Schutz v. Great American Ins. Co.

• Decision Date: 05 April 1937
• Citation: 103 S.W.2d 904,231 Mo.App. 640
• Parties: P. GEORGE SCHUTZ, RESPONDENT, v. GREAT AMERICAN INSURANCE COMPANY ET AL., APPELLANTS
• Court: Kansas Court of Appeals

103 S.W.2d 904

231 Mo.App. 640

P. GEORGE SCHUTZ, RESPONDENT, v. GREAT AMERICAN INSURANCE COMPANY ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

April 5, 1937

Appeal from Circuit Court of Carroll County.--Hon. Ralph Hughes Judge.

AFFIRMED (conditionally).

Franken & Timmons for respondent.

Morrison Nugent, Wylder & Berger and Douglas Stripp for appellants.

OPINION

BLAND, J.

This is an action arising before the compensation commission. The case was heard before a referee, who found that claimant was not in the employee of the defendant, Great American Insurance Company. On review before the full commission claimant was awarded compensation in the sum of $ 700.92 and reimbursement for medical aid in the sum of $ 733, the commission finding that claimant was an employee of the Great American Insurance Company; that the company had notice of the accident and that the employer and insurer failed to furnish claimant medical aid. One of the commissioners dissented. The case was appealed by the defendants to the circuit court where the award of the commission was affirmed. Defendants then appealed to this court.

The facts show that the defendant, Great American Insurance Company, is engaged in the fire insurance business; that Mrs Elsie Schutz Berning, a sister of the claimant, was the owner of a frame house in Carrollton, on which the said defendant was carrying a fire insurance policy in the sum of $ 11,000, and that on the afternoon of Sunday, December 18, 1932, the house was badly damaged by fire and water. The policy was issued through D. D. Thomas, the local agent in Carrollton for said insurance company. Thomas also acted as adjuster for the company in settling the loss. The policy contained a provision that the company could either make a cash settlement or repair or replace the property damaged.

Claimant was a resident of Norborne, a nearby city, and was engaged in the hardware, grocery, plumbing and electrical business, owning a store in that place. He also owned and supervised a 300-acre farm.

Claimant's theory is that he was employed by the fire insurance company, through Thomas, to rebuild and repair the damaged portion of the house, defendants insisting that he was doing the work for his sister.

The facts show that claimant and Mrs. Berning lived together in Norborne. The house in question was occupied by their parents. Claimant's evidence shows that Mrs. Berning was unable to go to Carrollton at the time of the fire, resulting in claimant and her father, as her representatives, meeting Thomas at the damaged house on the morning (Monday) following the fire. Thomas remarked that it was going to be a hard loss to adjust and "we are going to reserve the right to put it back the way it was." Claimant's father carried a policy of fire insurance with the fire insurance company upon the furniture in the house in question. Thomas was anxious that a temporary roof be placed upon the house, as the roof had been burned off. He asked claimant if he could get the necessary roofing by the next morning and the latter answered in the affirmative. He then asked claimant who the former could get to do the work and if the claimant had any men. Clainant said he had. Thomas then stated: "I won't have any 75 [cents] or $ 1 an hour men on this job." Thomas later said: "'Next thing we have got to figure this material out, what we are going to need.'" "He said," "'We are not going to be held up by none of these lumbermen.'" He asked claimant if the latter knew what it would cost to buy the lumber. Claimant said, "No." Thomas told him to go to Norborne and see what "we could buy the lumber for. " This lumber was not only for the temporary roof but "for the whole building." Claimant went to Norborne and inquired of various lumber yards there as to prices. He returned to Thomas' office about 10:30 A. M. Thomas then said: "'I already bought the lumber over here at Hurley Lumber Yard,'" "and I told he (him) what the men (workmen) wanted up there, and he said, 'That is fair enough. Go out and go to work.' What did you tell him the men wanted? A. 65 [cents] an hour. Q. What did he say? A. Said it was fair enough."

It appears that Thomas, in his work as adjuster, was required to be out of the city a great deal of the time so he told claimant: "'I won't be able to be here.'" "He said," "'I am going to turn it over to you.'" Claimant volunteered to take 50 [cents] per hour for his individual work. It appears that Thomas and the members of the Schutz family were friends of long standing. Claimant testified that he had been getting 65 [cents] to 75 [cents] per hour for all of his time in doing repair work but charged only 50 [cents] per hour on this occasion because Thomas and he were friends.

Thereafter, claimant went to Norborne and engaged two carpenters who were his personal friends and customers. Claimant accompanied by Mr. Renzelman, one of the carpenters, went to the office of Thomas about noon of the day after the fire. Renzelman suggested that it would be better to put on the permanent roof at once instead of a temporary roof, which Thomas agreed was the thing to do. He told the two men to "go ahead and go to work" and to start tearing off the old burned rubbish. Before leaving on his out of town trips Thomas would lay out the work that claimant and the men were to do on the house, which they would perform and then await instructions from him before proceeding further.

On the Tuesday after the fire Mrs. Berning asked Thomas if it would not be possible to have a cash settlement and he promised to make an estimate for that purpose but he told her if a cash settlement was not made the house would be replaced in as good shape as it was or even better; that "We are friends and this is all just like it was in one family, and we are going to give you a square deal out of it." On Wednesday Thomas told claimant that "We . . . can't figure on a cash settlement. . . . We are going to go ahead and replace the building, go ahead with your work." Thomas made arrangements to get the lumber and materials from the Hurley Lumber Company and told claimant where to procure the same. During the time that claimant was working on the house Thomas told him, on several occasions, to keep the furnace going in order to dry out the house. He told him to get the paint, to prime the new lumber, to get the shingles and put them on the roof, to order the rubbish hauled away, to completely replaster the house, to repair the flue, and to buy some items of repair from the LaCrosse Lumber Company. Thomas was at the house between seven and ten times giving orders. Claimant did no work upon the house that was not directed by Thomas and the latter approved of all of the men that were hired by claimant.

Claimant and his sister talked over each night what she desired in the way of repairs on the house and claimant would take the matter up with Thomas and then the work would be done if Thomas approved. Nothing was done that Thomas did not agree to.

Thomas' son, who was the attorney for the fire insurance company, told claimant that the company issued but one check in payment of a loss and for him to pay the men and the company would reimburse him but to keep "the time on these men," all of which claimant did.

The above facts were not only testified to by claimant but Renzelman testified that Thomas said: "The insurance company is going to put the house back like it was." Mrs. Berning testified that Thomas agreed to repair the house and that she did not employ claimant. The evidence further shows that Thomas went to the Hurley Lumber Company and asked about prices of materials and stated that they were wanted for the Schutz fire loss; that the following day he went back and arranged for the buying of the materials and said he would send down and get them. Thomas said to the lumber company: "We are going to repair the Schutz house." He did not say to charge the lumber to Thomas or the insurance company, but under such circumstances it was customary for the lumber company to charge the materials to the person ordering them, so it charged them to Thomas. In all $ 500.71 worth of materials were procured by the claimant from the Hurley Lumber Company upon Thomas' order. After claimant was injured the bills were turned over to Thomas and he went to the lumber company protesting that the bills were charged to him. They were not paid and later, in order to save the expense of filing a lien, the lumber company was willing to take, and did take, claimant's note for the materials but still retained on its books the charge against Thomas.

Claimant was injured on January 29, 1933, and did no more work on the house after that time. At the time plaintiff was injured the repairs on the house were not finished. The floors were not finished or replaced, the painting and papering was to be done and "all inside work to be refinished." In reference to claimant's injury, the evidence shows that Thomas repeatedly told claimant to keep a fire going in the furnace in the house, not only in order to dry out the house but to keep the plastering that had been put on the walls on the upper floor from freezing, the time being midwinter. It appears that a fire was built at the time claimant, his father and Thomas first met at the house to talk over the loss and that Thomas assisted in building this fire. It was dark in the house and there was no way of lighting it artificially, as the current had been cut off, and in firing the furnace claimant would go to the cellar through outside wooden doors. There was sufficient from which the commission could have inferred that Thomas knew of the presence of these doors and their probable use by the claimant in entering the cellar to fire...