Perrin v. American Theatrical Co.

• Decision Date: 07 February 1944
• Docket Number: 38580
• Parties: Joe Perrin, Hollywood Theatrical Company, a Corporation, and Massachusetts Bonding and Insurance Company, a Corporation, v. American Theatrical Company, a Corporation, Appellant
• Court: Missouri Supreme Court

178 S.W.2d 332

352 Mo. 484

Joe Perrin, Hollywood Theatrical Company, a Corporation, and Massachusetts Bonding and Insurance Company, a Corporation, v. American Theatrical Company, a Corporation, Appellant

No. 38580

Supreme Court of Missouri

February 7, 1944

Rehearing Denied March 6, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. Edward M Ruddy, Judge.

Affirmed.

A B. Lansing, Moser, Marsalek & Dearing and J. C. Jaeckel for appellant.

(1) The usual business carried on by defendant at its theatre was the presentation of theatrical productions, and defendant entered into a contract with Joe Perrin's employer, Hollywood Theatrical Corporation, under the terms of which the latter was to furnish the production known as Earl Carroll's "Vanities" for presentation at defendant's theatre. At the time he was injured, Joe Perrin was upon defendant's premises in connection with his duties as an employee of said Hollywood Theatrical Corporation, in fulfillment of said contract, and his injuries were the result of an accident arising out of and in the course of his employment. Consequently, defendant's relationship to Joe Perrin was that of statutory employer. Secs. 3692 (a), 3698 (a), R.S. 1939; Wors v. Tarlton, 234 Mo.App. 1173, 95 S.W.2d 1199; State ex rel. Wors v. Hostetter, 343 Mo. 945, 124 S.W.2d 1072; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153; Atlas Powder Co. v. Hanson, 136 F.2d 444; Pruitt v Harker, 328 Mo. 1200, 43 S.W.2d 769; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174; Kennedy v. J.D. Carson Co., 149 S.W.2d 424; Morehead v. Grigsby, 132 S.W.2d 237; Cates v. Williamson, 117 S.W.2d 655; Simpson v. New Madrid Stave Co., 227 Mo.App. 331, 52 S.W.2d 615; Meyer v. Adams, 50 S.W.2d 744. (2) Joe Perrin's average annual earnings did not exceed $ 3,600 and his rights and defendant's liability are governed by the Missouri Workmen's Compensation Act. Secs. 3695 (a), 3710 (e), 3710(g), R.S. 1939; Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046; Mossman v. Chicago & Southern Airlines, Inc., 153 S.W.2d 799; Lamker v. Schiller, 166 S.W.2d 246; Werner v. Pioneer Cooperage Co., 155 S.W.2d 319; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Russell v. Ely & Walker D.G. Co., 332 Mo. 645, 60 S.W.2d 44, 87 A.L.R. 953; Reed v. Kansas City Wholesale Grocery Co., 236 Mo.App. 402, 156 S.W.2d 747; Heisey v. Tide Water Oil Co., 92 S.W.2d 922; Toon v. David G. Evans Coffee Co., 103 S.W.2d 533; McClintock v. Skelly Oil Co., 232 Mo.App. 1204, 114 S.W.2d 181. (3) The Missouri Workmen's Compensation Act applies to all injuries received in this State, regardless of where the contract of employment was made, and if Perrin had not been insured by his immediate employer, he could have successfully prosecuted a claim against defendant for compensation under the Missouri act. Being subject to the burdens of the act, defendant is entitled to the benefits conferred on employers thereby, one of which is immunity from actions at common law based upon injuries sustained by employees. Secs. 3691, 3698(d), 3700 (b), R.S. 1939; State ex rel. Weaver v. Mo. Workmen's Comp. Comm., 339 Mo. 150, 95 S.W.2d 641; Also cases cited under point (1), supra.

Karl M. Vetsburg, Joseph Nessenfeld and Freeland L. Jackson for respondent Perrin; James J. Seeley and Leahy & Leahy for respondents Hollywood Theatrical Company and Massachusetts Bonding & Insurance Company.

(1) The Workmen's Compensation Act creates the statutory relationship of employer and employee only with respect to persons who have work done under contract on or about their premises, which is an operation of the usual business which they there carry on and while the alleged employee is doing work which is in the usual course of such persons' business, and excludes the landlord-tenant relationship except where fraudulently created. Here, defendant's usual business was maintaining a theatre for compensation, not producing shows, and plaintiff was not doing work in the usual course of defendant's business. Secs. 3698 (a), 3698 (b), R.S. 1939, Cummings v. Union Quarry & Const. Co., 231 Mo.App. 1224, 87 S.W.2d 1039; Langley v. Imperial Coal Co., 234 Mo.App. 1087, 138 S.W.2d 696. (2) The act cannot apply unless defendant is a major employer, i.e., employs more than ten regular employees, whose average annual earnings do not exceed $ 3600. Plaintiff's evidence did not show this essential fact. Even defendant's evidence (which, of course, cannot be considered on demurrer) fails to prove this fact. Employees of the Hollywood Theatrical Corporation cannot be deemed defendant's employees because they were not engaged in any work on or about defendant's premises, and their compensation was not shown. Secs. 3692, 3695(a), R.S. 1939; State ex rel. Ebert v. Trimble, 333 Mo. 711, 63 S.W.2d 83. (3) The plaintiff was not an employee within the meaning of the Workmen's Compensation Act since his average annual earnings exceeded $ 3600. Hence the act cannot apply. Sec. 3695 (a), R.S. 1939. (4) The plaintiff was not in the employ of Hollywood Theatrical Corporation continuously during the full year next preceding his injury. His average annual earnings should therefore be determined under either subdivision (c) or (d) of Section 3710, R.S. 1939. If subdivision (c) applies, the evidence favorable to plaintiff shows that traveling musicians such as was plaintiff average $ 90 per week, and that, in general, most of the men in his profession doing his type of work customarily work fifty-two weeks in each year. Plaintiff himself had formerly averaged $ 5000 each year. This evidence shows average annual earnings of $ 4680 per year. Section 3710 (c), R.S. 1939; Lamker v. Schiller, 136 S.W.2d 371; Urseth v. Encyclopedia Brittanica, 343 Mo. 1083, 124 S.W.2d 1101. (5) If subdivision (c) does not apply, then subdivision (d) must govern. The uncontradicted evidence showed that plaintiff's employer operated throughout the working days of the year. Hence, the employment was such that the annual earnings should be regarded as 300 times plaintiff's average daily earnings. The resultant figure is a sum far in excess of $ 3600. Section 3710 (d), R.S. 1939; Hartman v. Union L. & P. Co., 331 Mo. 230, 53 S.W.2d 241; Coble v. Scullin Steel Co., 54 S.W.2d 777; Ropp v. Moon Bros. Mfg. Co., 226 Mo.App. 845, 44 S.W.2d 888; Bicanic v. Kroger Grocery & Baking Co., 117 S.W.2d 650. (6) Subdivision (e) does not apply. This can be used only with respect to employees in employments in which it is the custom to operate only a part of the whole number of working days in each year. As stated, however, the Hollywood Theatrical Corporation operated throughout the working days of the year, and, in addition, plaintiff showed that musicians doing his type of work averaged fifty-two weeks work in the year. Defendant's evidence simply showed that local musicians (a different class than plaintiff) averaged forty weeks work in St. Louis. This evidence cannot be considered on the demurrer, and, in addition, is irrelevant. Moreover, even on defendant's theory, plaintiff's annual earnings exceeded $ 3600. Section 3710 (e), R.S. 1939; Hartman v. Union Electric L. & P. Co., 331 Mo. 230, 53 S.W.2d 241; Dauster v. Star Mfg. Co., 145 S.W.2d 499. (7) The Missouri Workmen's Compensation Act in no event applies to this case. Both the plaintiff and his employer are residents and citizens of California, the contract of employment are made in California, compensation insurance was carried under the California Act, and an inference is permissible that the contract of employment provided that the Missouri Act shall not apply. Under the circumstances there is no substantial reason for holding, at the instance of a third person, that the Missouri Act is applicable, even if the facts showed that the relationship of statutory employer and employee would have existed under the Missouri law. Sec. 3700 (b), R.S. 1939; State ex rel. Weaver v. Mo. Workmen's Comp. Comm., 339 Mo. 150, 95 S.W.2d 641; Deering's Codes of Cal. (1937), Labor Code, Div. IV (Workmen's Compensation), sec. 3852; Miller v. Yellow Cab Co., 308 Ill.App. 217, 31 N.E.2d 406; Bradford Electric Light Co. v. Clapper, 286 U.S. 145. (8) There can be no presumption that the Missouri Act applies because plaintiff, a citizen of California, had no opportunity prior to the accident to reject the act. Deering's Codes of Cal. (1937), Labor Code, Div. IV (Workmen's Compensation), sec. 5000; Sec. 3690, R.S. 1939; Mayberry v. Fruin-Colnon Contracting Co., 327 Mo. 386, 37 S.W.2d 574; Warren v. American Car & Fdry. Co., 327 Mo. 755, 38 S.W.2d 718.

OPINION

Hyde, J.

This is an action for damages for personal injuries. Plaintiff (Perrin) had verdict and judgment for $ 8000.00. Defendant has appealed.

The sole question presented (assignment that verdict for defendant should have been directed) is whether plaintiff had the right to maintain a common law action for his injuries. Defendant contends that the Missouri Workmen's Compensation Act controls and prevents such action.

Plaintiff a resident of California, was a musician who came to St. Louis from Chicago as a member of an orchestra accompanying a road show called Earl Carroll's Vanities. This show was to play for a week in defendant's theatre. The troupe arrived about 9:30 a.m. Sunday, March 10th, 1940 and registered at the American Hotel. Plaintiff went to the theatre about 11:30 a.m., with the orchestra director and a member of the cast, for the purpose of making arrangements for seating the orchestra and placing instruments. Rehearsal was to be held that afternoon and the first performance given that evening. There was a temporary stairway, leading from the stage to the floor of the parquet, which had not been fastened to the floor of the...