Schwandt v. Witte

• Decision Date: 10 April 1961
• Docket Number: No. 48031,No. 2,48031,2
• Citation: 346 S.W.2d 50
• Parties: Herbert SCHWANDT, Respondent, v. Richard J. WITTE, d/b/a Home Improvement Supply Company, Appellant
• Court: Missouri Supreme Court

Page 50

346 S.W.2d 50

Herbert SCHWANDT, Respondent, v. Richard J. WITTE, d/b/a Home Improvement Supply Company, Appellant.

No. 48031.

Supreme Court of Missouri, Division No. 2.

April 10, 1961.

Rehearing Denied May 8, 1961.

Jerome J. Duff, John J. Delabar, St. Louis, for employer-appellant.

John D. Connaghan, St. Louis, William L. Mason, Jr., St. Louis, for respondent.

BARRETT, Commissioner.

On January 2, 1957, Herbert Schwandt and Pat Collins, roofing and siding applicators, were remodeling Paul Rost's twostory apartment building at 7271 Southwest Avenue. Specifically, they were replacing the wood siding with asbestos siding. While working on a scaffold Schwandt pulled on a board, the board broke and Schwandt off balance fell to the ground fracturing his right wrist and leg. Claiming that he was employed by Richard J. Witte, doing business as Home Improvement Supply Company, Schwandt filed a claim for compensation under the Workmen's Compensation Law. Mo.R.S.1959, Sec. 287.010 et seq., V.A.M.S. Mr. Witte denied that Schwandt was his employee. The Division of Workmen's Compensation found, however, that Schwandt 'was either an employee or an independent contractor of Richard J. Witte (Home Improvement Supply Company), and it is not important which he was because he was doing work for Richard J. Witte on or about Witte's premises which was an operation of the usual business which Witte was there carrying on' and, therefore, the claim was compensable under section 287.040(1), the 'statutory employment' provision (25 K.C.L.R. 149) of the statutes. The Industrial Commission affirmed the award on review and since Mr. Witte did not carry compensation insurance and was not an authorized self-insurer the award was commuted (Mo. R.S.1959, Sec. 287.280, V.A.M.S.), $2,433.18 medical expenses, $6,238.83 compensation, total award $8,672.01. The circuit court affirmed the award and on December 22, 1959, Mr. Witte filed his notice of appeal in this court.

The appellant contends that he was not an 'employer' (Mo.R.S.1959, Sec. 287.030(1), V.A.M.S.) and that Schwandt was not an 'employee.' Mo.R.S.1959, Sec. 287.020(1), V.A.M.S. It is said that Schwandt was an independent contractor and therefore 'has benefits * * * available' if he can bring himself within the definitions of section 287.040, but the appellant insists that upon this record the claim is not within the statutory employment provision. In any event he contends that the commission erroneously applied paragraph one of the statute when as a matter of fact Schwandt and Collins were partners and 'contracting parties' rather than employees of subcontractors and therefore the claim falls within the exception or exemption of paragraph three and is not compensable.

Respondent's appellate counsel, instead of briefing the case on its merits, has filed a brief in which he 'ignores' each of the appellant's separately briefed points because, he says, the appellant's brief does not meet the requirements of Supreme Court Rule 83.05, V.A.M.R., particularly as the rule has been interpreted in Domijan v. Harp, Mo., 340 S.W.2d 728. Even after appellant's counsel was given leave to amend his brief in certain particulars (Pearson Drainage District v. Erhardt, 239 Mo.App. 845, 859, 201 S.W.2d 484, 492), and even after what should have been a sufficient warning on oral argument, counsel has not seen fit to brief his case on the merits. Counsel has not moved to dismiss the appeal (Jacobs v. Stone, Mo., 299 S.W.2d 438) or to affirm the judgment (Sup.Ct.Rule 83.09) because of the claimed violation of the rules but urges nevertheless that the judgment should be affirmed. The appellant's brief is not as deficient as the respondent paints it and in the circumstances respondent's counsel should have briefed the case on its merits. This is after all a workmen's compensation case, an appeal from an administrative tribunal, and the essential problem is whether the commission's award is supported by substantial evidence upon the whole record or whether it should be set aside as clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55.

Collins and Schwandt were experienced roofing applicators, they worked as a team, the appellant calls them partners. They furnished their own tools, ladders and scaffold and were paid $8 a square for applying asbestos roofing and siding and they divided all sums received 'fifty-fifty.' Generally they applied roofing and siding for four or five general contractors such as Mr. Witte who solicited contracts and then, as he says, hired subcontractors to perform the work. In this instance Collins and Schwandt learned from a friend that Mr. Rost was a prospect for asbestos siding, they looked at his house and estimated that it would require 34 squares. They then went to Mr. Witte: 'We had to go down there and ask him if he would take the job because we couldn't finance it.' Witte says that he took the job merely to accommodate Collins and Schwandt, they had done four or five other jobs working in this manner through him. Collins and Schwandt picked up the materials at Better Roofing Material Company in Collins' truck (he was paid extra by Witte for hauling materials). The materials were billed to Witte who paid for them. Collins and Schwandt worked on Rost's house two days in the latter part of December and were given a check by Witte, as was the custom in the business, for the squares of siding they had applied up to that time. This check they cashed and divided. They resumed work on January 2, 1957, when Schwandt was injured and Collins finished the job.

The appellant points to these and many other circumstances, the team's procuring the job, furnishing the tools and equipment and urges that Witte had no control over the details of the work and argues therefore that they were not employees of Witte but were independent contractors. It is not necessary to detail all the factors and indicate the indicia of independent contractor or the indicia of employer and employee. Without regard to statutory employment provisions, several jurisdictions in comparable circumstances have held that the relationship of employer and employee existed between the roofing contractor and the applicators. Hume v. Industrial Commission, 248 Wis. 5, 20 N.W.2d 573; Heine v. Hill, Harris & Co., 2 La.App. 384; Graf v. Montgomery Ward & Co., 234 Minn. 485, 49 N.W.2d 797; Shaffer v. Brown, 32 N.J.Super. 413, 108 A.2d 476; 99 C.J.S. Workmen's Compensation Sec. 106, p. 357. On the other hand, there have been several cases in other jurisdictions in which in the particular circumstances roofing applicators were held to be independent contractors and not employees. Nollett v. Holland Lumber Co., 141 Neb. 538, 4 N.W.2d 554; Thompson v. Braselton Federal Insulating & Building Materials Co., 203 Okl. 510, 223 P.2d 527; Fahey v. Terp, 235 Minn. 432, 51 N.W.2d 273; 99 C.J.S. Workmen's Compensation Sec. 106, p. 362. These lists of cases show the evolution and present status of this phase of the roofing industry, the sale and installation of roofing and siding. But it is not necessary to a disposition of this appeal to say whether the usual relationship of employer and employee (Mo.R.S.1959, Secs. 287.020, 287.030, V.A.M.S.) existed, even though the presence of the relationship would dispose of this appeal. The relationship of 'statutory employer' or 'statutory employee' 'has no reference whatsoever to the usual tests or rules applicable to the relationship of master and servant or employer and employee.' The statutory...