Pitts v. Maupin

• Decision Date: 12 November 1935
• Parties: CLAUDE PITTS, APPELLANT, v. A. P. MAUPIN, RESPONDENT
• Court: Kansas Court of Appeals

88 S.W.2d 384

230 Mo.App. 221

CLAUDE PITTS, APPELLANT, v. A. P. MAUPIN, RESPONDENT

Court of Appeals of Missouri, Kansas City

November 12, 1935

Appeal from Circuit Court of Nodaway County.--Hon. Thomas A Cummins, Judge.

AFFIRMED.

Judgment affirmed.

E. H Gamble for appellant.

Orestes Mitchell and Orestes Mitchell, Jr., for respondent.

OPINION

BLAND, J.

This is an appeal from a judgment affirming an award of the compensation commission. Compensation is claimed as the result of the loss of claimant's right eye caused by a branch of a tree striking him in the eye while he was felling trees to be sawed into lumber.

The suit was prosecuted against A. P. Maupin and Grover Slawson et al. There was an award in favor of the claimant and against Grover Slawson but in favor of the defendant Maupin. The commission found that claimant was, at the time he was injured, employed by Grover Slawson; that A. P. Maupin was an independent contractor and that the work being performed was not that of the "usual business" of the said Maupin and that he was not liable under the provisions of Section 3308, Revised Statutes 1929.

As the award of the commission was in favor of the respondent Maupin, it is incumbent upon us to take the evidence in its most favorable light to him. [Meyer v. Adams et al., 50 S.W.2d 744.]

The facts show that Maupin and his son were partners engaged in the seed business in King City, Gentry County, and that the former was the sole owner of a farm in Nodaway County, on which he desired to construct some corn cribs. In order to procure the lumber for this purpose he entered into a contract with a neighbor, one Watson, for 100,000 feet of lumber to be sawed by Maupin from standing trees upon Watson's farm. Maupin was to pay Watson $ 5 per 1000 feet for the lumber. The contract provided that Maupin should perform the work and pay all of the expenses for sawing and removing the timber.

Shortly after this contract was made Maupin entered into an oral contract with one, Grover Slawson, providing that the latter should cut the trees into logs, draw them to a sawmill and saw them into lumber, for which Slawson was to be paid "so much per hundred" feet of lumber sawed. Under this arrangement Slawson entered into three subcontracts; one with Ray Files, the owner of a portable sawmill, to saw the logs into lumber; another with one Boyle to cut the trees into saw logs; another with his brother, Harry Slawson and one Buchanan, who were to drag the logs with horses from where they were cut to the sawmill. Pursuant to these subcontracts Files established his sawmill on the land, Boyle began the log cutting and Slawson and Buchanan began dragging the logs to the mill. However, Boyle did not have sufficient helpers to cut the logs fast enough for the full operation of the sawmill and, thereupon, Grover Slawson hired more timber cutters, one of whom was the claimant.

There is some evidence in the record that claimant was hired by one Bush, a tenant on the Maupin farm, but there is evidence tending to show that the said Bush had no authority to hire claimant on behalf of Maupin. There was ample testimony that claimant was employed by Grover Slawson, who paid him for his work. Claimant accepted the employment and engaged one man as his helper and divided his pay with the latter. It was while they were engaged in the work that claimant was injured as aforesaid. Grover Slawson paid Files and Boyle all that their employees earned and they in turn paid their employees. Grover Slawson also paid Harry Slawson and Buchanan, the log haulers. Maupin furnished two workmen who hauled the sawed lumber away from the mill. While Pitts and Babb were cutting trees Maupin came there on various occasions and gave some directions in reference to the work, but there is no testimony and no serious claim made that Maupin so interfered with the work as to deprive him of his status as an employer of an independent contractor. On the law points the case is briefed on both sides on the theory that he was such an employer. It appears that Grover Slawson carried no insurance under the compensation act.

Maupin testified that the work being done on the Watson farm was no part of his regular business, his claim being that his usual business was that of a dealer in seeds; that "cutting timber and so forth is not a part of my regular business. My main business is the seed business. In addition to that I bought a little land because I thought it was cheap."

The commission found that the claimant was employed by Grover Slawson; that the "cutting and the sawing of the timber was not the usual business of Maupin;" that Maupin had nothing to do with the work as such and that (Grover) Slawson was an independent contractor.

The determination of this case depends upon the proper interpretation of Clause (a), Section 3308, Revised Statutes 1929, which reads as follows:

"Any person who has work done under a contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business."

It is contended that, although Maupin was having the work done under a contract, it was being performed on or about his premises and in the operation of the usual business which he there carried on, within the meaning of the statute; that the evidence shows that the timber cutting being done was not only the usual but, in fact, the only business that Maupin carried on at the place in question, citing in support of this contention, among others, the case of Simpson v. New Madrid Stave Co., 52 S.W.2d 615. In that case the defendant's business was that of manufacturing staves...