners the claimant's statutory employers?

We state the evidence on this issue. St. Louis county owned an unfenced, 37-acre tract used by the public as a dumping ground, without supervision or restrictions. The St. Louis County Council decided on a new plan: They would rent the land to a lessee; the lessee would supervise the dumping ground and could charge persons for dumping refuse; the lessee would pay an annual rental to the county. On June 15, 1961, defendants Wade, Rohlfing and Clemons bid $17,500 for a five-year lease. On July 27, 1961, the County Council passed an ordinance stating that it 'enters into a lease' with Wade, Rohlfing and Clemons for a five-year term 'commencing on date of execution of a formal contract.' On August 9, 1961, St. Louis county and Wade, Rohlfing and Clemons executed a lease for a five-year term beginning November 1, 1961. We are concerned here with events occurring immediately after the passage of the county's ordinance on July 27, 1961.

Defendant Wade had read in a newspaper that the county had accepted the partners' bid. Without consulting any county official, Wade hired Monnie Drew to bulldoze a road running along an old quarry on the dumping ground. Wade told Drew to make it wide enough for two-lane dump truck traffic. Drew began widening the road and pushing brush into the quarry.

At noon on July 31, the third day of Drew's work at the dumping ground, Drew was bulldozing along the roadway close to the quarry's edge. Nagle was watching Drew, guiding him so that the bulldozer would not get too close to the quarry. But the bulldozer struck a tree and one of the limbs fell on Nagle's back, fracturing a vertebra.

As said, the dumping ground was open to public use, and before and after Nagle's injury trucks and pedestrians were freely coming and going all over the tract. Wade, Rohlfing and Clemons had no permission from the county to do any work at the dumping ground; indeed, county officials had asked them to leave.

Drew's bulldozing would make it easier for trucks to pass on the road and to dump rubbish into the quarry. At that time, however, Wade, Rohlfing and Clemons had no plan for dumping at specific locations; and, by their subsequent lease the county designated the places where rubbish was to be dumped. When they did begin operations the partners rented a grader to cover rubbish that had been dumped into the quarry. So much for the facts.

In his brief, claimant Nagle frankly admits he must show that at the time of his injury the dumping ground was under the partners' exclusive control and, also, that Monnie Drew's bulldozing was then part of the partners'...

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5 cases
  • Boatman v. Superior Outdoor Advertising Co.
    • United States
    • Missouri Court of Appeals
    • June 30, 1972
    ...337 Mo. 1127, 1134, 88 S.W.2d 174, 178(5); Dawson v. Clark Oil and Refining Corporation, Mo.App., 410 S.W.2d 353, 356; Nagle v. Drew, Mo.App., 409 S.W.2d 264, 266(1); Johnson v. Simpson Oil Company, Mo.App., 394 S.W.2d 91, 95(2); Crabtree v. Ramsey, Mo.App., 115 S.W.2d 14, 16(1). 'Premises'......
  • Ferguson v. Air-Hydraulics Co.
    • United States
    • Missouri Court of Appeals
    • February 27, 1973
    ...otherwise perform, thus depriving an employee who engages in the usual work of his business the benefits of compensation. Nagle v. Drew, Mo.App., 409 S.W.2d 264; Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332, In examining the purposes of the statute and the elements which m......
  • Saale v. Alton Brick Co.
    • United States
    • Missouri Court of Appeals
    • April 2, 1974
    ...by hiring independent contractors to perform the usual work which would otherwise be performed by his own employees. Nagle v. Drew, 409 S.W.2d 264, 267(3) (Mo.App.1966); Ferguson v. Air-Hydraulics Company, 492 S.W.2d 130, 136(6) (Mo.App.1973). Before one is held to be a statutory employee t......
  • Spacy v. Stout's Feed and Supply
    • United States
    • Missouri Court of Appeals
    • August 5, 1974
    ...exclusive control of the employer, where the employer's usual business is being carried on or conducted, * * *." See also Nagle v. Drew, 409 S.W.2d 264 (Mo.App.1966); and Johnson v. Medlock, 420 S.W.2d 57 (Mo.App.1967). The parkway portion of the public street here where appellant was injur......
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