Saxton v. St. Louis Stair Co.
| Decision Date | 20 December 1966 |
| Docket Number | No. 32426,32426 |
| Citation | 410 S.W.2d 369 |
| Parties | Robert G. SAXTON, Alleged Employee, Plaintiff-Respondent, v. ST. LOUIS STAIR COMPANY, Alleged Employer, and Iowa National Mutual Insurance Company, Insurer, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Evans & Dixon, Edward W. Warner, St. Louis, for defendants-appellants.
Hullverson, Richardson & Hullverson, Orville Richardson, Corinne Richardson, Dubail, Judge & Kilker, St. Louis, for plaintiff-respondent.
TOWNSEND, Commissioner.
This is an appeal from a judgment of the Circuit Court affirming a workman's compensation award of $10,894 by the Industrial Commission in favor of the claimant Robert G. Saxton. The sole issue in the case is whether or not Saxton was an employee of the stair company at the time of his injury.
On August 16, 1963 Saxton accidentally sustained amputation of the left arm midway between the wrist and elbow while operating a planing machine in the manufacturing plant of the stair company.
The St. Louis Stair Company is a corporation, having outstanding one hundred shares. The claimant first became connected with the company in 1947 when he entered its employment as a workman in its manufacturing plant in St. Louis. In 1953 he purchased from his father-in-law, Frank Bruckner, forty-nine of the fifty shares owned by Bruckner. Of the remaining fifty-one shares, forth-nine are registered in the name of Frank J. Jostrand, who at all relative times was the president of the corporation. One share remains in the ownership of Frank Bruckner and one is registered in the name of Ben Jostrand. There is evidence in the record that the one share registered in the name of Ben Jostrand is owned by Frank J. Jostrand, who stated, 'It is signed back to me.' At the time of the accident claimant was secretary-treasurer of the company and was also its shop foreman in the manufacturing plant.
In each of the years 1954--1963, inclusive, the board of directors of the stair company voted an annual salary of $18,000 to Frank J. Jostrand and the same amount to Robert G. Saxton. In none of these years, however, was the income of the company sufficient to justify the payment of these salaries in full and in each of such years Frank J. Jostrand and the claimant each waived, in equal amounts, his right to a part of the salary so voted by the directors. The amount waived varied from $5500 to $12,000. In each of the four years, 1956, 1957, 1958 and 1959, the larger amount was waived by each of the named parties. The waiver in 1962 and 1963 was for $8000 each.
Between 1946 and 1953, when Saxton acquired his shares from his father-in-law, Bruckner, and the latter retired from active participation in the management of the business, the Board of Directors voted Bruckner and Jostrand each a salary of $18,000. With the exception of perhaps two years, there was throughout this period a waiver each year of a part of the voted salaries. Appellant emphasizes that the same salary was voted to each of the shareholders holding forty-nine registered shares and that the waiver by each in each year was of the same amount.
The business of the company was carried on in two divisions, one sales and installation, over which Frank J. Jostrand exercised complete supervision; the other division, manufacturing, was immediately supervised by the claimant. Ordinarily the claimant had two carpenters working under him in the manufacturing end; at the time of claimant's injury, however, only one carpenter was so engaged. The claimant was back at the plant only twelve days after his injury and at that time was interviewed by the investigator of the stair company's insurance carrier. Questions and answers were recorded by a court reporter. He was asked 'Do you own any stock in the company?', and he answered, 'I own half interest in the company.' Question: 'You own a fifty per cent interest, is that right?' Answer: 'That's right.' Question: 'How is the other stock held?' Answer: 'By my partner, Mr. Frank Jostrand.' Thereafter the insurer paid the claimant $47.50 in respect of the time immediately following the injury of August 16, 1963; the insurer also paid.$846.85 in respect of medical expenses and $400.40 for an artificial arm.
This Court handed down its opinion in Voss v. Merchants Dairy Company, 373 S.W.2d 662, on December 17, 1963.
On February 14, 1964, the same claims investigator for the insurer again interviewed the claimant and took down his statement in question-and-answer form. At this interview Frank Jostrand was present and added some remarks to the answers given by the claimant. Neither the statement of August 28, 1963, nor that of February 14, 1964 is in the record; however, the content of each statement was elicited, in part, at the time of the cross-examination of the claimant in the hearing before the referee. Extensive quotation is necessary in order to illustrate the basis of the contentions herein of the respective parties. The following testimony was given with respect to the statement of August 28, 1963:
'Q. And I note that you were asked the question: Do you own any stock in the company? And you answered: I own half interest in the company. The question then was: You own a fifty per interest, is that right? The answer was: That's right. The question was then asked: How is the other stock held?
And the answer in your words was: By my partner, Mr. Frank Jostrand.
You remember those questions being asked and those answers being given at the time that statement was taken?
A. I don't remember. If they were written there, I guess I said them.
Q. They were true at that time, sir, the answers given to the questions that I have just read?
A. Yes, sir.
Q. And they are true today, isn't that correct?
A. No.
Q. Now, what I am asking you is whether or not these statements were made voluntarily by you at the time that the investigator was at the premises of the St. Louis Stair Company inquiring of your injury and of the stock ownership which you had in the company; isn't it correct that they were made voluntarily by you at that time?
A. Yes.
Q. And they were statements that comprised your general knowledge of your association with Mr. Jostrand in the company at that time, isn't that correct, sir?
A. Yes.'
With respect to the statement of February 14, 1964, the following testimony was developed:
'Q. As a matter of fact, on February 14, 1964, you were asked the question: Who does the hiring of these (shop) men? And you answered: me. Isn't that correct?
A. Yes.
Q. And you were asked: Ordinarily who decided whether they worked out, meaning whether they were acceptable to the corporation, I presume, and you answered: Me. Again, isn't that correct?
A. Yes.
Q. The question was again asked you on that date: You are the one that hires them and you are the one that tells them what to do? And the answer was: Yes. Is that correct?
A. Yes.
Q. The next question then on that date was directed to you and it was as follows: Quote, 'Do you have the right to hire and fire as far as in here goes?' And the answer was: Yes.
A. Yes.
Q. Isn't that correct? The reference was to the manufacturing end of the business, isn't that correct?
A. Yes.
Q. So that you had the right and answered yes, that you did have the right of hire and fire of the manufacturing process employees?
A. Yes, sir.
Q. Now, insofar as your own position with the company is concerned, you were asked a series of questions, were you not, sir, concerning who decided what you did on the job and who decided when you did the work and so forth? You remember those questions?
A. Yes.
Q. You remember generally that you were asked as follows: Who decides what you should do on the job? Did you decide that yourself? And you answered: I don't know what you mean now. Then it was clarified: Well, when you go to work you are going to have certain tasks that you are going to take up during the day. And you answered: Yes, sir, or course. The answer was obvious.
Following that, you are asked the question: Now who decides what you are going to do that day? And you answered: Me. Is that correct?
A. Yes.
Q. Then, the question was: Mr. Jostrand doesn't have anything to do with that, is that right? And you answered: He has to furnish the tickets.
A. That's right.
Q. Now, the tickets that you referred to were the same work orders or purchase orders that you mentioned this morning?
A. Yes.
Q. In other words, there would be no manufacturing process without the purchase order tickets coming through to the manufacturing plant which you manage, is that correct?
A. Yes.
Q. And you were further asked the question: Do you consider yourself as being boss of these operations that you engaged in? And the answer was: Oh, yes. I would, wouldn't you? Apparently, You in turn questioned Mr. Jostrand direct and he answered: Why, of course.
A. Yes.
Q. Is that correct?
A. Yes.
Q. Those questions and answers and statements were made?
A. Yes.
Q. They were true and correct at the time they were made?
A. Yes.
Q. And they are true and correct today also?
A. Yes, sir.
Q. Again on February 14, 1964 you were asked the question, were you not, Quote: 'Does anyone have the right to fire you?' Quote. And you answered: No. Is that correct?
A. Yes, Sir.'
'Q. And further, in keeping with the relationship you had with Mr. Jostrand he made a statement which is contained in the statement taken of you and he said as follows in respect to whether there were corporate meetings, executive meetings, and so forth. Rather than you answering the question, Mr. Jostrand apparently interspersed his answer, quote, , close quote. Now, again, in that respect he was discussing and talking about meetings between you and he, Mr. Jostrand, is that correct?
A. Yes, sir.
Q. And when he said we, we, we, he meant you and he,...
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