Rutherford v. Tobin Quarries

• Decision Date: 07 May 1935
• Citation: 82 S.W.2d 918,336 Mo. 1171
• Parties: Fannie Rutherford v. Tobin Quarries, Inc., and Employers' Casualty Company, Appellants
• Court: Missouri Supreme Court

82 S.W.2d 918

336 Mo. 1171

Fannie Rutherford v. Tobin Quarries, Inc., and Employers' Casualty Company, Appellants

Supreme Court of Missouri

May 7, 1935

Appeal from Lafayette Circuit Court; Hon. Robert M Reynolds, Judge.

Reversed and remanded (with directions).

Hackney & Welch for appellants.

(1) The finding of the commission that the deceased was an independent contractor is conclusive if supported by evidence. Woodruff v. Superior Mineral Co., 70 S.W.2d 1104; Carman v. Cen. Western Dairies, 58 S.W.2d 781; Jones v. Century Coal Co., 46 S.W.2d 197; Hinkle v. Miller, 56 S.W.2d 825. (2) If Rutherford was an independent contractor, compensation was properly denied. Doyle v. Erard, 54 S.W.2d 1006; Employers' Liability Assur. Corp. v. Hereford, 272 S.W. 380; Siskin v. Johnson, 268 S.W. 630; Coylton Coal Co. v. Davidson, 7 F. 727; Whitten v. Bell, 1 F. 942; Simpson v. New Madrid Stave Co., 52 S.W.2d 615. (3) The commission's finding that Rutherford was an independent contractor was supported by overwhelming evidence. 1 Schneider on Workmen's Compensation Law (1 Ed.), p. 162; LaMay v. Industrial Comm., 126 N.E. 604; Smith v. State Workmen's Ins. Fund, 105 A. 90; Southern Const. Co. v Industrial Comm., 112 Okla. 246, 240 P. 613; Wagoner v. Davis Const. Co., 240 P. 618; Eckert's Case, 233 Mass. 577, 124 N.E. 421; Centrello Case, 122 N.E. 560; Zeitlow v. Smock, 117 N.E. 665; Winslow's Case 122 N.E. 561; State Industrial Comm. v. Wiseman, 183 N.Y.S. 112; Smith v. General Motor Cab Co., 80 L. J. K. B. 839, 1 N. C. C. A. 576; Chisholm v. Walter, 2 B. W. C. C. 261; Odle v. Charcoal Iron Co., 217 Mich. 469, 187 N.W. 243; Dobson v. Portland Sebago Ice Co., 124 Me. 305, 128 A. 401; Stein v. Battenfeld Oil & Grease Co., 39 S.W.2d 345; O'Brien v. Rindskoff, 70 S.W.2d 1085; Coul v. Peck Dry Goods Co., 32 S.W.2d 758. (4) The award was sufficient in form -- and, in legal effect, includes a finding that the death did not occur "On or about the premises." State ex rel. Buttiger v. Haid, 51 S.W.2d 1008; Probst v. St. Louis Basket Co., 52 S.W.2d 501; Miliato v. Candy Co., 54 S.W.2d 779; Meyer v. Adams, 50 S.W.2d 744; Carman v. Cen. Western Dairies, 58 S.W.2d 781.

M. D. Aber and Musser & Musser for respondent.

(1) The definitions in the statute supersede all others, and even without the liberal construction required by the act, show the relation between defendant and decedent to be that of employer and employee. R. S. 1929, sec. 3304, subsec. (a), sec. 3308, subsec. (a); R. S. 1929, sec. 3374; Hoelker v. American Press, 296 S.W. 1008; Gale v. Foundry Co., 177 Mo. 447; Kinyoun v. Kinyoun, 71 S.W.2d 81; 39 C. J., p. 1269, sec. 1453; Betz v. Columbia Tel. Co., 224 Mo.App. 1004, 24 S.W.2d 224; Stein v. Battenfield Oil & Grease Co., 39 S.W.2d 346; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 773. (2) When, upon all the evidence, it is a question of law as to whether or not the evidence was sufficient to establish the relation of independent contractor instead of master and servant, then the matter is one for the courts, and the guess of the commission is without potency. Simpson v. New Madrid Stave Co., 52 S.W.2d 615; Meyer v. Adams, 50 S.W.2d 744. (3) All the evidence offered, even assuming every inference claimed by defendants, shows the relation between defendants and decedent, both at common law and under the statute to be that of master and servant or employer and employee. Schneider, Workmen's Compensation (2 Ed.), pp. 286, 304, 306; Nelson v. Cement Co., 84 Kan. 797; Gulf Refining Co. v. Rogers, 57 S.W.2d 183; Industrial Comm. v. Bonfils, 241 P. 735; Arnold v. Lawrence, 72 Colo. 528, 213 P. 129; Franklin Coal Co. v. Ind. Comm., 296 Ill. 329, 129 N.E. 811; Eng.-Shell Coal Co. v. Industrial Comm., 186 P. 163, 43 A. L. R. 1313; Decatur Ry. Coal Co. v. Industrial Board, 276 Ill. 472; Warner v. Hardwood Lumber Co., 294 N.W. 107; Burt v. Davis-Wood Lumber Co., 102 So. 87; McKimstry v. Guy Coal Co., 116 Kan. 192; Mandato v. Hudson Shoring Co., 179 N.Y.S. 458; Dodson's Case, 128 A. 401; Mullich v. Brocker, 119 Mo.App. 332; McNally v. Diamond Paper Co., 119 N.E. 242; Odle v. Charcoal Iron Co., 187 N.W. 243; Zoltowski v. Terus Lumber Co., 214 Mich. 231; Van Limaeys v. Cook Co., 167 N.W. 925. (4) The "premises of the employer," within the meaning of the statute, is any place where, in the usual operation of his business, it is necessary for those employed by the employer to do certain work, to be while doing it. Howes v. Stark Bros., Nursery Co., 22 S.W.2d 839; Flanagan v. Webster, 107 Conn. 502, 142 A. 201; Cobb v. Standard Acc. Co., 31 S.W.2d 573; Wahlig v. Krenning-Schlapp Gro. Co., 325 Mo. 677, 29 S.W.2d 128; Fisher v. Stephens College, 47 S.W.2d 1105; Standard Oil Co. v. Anderson, 212 U.S. 221; Jewell v. Bolt & Nut Co., 231 Mo. 176. (5) A legal status such as this cannot be changed by contract, but even if they could, the contract in evidence is not binding as the statute was for the benefit of dependants as well, and their status could not be affected by such an act on the part of the decedent. Cravens v. Insurance Co., 148 Mo. 604; R. S. 1929, sec. 3321.

OPINION

Tipton, P. J.

This case comes to the writer on reassignment. It is an appeal from a judgment of the Circuit Court of Lafayette County, reversing an award of the Workmen's Compensation Commission which award denied compensation to the respondent.

The respondent filed a claim with the commission claiming as compensation the sum of $ 8300.60, on account of the death of her husband.

On July 18, 1931, J. S. Rutherford, the husband of the respondent received injuries causing his death in a collision between a truck owned and operated by him and a truck owned by R. H. Johnson and driven by Robert Menaugh. This collision occurred on a public highway in Lafayette County, about two and one-half miles from one of two rock quarries operated by the appellant. These quarries were called, respectively, No. 1 and No. 2. No. 1 was about four and one-half miles from the Missouri River and No. 2 was about six and one-half miles from the river. The appellant had a contract to deliver rock at the river for some United States Government river improvement work. The appellant employed a number of men to excavate the rock at the quarries and to load the trucks. At the river it also employed a man called a checker, who told the drivers on which one of the three barges the rock was to be delivered. This checker kept a record of the number of loads delivered by each truck and gave to the truck driver a receipt for each load. At the time of the accident there were about thirty trucks hauling rock and on each truck there was a two cubic yard body. Some owners drove their own trucks, while others hired drivers of their own selection. Truck owners were paid ninety cents per load for rock hauled from quarry No. 1 and $ 1.10 per load from quarry No. 2. The appellant did not own any trucks used for hauling the rock. The deceased had been hauling rock since June 17, 1931, and on that date entered into a written contract which will be referred to later.

The commission made an award to the appellant on the ground that the deceased was an independent contractor. Other essential facts will be stated during the course of this opinion.

I. We must first determine if there was any substantial evidence that the deceased was an independent contractor. "Our courts have held that the commission's finding that the employee was an independent contractor is in the nature of a special verdict and conclusive if supported by any substantial competent evidence. [Sec. 3342, R. S. 1929 (Mo. Stat. Ann., sec. 3342).]" [Carman v. Central Western Dairies, 58 S.W.2d 781; Woodruff v. Superior Mineral Co., 70 S.W.2d 1104.] We will, therefore, consider only the evidence most favorable in support of the award together with all reasonable inferences which may be drawn therefrom to support the finding of the commission and will disregard the unfavorable testimony where contradicted by evidence supporting the commission's conclusion. When the facts are examined from this viewpoint, no doubt exists that the court may declare as a matter of law whether one is an independent contractor or merely a servant. [Gale v. Foundry Co., 177 Mo. 427, 76 S.W. 987.]

We have defined an independent contractor to this effect: "An independent contractor is one, who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer except as to the results of his work." [Flori v. Dolph (Mo.), 192 S.W. 949, 14 R. C. L., p. 67, sec. 2; Coul v. George B. Peck Dry Goods Co., 326 Mo. 870, 874, 32 S.W.2d 758, l. c. 759.]

The evidence in the case at bar shows that on June 17, 1931, the day the deceased started to haul rock he entered into the following written contract:

"This contract entered into this 17 day of June between Tobin Quarries, Inc. and/or Tobin-Walsh Construction Company hereinafter referred to as Company, and J. S. Rutherford hereinafter referred to as Contractor:

"Whereas the Company desires to contract with the Contractor for the furnishing by the latter of a truck or trucks and a driver or drivers thereof, said trucks to be used for transporting rock and/or other commodities to and/or from premises where the company is engaged in operations pertaining to its business and the parties hereto desire that such use of trucks and drivers shall be upon an independent contractor basis and not upon a master and servant relation.

"Now therefore, it is agreed that for the aforesaid purposes the Contractor will furnish truck or trucks and a driver or drivers therefor; that the Contractor shall cause said truck or trucks to be used in hauling and transporting such...