Pruitt v. Harker

• Citation: 43 S.W.2d 769,328 Mo. 1200
• Parties: Ronie Pruitt v. Helen V. Harker, Appellant
• Decision Date: 20 November 1931
• Court: United States State Supreme Court of Missouri

43 S.W.2d 769

328 Mo. 1200

Ronie Pruitt v. Helen V. Harker, Appellant

Supreme Court of Missouri

November 20, 1931

Appeal from Iron Circuit Court; Hon. E. M. Dearing, Judge.

Affirmed.

Leahy Saunders & Walther, Harold F. Hecker and Lyon Anderson for appellant.

(1) The Commission had no jurisdiction to make an award for the reason that appellant was a minor employer. Secs. 3303, 3302 R. S. 1929. The Compensation Act does not change the accepted meaning of the word "employee," but adopts the common-law definition. Sec. 3305-A, R. S. 1929. (a) Respondent was not under the act, for the reason that William Pruitt was a minor employer. Sec. 3302-B, R. S. 1929. (b) A minor son living with and supported by his parents, and doing such work as directed by the father, without any agreement as to wages, is not an "employee" entitled to compensation under the Workmen's Compensation Act for injuries received while working for the father. Aetna Life Ins. Co. v. Industrial Accident Commission (Cal.), 165 P. 15; Hillestad v. Industrial Ins. Commission, 141 P. 913. It is against sound public policy to permit a child to maintain an action for damages against his parent. Wick v. Wick, 192 Wis. 260, 212 N.W. 787; Elias v. Collins, 211 N.W. 88, 237 Mich. 175; 52 A. L. R 1123; 31 A. L. R. 1157. (2) The court erred in affirming the award of the Commission, for the reason that the evidence conclusively showed that the respondent was employed by a minor contractor, who was an independent contractor not subject to the act; under such circumstances no liability can be predicated, under the act, against appellant. Sec. 3308, R. S. 1929; O'Donnell v. Wells, 21 S.W.2d 766; Belz v. Columbia Tel. Co., 24 S.W.2d 224; State v. Freeland, 318 Mo. 560, 300 S.W. 675; Dysart v. St. Louis, 11 S.W.2d 1045, 62 A. L. R. 762; Thompson v. Dirck, 11 S.W.2d 38; Humes v. Mo. Pac. Ry. Co., 82 Mo. 221; 25 R. C. L. 1006 et seq.; Industrial Com. v. Everett, 108 Ohio St. 639; McIlvan v. Blue (Kan.), 203 P. 701. (3) Sec. 3308, R. S. 1929, is void, for the reason that it violates Sec. 30 of Art. II of the Missouri Constitution and the Fourteenth Amendment to the Constitution of the United States. Cooley's Constitutional Limitations, pp. 335, 175; Ham v. McClaws, 1 Bay (S. C.) 93; Barksdale v. Morrison, Harp. (S. C.) 101; Daugherty v. Thomas (Mich.), 140 N.W. 615; Camp v. Rogers, 44 Conn. 291; Ohio & Miss. Ry. Co. v. Lackey, 78 Ill. 55. Sec. 3308, R. S. 1929, is rendered unconstitutional by the interpretation placed on it by the trial court. Truax v. Corrigan, 257 U.S. 312, 66 L.Ed. 254; Chi. & N. W. Ry. Co. v. Nye Schneider Fowler Co., 260 U.S. 35, 67 L.Ed. 115.

Edgar & Banta for respondent.

(1) Under the facts in this case Helen V. Harker is liable to claimant and every other person engaged in the manufacture of timber products on her lands. Compensation Act, sec. 10a; now Sec. 3308, R. S. 1929. (a) Under the said section the question of whether or not William Pruitt was a major or minor employer does not enter into this case. (b) If the respondent, Ronie Pruitt, who worked with his father (rather than for his father), is not entitled to compensation under our Workmen's Compensation Act, for the injuries sustained, then, not only is Section 10a, now Sec. 3308, R. S. 1929, a nullity, but Sections 3305 and 3320 (f) and (j) are likewise of no effect. Respondent is not undertaking to maintain an action for damages against his parent. He was the employee of appellant. Sec. 10a, now Sec. 3308, R. S. 1929. Though the employment arrangement was made by his father, both the father and Mr. Cornwell, agent of appellant, had the respondent in mind when the arrangement was made. (2) The whole act and particularly Secs. 3305, 3308, 3320, R. S. 1929, show an intention to provide that if a person has work done under contract upon or about his premises which is an operation of the usual business there carried on he is deemed an employer of any and all persons (regardless of ages or relationship), when injured or killed on or about his premises while doing work which is in the usual course of his business. The adoption of these sections is a valid exercise of the legislative power of the people by referendum and the act should be construed in accordance with its plain intent. Hawes v. Stark Bros., 22 S.W.2d 839; Betz v. Columbia Tel. Co., 24 S.W.2d 228; Clingan v. Carthage Ice, etc., Co., 25 S.W.2d 1084. (3) Sec. 3308, R. S. 1929, does not take away any right of appellant under the due-process and equal-protection clauses of the Fourteenth Amendment and Article II, Section 30, Constitution of Missouri. Sec. 3308 (d), R. S. 1929. (4) Under the act, respondent, though a minor, is and was to all intents and purposes an adult. He is emancipated by operation of law. Sec. 3305 (a), R. S. 1929.

Sturgis, C. Ferguson and Hyde, CC., concur.

OPINION

STURGIS

This action was instituted by the plaintiff (respondent) filing his claim for compensation for injuries received before the Workmen's Compensation Commission of this State to recover for injuries sustained while working at a sawmill located on defendant's premises. There is no question as to plaintiff's injuries or the amount of the compensation awarded. Plaintiff fell or was thrown agains a circular saw in motion and his right hand was so cut and lacerated that the same had to be amputated at the wrist joint. The Commission awarded him $ 250 for medical aid and the further sum of $ 8 per week for one hundred and seventy-five weeks. The question here presented relates to defendant's liability under the facts.

The established facts are that defendant owned several thousand acres of timbered land in Iron and Madison Counties. She desired to have the timber suitable for that purpose cut and sawed into merchantable lumber. To do this she purchased and placed on the land five sawmills ready for use. She then contracted separately with different persons, each one to operate a sawmill in cutting and sawing her timber into lumber of suitable dimensions. Each person so employed was an independent contractor, in that defendant merely furnished the timber in the woods and the sawmill and then paid for the finished product at $ 8.50 per thousand feet board measure. Each operator of a sawmill hired and paid for his help, operated the mill at his own expense, and paid for the repairs and up-keep. Each operator of a sawmill was in no way under the supervision of the defendant except as to what lands he was privileged to work on and as to the finished product being of suitable dimensions and material. The defendant had nothing to do with hiring the necessary help but knew that it took from five to seven men to operate each sawmill. Each operator was wholly independent of the other operators. The defendant, in addition to furnishing the sawmills, merely paid each operator of a sawmill $ 8.50 per thousand feet of finished lumber.

One of the operators of defendant's saw mills was William Pruitt, father of this plaintiff. He operated one of defendant's sawmills under the agreement to operate same at his own expense and to furnish his own help and was paid $ 8.50 per thousand feet for whatever lumber he sawed. He employed three men at $ 2 per day of ten hours and with the help of his three sons, the plaintiff, sixteen years of age, being one of them, he was operating one of defendant's sawmills when plaintiff received his injuries. The defendant paid him $ 8.50 per thousand feet of lumber sawed and he hired and paid his help and the expense of up-keep and operation of the mill. He also furnished the tools, axes, etc., used by himself and his employees in doing this work.

The plaintiff, a boy sixteen years of age, was not working for his father for wages or by contract, but was merely helping his father as is usual for a minor child living at home. He testified that there was no contract of employment of any kind between himself and his father and no wages were paid or expected; that he worked for his father and obeyed him because he was his father and never received or expected any wages. He however, did a man's work and defendant knew this and knew that in operating the sawmill the father expected his son to do this work.

The evidence showed that the defendant had only three persons in her direct employ or on her pay-roll. Each of the operators of a sawmill had not to exceed six or seven employees.

When this claim was filed, defendant took the position that plaintiff was not in her employ and did not attend or take any part in the first hearing had by the Commission. On this hearing the Commission made the following findings of fact and rulings of law:

"The employer was duly notified of the hearing of this case, but failed to appear for the same.

"The evidence shows that the Harker Company (Helen V. Harker) owned and operated five sawmills in the State of Missouri and owned the land upon which the timber was cut to be sawed in said mills. It further appears that each of the aforesaid mills employed an average of seven men.

"The employee's father, William Pruitt, received from the Harker Company $ 8.50 per thousand feet, board measure, for the lumber he sawed at one of the mills. He employed the men to work at the mill and had about seven men at the time the employee was injured. Among the seven men were three of Mr. Pruitt's boys, including the injured employee, who received no set wage. However, the other employees hired by Mr. Pruitt received $ 2 per day or $ 12 per week. The testimony shows that the employee was doing a man's work.

"On June 6, 1928, the employee, while working at the mill sustained a personal injury by accident arising out of and in the course of his employment, as a result of which it was necessary to amputate his right (major)...