Newberry v. Shell Pipe Line Corporation

• Decision Date: 20 February 1934
• Docket Number: No. 5195.,5195.
• Citation: 68 S.W.2d 862
• Parties: NEWBERRY v. SHELL PIPE LINE CORPORATION.
• Court: Missouri Court of Appeals

68 S.W.2d 862

NEWBERRY v. SHELL PIPE LINE CORPORATION.

No. 5195.

Springfield Court of Appeals. Missouri.

February 20, 1934.

Appeal from Circuit Court, Maries County; Walter S. Stilwell, Judge.

"Not to be reported in State Reports."

Proceedings under the Workmen's Compensation Law by Harold Newberry, claimant, against the Shell Pipe Line Corporation, employer. From a judgment of the circuit court affirming a decision of the Workmen's Compensation Commission in favor of the employer, the claimant appeals.

Judgment of the circuit court affirmed.

J. Milt Shockley, of Richland, and Phil M. Donnelly, of Lebanon, for appellant.

Thompson, Mitchell, Thompson & Young, Charles H. Wager, and Malcolm E. Grant, all of St. Louis, for respondent.

ALLEN, Presiding Judge.

The facts in this case are that some time prior to 1926 the appellant, Newberry, had been employed by respondent, Shell Pipe Line Corporation, as a telephone and electric line man. He then, and at the time his claim in this case was heard by the Workmen's Compensation Commission, resided in Richland, Mo. His services with the company appear by the evidence to have been entirely discontinued two or three years prior to the date of the injury complained of in this cause. The respondent has a pipe line passing near Richland, from a point in Oklahoma, through Missouri to Woodriver, Ill., and maintains along its pipe line a private telephone line for its use.

Witness R. K. Grubb, living at Richland, Mo., was the agent and employee of respondent, having charge of the maintenance of said line from Yarma Station, in Maries county, Mo., to Roxdale Station in Dallas county, Mo.

The evidence heard before D. R. Jennings, referee for the Workmen's Compensation Commission and considered by the full commission, developed the following facts:

Claimant was for some time prior to the accident out of which this action grows not steadily employed. He was industrious, and often solicited employment from Mr. Grubb, who was in charge of respondent's telegraph and telephone line. Several times prior to July 28, 1931, and during the same year, he did small, odd jobs for Mr. Grubb, for which he was paid in all the sum of $4, as evidenced by the check of Grubb, upon his personal account.

Some three or four days prior to July 28, 1931, appellant solicited work from Grubb, who testified that he on several different occasions specifically informed appellant that he (Grubb) was not allowed by the company to hire any help, and that whatever he (Grubb) employed him to do would have to be paid for out of his (Grubb's) personal funds. Appellant, so far as his testimony was concerned, failed to remember such statement. However, three or four days previous to July 28, 1931, appellant again asked Grubb for work. Grubb told him he would make a trip over part of the telephone line the first of the following week, and he could go with him if he wished, but claims that he again informed appellant that he had no authority to hire any help, and to do so was required to get consent from the St. Louis office, and that the office was not inclined to grant such permission, and that, if he paid out any money for hire, he would have to do so out of his own money. That appellant replied that all he wanted was work, and that it made no difference to him who paid. This appellant denied. However, on the morning of July 28th, appellant and a young man, Johnnie Powers, left Richland in an automobile with Grubb, going to the telephone line of respondent, to about six miles from Vienna, Mo. There appellant chopped down a small tree, which was about three inches in diameter. His attention was then directed to a limb on another tree near the telephone line as being a little too high or near the line. He climbed up that tree, and told Johnnie to hand him the axe. Grubb was sending the tree hooks up to him and he (appellant) fell from the tree and was injured. He did not appear to be much hurt, and in the afternoon Grubb took him back to Richland. On the way back appellant got out and opened a gate. It afterwards developed that he had been hurt.

Witnesses Eugene Thomas and James Bowles each testified that they heard Grubb tell appellant before the accident that the Shell people were not hiring any one in his department, and that, if he hired any one, he would have to pay them out of his own funds. Bowles testified that before the accident the subject of hiring more men was brought up in the presence of Grubb and appellant, and that Grubb told them that "it would be nice if the company would let me have two boys, but the Shell won't let me, and if I have any I have to pay them."

Samuel A. Lesnett, division superintendent of telegraph and telephones for respondent, and in authority over Grubb and his telephone and telegraph division, said that Grubb's duties were to patrol lines and take care of lighting equipment at Richland; that he (Grubb) was not allowed any helper, and had not been since March, 1930; that he had instructed Grubb not to employ any one without his authority and approval; that no authority had been asked or granted to employ appellant; and that he (appellant) had not been on the company pay roll for the previous two years.

This claim was heard by D. R. Jennings, referee, on November 4, 1931, and by him found in favor of the alleged employer and insurer, and against the alleged employee, and no compensation was awarded. Attached to the form of award by referee were "the findings of fact and rulings of law made in connection therewith," which are as follows:

"The evidence clearly shows that the alleged employee sustained a personal injury by an accident on July 28, 1931. It seems that one Harold Newberry, the claimant in this case, had at one time been in the employment of the Shell Pipe Line Corporation, but had been discharged because of lack of work. This was some several months previous to the accident. One R. K. Grubb was employed as a line man by the defendant Shell Pipe Line Corporation and as such had charge of the line between the Roxdale Station and the Yarna Station together with the Richland Station. Grubb was not allowed a helper unless he first called his division superintendent, Samuel A. Lesnett, and secured his permission. The rules of the Shell Pipe Line Corporation specifically provide that any one entering their employment is required to fill out certain forms and undergo a physical examination. In the case at bar the lineman, Grubb, did not have any of these forms filled out by the claimant, Newberry, nor did Newberry undergo a physical examination. Newberry had on one or two previous occasions done some work for Grubb and was paid for the same by a personal check issued by Grubb. The claimant by his own testimony admitted that he had knowledge of the appearance and form of a check issued by the Shell Pipe Line Corporation and was also familiar with the different forms and rules governing the employment of persons by the defendant. It is my opinion from the evidence that the claimant merely accompanied Grubb on the morning of July 28, 1931, for the trip. There is no question that if Grubb intended to pay Newberry to do some work for him on this day he was exceeding any authority that had been given him by the defendant Shell Pipe Line Corporation. It is further my opinion that from the facts one can reasonably infer that the claimant Newberry knew that he was not being hired by the defendant Shell Pipe Line Corporation. There has been some inference in the record that Grubb was in the capacity of an agent of the Shell Pipe Line Corporation and that his acts as such would bind the principal. We then come to this rule of Law that where an agent acts without the scope of his authority the principal can not be bound. In this case the claimant by his own testimony discards any inference of an apparent authority and the evidence further shows that the lineman, Grubb, had no implied or actual authority to hire any assistants or helpers.

"In view of the facts as above outlined it is my opinion the claimant, Harold Newberry, was not in the employment of the defendant, Shell Pipe Line Corporation, on July 28, 1931, and therefore the claim for compensation is denied."

Thereafter, on December 4, 1931, the full commission made the following finding and award in the premises: "The above parties having submitted their disagreement or claim for compensation for the above accident to the undersigned Members of the Missouri Workmen's Compensation Commission, and after hearing the parties at issue, their representatives, witnesses and evidence, the undersigned hereby find in favor of the above alleged employer and insurer and against the above alleged employee, and award no compensation for the above accident."

From which award of the commission the claimant, Newberry, appeals.

Distinguished and able counsel for appellant have very earnestly presented their contention that the appellant in this cause was an employee of the Shell Pipe Line Corporation, respondent, and that the Compensation Commission and the circuit court erred in holding to the contrary, with which position we cannot agree.

In appellant's...