Sargent v. Clements

• Decision Date: 12 November 1935
• Citation: 88 S.W.2d 174,337 Mo. 1127
• Parties: Vida Sargent, Dependent of Joseph S. Sargent, v. Frank A. Clements, d/b/a Frank A. Clements Company, and United States Fidelity & Guaranty Company, a Corporation, Appellants
• Court: Missouri Supreme Court

88 S.W.2d 174

337 Mo. 1127

Vida Sargent, Dependent of Joseph S. Sargent, v. Frank A. Clements, d/b/a Frank A. Clements Company, and United States Fidelity & Guaranty Company, a Corporation, Appellants

Supreme Court of Missouri

November 12, 1935

Appeal from Lewis Circuit Court; Hon. Harry S. Rouse Judge.

Affirmed.

Carter & Jones, Richard S. Bull and William A. Dorsey for appellants.

(1) While the appellate court is precluded from weighing the evidence in a proceeding under the Workmen's Compensation Act, and while the evidence must be viewed in the light most favorable to the findings and the award of the commission yet the question of whether the award and the findings upon which it is based are warranted by sufficient competent evidence in the record is one of law, and if they are not they must be set aside. Sec. 3342, R. S. 1929; Barlow v Shawnee Inv. Co., 48 S.W.2d 35; Sawtell v. Stern Bros. & Co., 44 S.W.2d 264. (a) The party seeking the benefits of the act has the burden of establishing its applicability to the claim asserted. Delille v. Holton-Seelye Co., 66 S.W.2d 834; Kemper v. Gluck, 39 S.W.2d 330, 327 Mo. 733; Pfitzinger v. Shell Pipe Line Corp., 46 S.W.2d 955; Weiler v. Peerless White Lime Co., 64 S.W.2d 125. (2) Deceased's agreement with said appellant was not to perform service as an employee, but rather was to perform certain specified work at a contract price. This made of him an independent contractor whose death was not compensable. Secs. 3304, 3305, R. S. 1929; 1 Schneider, Workmen's Comp. Law, secs. 37, 38; Carman v. Central Western Dairies, 58 S.W.2d 781; Coul v. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758; McGrath v. St. Louis, 215 Mo. 191; Fink v. Mo. Furnace Co., 82 Mo. 276; Beach v. Velzy, 238 N.Y. 100, 143 N.E. 805; Litts v. Risley Lumber Co., 224 N.Y. 321, 120 N.E. 730; Robichaud's Case, 234 Mass. 60, 124 N.E. 890; Simonton v. Morton, 275 Pa. 562, 119 A. 732; Carleton v. Products Co., 165 N.W. 816, 19 A. L. R. 1141; Perham v. Roofing Co., 193 Mich. 221, 159 N.W. 140; Indus. Comm. v. Henderson, 182 N.E. 603; Potter v. County, 112 Neb. 318, 199 N.W. 597; Standish v. Larsen-Merryweather Co., 245 N.W. 606; Storm v. Thompson, 170 N.W. 403, 20 A. L. R. 658; Thompson v. Indus. Comm., 184 N.E. 633; Reid v. Leitch Collieries, Ltd., 7 B. W. C. C. 1017; Donlon Bros. v. Commission, 159 P. 715; Western Indemnity Co. v. Pillsbury, 159 P. 721; Fid. & Dep. Co. v. Commission, 216 P. 578, 34 A. L. R. 1304; London G. & A. Co. v. Indus. Comm., 35 P.2d 1010; Indus. Comm. v. Casualty Co., 176 P. 288; Luker Gravel Co. v. Comm., 23 P.2d 225; Southland Oil Co. v. Pritchett, 27 P.2d 819; Migues v. School Board, 158 So. 269; Hatten v. Haynes, 144 So. 483; Bryson v. Lumber Co., 169 S.E. 276; Royal Indem. Co. v. Blankenship, 65 S.W.2d 327. (a) While there is evidence that appellant made certain requests of deceased and gave certain directions to his employees, yet these merely constituted a reasonable supervision over the result of the work, so as to conform it to the needs of appellant, and the relationship of deceased as an independent contractor was not altered thereby. 14 R. C. L. 68-70, "Ind. Contr.," secs. 3, 4, 5; Annot. 75 A. L. R. 726; O'Hara v. Gaslight Co., 244 Mo. 395; McGrath v. St. Louis, 215 Mo. 211; Crenshaw v. Ullman, 113 Mo. 639; Meredosia L. & D. Dist. v. Comm., 120 N.E. 516; Beach v. Welzy, 238 N.Y. 100, 143 N.E. 805; Litts v. Risley Lumber Co., 224 N.Y. 321, 120 N.E. 730; Western Indemnity Co. v. Pillsbury, 159 P. 721; Pace v. County, 168 N.W. 916; Petrow & Giannon v. Shewan, 187 N.W. 940; Indus. Comm. v. Casualty Co., 176 P. 288.

Joseph Boxerman for respondent.

(1) The findings of fact made by the commission were within its powers and are conclusive and binding upon the court. Sec. 3342, R. S. 1929; Burgstrand v. Crowe Coal Co., 77 S.W.2d 100; Leilich v. Chevrolet Motor Co., 328 Mo. 120, 40 S.W.2d 604; Kaiser v. Merry, Inc., 79 S.W.2d 476; Vollet v. Federal Brilliant Sign Co., 49 S.W.2d 201; Shroyer v. Mo. Livestock Comm. Co., 332 Mo. 1219, 61 S.W.2d 713; Meyer v. Adams, 50 S.W.2d 744. (a) Neither appellant Frank A. Clements, employer, nor Todd, his foreman, testified at the hearing. Their failure to testify raises a strong presumption and inference that their testimony would have been unfavorable and damaging to appellants. Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W.2d 886; Baker v. Railroad Co., 327 Mo. 986, 39 S.W.2d 543; Scotten v. Metropolitan Life Ins. Co., 68 S.W.2d 63. (b) Verdicts of juries in common-law suits on similar questions and facts have been sustained by the courts. Timmerman v. St. Louis Architectural Iron Co., 318 Mo. 421, 1 S.W.2d 795; Jewell v. Bolt & Nut Co., 231 Mo. 176, 132 S.W. 703; Andres v. Cox, 23 S.W.2d 1069; Gorman v. Jackson Kansas City Showcase Works Co., 19 S.W.2d 563; Clayton v. Hydraulic-Press Brick Co., 27 S.W.2d 55. (2) The award of the commission was proper though Joseph S. Sargent, deceased, be considered an "independent contractor." (a) Though commission assigns wrong reason for making award, if award as made is to the proper person under the law, the award is valid. Cobb v. Standard Acc. Ins. Co., 31 S.W.2d 575. (b) If Joseph S. Sargent be considered an "independent contractor," his death is compensable, because the accident occurred on the premises of Frank A. Clements, employer, while doing work which was in the usual course of his business. Sec. 3308 (a), R. S. 1929; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Cobb v. Standard Acc. Inc. Co., 31 S.W.2d 575; Simpson v. New Madrid Stave Co., 227 Mo.App. 331, 52 S.W.2d 615; Meyer v. Adams, 50 S.W.2d 744; Woodruff v. Superior Mineral Co., 70 S.W.2d 1105.

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

OPINION

FERGUSON

This is an appeal from a judgment of the Circuit Court of Lewis County affirming an award of the Workmen's Compensation Commission. Joseph S. Sargent was doing the "dynamite work" for three separate contractors who were engaged in the construction of twelve miles of State Highway No. 61 in Lewis County. Each contractor was in charge of and doing the construction work on a separate section of the road. Sargent contracted separately with the contractors to do all the "dynamite work" required, by each, in the course of the construction work. He was killed, July 15, 1932, by an explosion of dynamite while working on the section of road which was in charge of, and under construction by the appellant Frank A. Clements, d/b/a Frank A. Clements Company. The widow, Vida Sargent, made claim for compensation under the Workmen's Compensation Act against the three construction contractors jointly. At the hearing the referee made a finding, that "at the time and place of his death" Sargent "was an employee of Frank A. Clements;" that his death "was caused by an accident arising out of and in the course of "his employment by Clements; and that he "was not an independent contractor." The referee then made an award in favor of the claimant widow, as a total dependent, against Frank A. Clements, d/b/a Frank A. Clements Company, and his insurer, as follows:

"For burial expenses, to Vida Sargent, the sum of $ 150.00.

"For death benefits, to Vida Sargent, the sum of $ 20.00 per week for 403.8 weeks.

"If, however, said Vida Sargent should die or remarry prior to the expiration of said 403.8 weeks, said compensation or death benefit shall thereupon cease and abate and no further payments shall be required."

Upon review by the full commission the finding and award made by the referee was adopted and affirmed with one commissioner dissenting on the ground that deceased "was an independent subcontractor of Frank A. Clements and the liability in this case must be determined" by Section 3308, Revised Statutes 1929, and that under said section Clements is not liable. As noted Clements and his insurer bring this appeal from the judgment of the circuit court affirming the award.

It appears that the commission's conclusion was that the relation of master and servant existed between Sargent and Clements and that the award was made on that theory. Appellants' sole assignment of error is "that there was not sufficient competent evidence . . . to warrant the award." In support of their contention appellants urge that upon the undisputed and uncontroverted evidence, and claimant's own evidence, viewed in the light most favorable to the finding which is the basis of the award, it appears as a matter of law that Sargent was an independent contractor and that appellant is not therefore liable for compensation under the terms of the Workmen's Compensation Act. In reply respondent argues that the finding of the commission that the relation of master and servant existed and that Sargent was not an independent contractor is supported by substantial evidence and is conclusive but that if it be held that Sargent was an independent contractor his death, under the circumstances shown, as compensable under the provisions of subsection (a) of Section 3308, Revised Statutes 1929, of the Workmen's Compensation Act and the award should therefore be affirmed. That this section may be before us, as we proceed with this discussion, we quote it here:

"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 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."

A further statement of the facts may better facilitate an understanding of the situation out of which this claim arises. We find no substantial conflict in the evidence and the facts stated, shown...