Scott v. Edwards Transp. Co., Inc.

• Court: United States State Supreme Court of Missouri
• Citation: 807 S.W.2d 75
• Decision Date: 09 April 1991
• Docket Number: No. 72916,72916
• Parties: Jackie Wayne SCOTT, Respondent-Appellant, v. EDWARDS TRANSPORTATION CO., INC., Respondent-Employer, and Aetna Casualty & Surety Co., Respondent-Insurer, and Medwick Johnston, Appellant-Respondent.

Page 75

807 S.W.2d 75

Jackie Wayne SCOTT, Respondent-Appellant, v. EDWARDS TRANSPORTATION CO., INC., Respondent-Employer, and Aetna Casualty & Surety Co., Respondent-Insurer,

and

Medwick Johnston, Appellant-Respondent.

No. 72916.

Supreme Court of Missouri,

En Banc.

April 9, 1991.

Rehearing Denied May 3, 1991.

Phillip J. Barkett, Jr., Sikeston, for respondent-appellant.

Manuel Drumm, Sikeston, for Medwick Johnston.

James B. Kennedy, Paul D. Larimore, St. Louis, for Edwards Trans., and Aetna Cas. & Sur. Co.

HOLSTEIN, Judge.

Claimant Jackie W. Scott sought workers' compensation from Medwick Johnston and Edwards Transportation Company, Inc. (Edwards). The Labor and Industrial Relations Commission (Commission) affirmed the administrative law judge's award of compensation against Johnston and a denial of the claim against Edwards. Scott and Johnston appealed to the Missouri Court of Appeals, Southern District. Following opinion, this Court granted transfer. Rule 83.03; Mo. Const. art. V, § 10. Affirmed.

In a single point, Scott asserts that under the facts of this case he should be deemed a statutory employee of Edwards. Johnston's brief on appeal claims 1) he was not individually bound by an election of the "Rainbow Buildings" partnership to be subject to the Workers' Compensation Act, and 2) he did not have a sufficient number of employees to be an employer as defined in the Act.

As the issues are presented, appellate review is limited to questions of law and whether the award is supported by sufficient competent evidence in the record. Section 287.490.1. ¹ In reviewing fact questions, this Court considers the evidence in the light most favorable to the findings of the Commission. Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413 (Mo.App.1988).

On April 22, 1987, Scott was helping construct a partially completed steel frame building when he fell from the roof and sustained severe injuries. Scott had been employed by Medwick Johnston. The property on which the building was being constructed was owned by Edwards.

On March 19, 1987, Edwards accepted a bid of Medwick Johnston submitted on a proposal form of Rainbow Buildings. According to the proposal, Rainbow Buildings undertook to provide the labor and materials to construct a building for Edwards for

a set price. Next to the printed words "authorized signature" appears the signature of Medwick Johnston. Johnston was the only person with whom Edwards negotiated the contract. To the left of Johnston's signature was a declaration that "Our workers are fully covered by Workmen's Compensation Insurance."

Sometime prior to entering into the contract, Johnston had been in business with Fred Storey, doing business as Rainbow Buildings. On October 22, 1985, certificates were filed with the Division of Workers' Compensation reflecting the purchase of workers' compensation insurance by Johnston and Storey, doing business as Rainbow Buildings. Neither Johnston nor Storey rescinded any acceptance of the Workers' Compensation Act. Johnston testified that he had ceased doing business with Storey several months prior to April 22, 1987. The insurance had expired by the date of Scott's injury.

Edwards is a trucking company in the business of hauling goods for hire. Edwards was not engaged in the business of constructing, repairing or demolishing buildings.

During the course of construction and prior to Scott's injury, Johnston had employed six or seven different persons. However, there is no evidence that Johnston had more than four employees working for him at any one time on or prior to April 22, 1987.

On this evidence, the Commission concluded that Edwards was not a statutory employer of Scott pursuant to § 287.040. Thus, Edwards was held not to be liable.

The Commission found two grounds justifying an award against Johnston. The first was that, notwithstanding the dissolution of the partnership,

Johnston, by his actions, intended to be covered by the Act. He used a bid form which stated he was covered by the Act. Johnston continued in the same type of business as that engaged in by the partnership, building steel buildings. He held himself out as "Rainbow Builders" [sic] by using the same bid forms as the partnership had used and represented he was covered under the Act.

The second basis was that Johnston employed a total of six or seven employees during the course of the construction, thus attaining the threshold number of employees to qualify as an employer under the Act.

I.

Scott's appeal takes issue with the Commission's application of § 287.040 to these facts. The relevant portion of the statute provides:

1. 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 ... to such contractor ... 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.

Scott seizes on certain facts to assert that Edwards was acting as a general contractor on its premises, and is thus liable as a statutory employer pursuant to § 287.040.1. ² The facts relied on are that Edwards contracted separately for electrical work, directed the "roughing in" of plumbing, did part of the finish work, had a representative regularly checking the work, supplied the financing and exchanged employees with Johnston. As Scott would have the Court construe § 287.040.1, any landowner who engages a contractor to perform part, but not all, of the work on a project is in the usual business of a general contractor. That reading of the words "usual business" is extremely broad and is not supported by the Missouri cases construing the statute.

Scott cites four cases that he claims support his argument, Viselli v. Missouri Theatre Bldg. Corp., 361 Mo. 280, 234 S.W.2d

563 (1950); Tokash v. General Baking Co., 349 Mo. 767, 163 S.W.2d 554 (1942); Shaver v. First Union Realty Management, Inc., 713 S.W.2d 297 (Mo.App.1986); and Ratliff v. Cargill, Inc., 680 S.W.2d 233 (Mo.App.1984)

In Viselli, the corporate owner of a commercial building contracted to have windows washed. This Court held an employee of the window washing service was a constructive employee of the corporation that owned and managed the commercial building. It was stipulated that a window cleaning service was an integral and necessary part of the maintenance and operation of the corporation's commercial building business. 234 S.W.2d at 566.

Shaver is factually similar to Viselli. There the corporation owned and managed commercial real estate. The claimant was an employee of a separate corporation that had contracted with the owner to maintain a commercial building. The claimant was a maintenance engineer and was checking on the operation of a sump pump when he was injured. Under those "essentially undisputed" facts, the claimant was held to be a statutory employee of the owner. 713 S.W.2d at 300.

In Ratliff, the court held that an employee of a pest control company was a deemed employee of the owner of a feed manufacturing plant. There it was admitted that decontamination of the plant was part of the feed manufacturer's usual and essential manufacturing process. 680 S.W.2d at 234.

In Tokash, a baking company regularly employed a painter who, at the direction of the baking company manager, hired a second painter to assist in painting the exterior of the baking company building. The second painter was injured on the job. The holding in Tokash was that the injured painter was under the control of the baking company and was an actual employee of the company, not merely a constructive employee by operation of the statute. 163 S.W.2d at 556.

In the first three cases relied on, it was admitted, stipulated or undisputed that the independent contractor's employee was engaging in some duty or activity that was routinely performed in the operation of the owner's usual business. None of those cases involved the construction of an entirely new building. The fourth case, Tokash, did not involve the application of § 287.040. The cases do not support Scott's argument.

There is no infallible test for determining if a particular act by a contractor's employee was part of the landowner's usual business. However, the facts must show that the work included some duty or activity routinely performed in the operation of the owner's usual business conducted on the premises. McGuire v. Tenneco, Inc., 756 S.W.2d 532, 535 (Mo. banc 1988). The facts of this case do not mandate a finding that in the usual course of operating its trucking business on its premises, Edwards routinely constructed buildings. On the contrary, the Commission could and properly did conclude that construction of the building was merely incidental or ancillary to the trucking business. Under such circumstances, the decision of the Commission will not be disturbed. Viselli, 234 S.W.2d at 566; Saale v. Alton Brick Co., 508 S.W.2d 243, 248 (Mo.App.1974); Scott v. Morrison Truck & Tractor Co., 422 S.W.2d 353, 357 (Mo.App.1967); Morehead v. Grigsby, 234 Mo.App. 426, 132 S.W.2d 237, 241 (1939). Scott's point on appeal is without merit.

II.

In Johnston's brief on appeal, he claims not to have been acting as a partner in Rainbow Buildings, but in his individual capacity when he entered into the contract with Edwards and employed Scott. Relying on Crall v. Hockman, 460 S.W.2d 668 (Mo. banc 1970), Johnston argues that for workers' compensation purposes, individual employees of one of the partners are not attributable to the partnership, because the partnership is treated as a separate employing entity. Thus, the election to accept the provisions of the Workers' Compensation Act by the "Rainbow Buildings" entity was not binding on him individually.

Johnston correctly points out that Brollier v. Van Alstine, 236 Mo.App. 1233, 163 S.W.2d 109 (1942), relied on by the Commission...