Rucker v. Blanke Baer Extract & Preserving Co.

• Decision Date: 02 June 1942
• Docket Number: No. 25929.,25929.
• Citation: 162 S.W.2d 345
• Court: Missouri Court of Appeals
• Parties: RUCKER v. BLANKE BAER EXTRACT & PRESERVING CO. et al.

162 S.W.2d 345

RUCKER v. BLANKE BAER EXTRACT & PRESERVING CO. et al.

No. 25929.

St. Louis Court of Appeals. Missouri.

June 2, 1942.

Appeal from St. Louis Circuit Court; William K. Koerner, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by John Edward Rucker, claimant, opposed by Blanke Baer Extract & Preserving Company, employer, and American Mutual Liability Insurance Company, insurer. From a judgment reversing an award in claimant's favor, claimant appeals.

Affirmed.

Tibbits & Green and Charles E. Wells, all of St. Louis, for appellant.

Luke & Cunliff, of St. Louis, for respondents.

BENNICK, Commissioner.

This is a proceeding under the workmen's compensation law (Secs. 3689-3766, Mo.R.S.A.), the appeal being by John Edward Rucker, the claimant, from the judgment of the Circuit Court of the City of St. Louis reversing an award of the commission in his favor, and against Blanke Baer Extract & Preserving Company, the alleged employer, and American Mutual Liability Insurance Company, the insurer.

The question at issue in the case is whether there was sufficient competent evidence to support the finding of the commission that Rucker, at the time of his injury, occupied the status of "statutory employee" of Blanke Baer Extract & Preserving Company so as to have entitled him to an award of compensation under Section 3698(a), R.S.Mo.1939, Mo.R.S.A. § 3698(a), which provides that any person who has work done under 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 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.

Blanke Baer Extract & Preserving Company, as its name implies, is a concern engaged in the business of canning fruits and manufacturing preserves, extracts, jellies, and the like.

Its place of business is located at 3224 South Kingshighway, in the City of St. Louis, where it has the necessary equipment for its business, including two separate boiler plants, each with an iron smokestack, which, in order to prevent deterioration from rust as well as to improve the appearance of the property, must be painted every six to nine months as the occasion may demand.

The company had no one in its regular employ who was equipped to paint the smokestacks, and whenever the necessity arose, the customary procedure was for a professional steeple jack, such as Rucker, to be called in and requested to submit a bid for the job. Rucker, incidentally, was a steeple jack of thirty years' experience, who did work for a number of St. Louis concerns, including Blanke Baer Extract & Preserving Company, whose smokestacks he had been painting under contract for some fourteen or fifteen years. He admitted that his work was of a hazardous nature that required special skill, training, and ability, and comprised a distinct calling for which he held himself out as being specially qualified.

On the occasion in question, Rucker had contracted with one Earney, the company's master mechanic, to paint the two stacks for the flat price of $16, with Rucker to furnish his own equipment, paint, and helper. The actual work of painting the stacks would occupy some four and one-half or five hours, and Rucker expected to net about $11 for himself after the payment of all the expenses of the job. He was authorized to do the work in his own manner and at his own convenience and time, and his helper was one of his own selection, over whom he and no one else possessed the right of control.

In the course of fulfulling his contract, Rucker fell and sustained an injury for which he filed his claim for compensation. As we have already indicated, the commission sustained his claim upon a finding that at the time of his accident he was a "statutory employee" of Blanke Baer Extract & Preserving Company, and therefore within the protection of the act by virtue of Section 3698. Following the entry of such award, Blanke Baer Extract & Preserving Company and its insurer appealed to the circuit court, which reversed the award upon the ground that the same was not supported by the evidence. From the judgment so entered in the circuit court, the claimant, Rucker, has brought his appeal to this court, where he contends that the commission's finding and award was supported by sufficient competent evidence, and that the circuit court was in error in rendering its judgment of reversal.

Fundamentally, the compensation law provides a scheme whereby those persons who are employees in the true legal sense of a master and servant relationship (or their dependents as the case may be) may be awarded compensation from their employers according to a fixed system or schedule and without regard to any question of negligence, when both the employment and the injury for which compensation is to be paid are within the operation of the act. The underlying concept of the act is to shift to industry as a whole the economic loss entailed by personal injuries sustained by employees in the course of industrial operations (Stone v. Blackmer & Post Pipe Co., 224 Mo.App. 319, 27 S.W. 2d 459); and to assure the accomplishment of this salutary purpose to the greatest possible extent, and to prevent unresponsive employers from circumventing the act by the fiction of contracting independently for their...