Smith v. Grace

• Decision Date: 03 March 1942
• Parties: Richard H. Smith, Employee, Appellant, v. Robert Grace, doing business as Grace Contracting Company, Employer, Respondent
• Court: Missouri Court of Appeals

159 S.W.2d 383

237 Mo.App. 91

Richard H. Smith, Employee, Appellant, v. Robert Grace, doing business as Grace Contracting Company, Employer, Respondent

Court of Appeals of Missouri, St. Louis District

March 3, 1942

Motion for Rehearing Overruled March 17, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. Thomas J. Rowe Judge.

Reversed and remanded.

Claud C. Cox and Joseph Nessenfeld for appellant.

(1) Whether an employer is a major employer and within the Act is a question of fact to be determined by the Commission. Barlow v. Shawnee Inv. Co., 229 Mo.App. 1, 48 S.W.2d 35; Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; Murray v. Braudis (Mo. App.), 123 S.W.2d 241; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d 911; Sonnenberg v. Berg's Market, 227 Mo.App. 391, 55 S.W.2d 494; Barlow v. Shawnee Inv Co., 229 Mo.App. 1, 48 S.W.2d 35. The relationship of employee, as well as that of independent contractor, is contractual. The term "contract labor" applied by the employer to numerous persons performing services for him is applicable to an employee. The Commission could properly find that such persons were employees. Miller v. St Louis Realty & Securities Co. (Mo. App.), 103 S.W.2d 510; Heisey v. Tide Water Oil Co. (Mo. App.), 92 S.W.2d 922; Horn v. Asphalt Products Corp. (Mo. App.), 131 S.W.2d 871. (2) A fact necessary to be found to support an award may be shown by circumstantial evidence. The finding may be based upon a reasonable probability. Hence, it was necessary only to present sufficient circumstantial evidence to make it reasonably probable that Grace was a major employer. The evidence was adequate to prove this. Leonard v. Fisher Body Co., St. Louis Division (Mo. App.), 137 S.W.2d 604; Zimmerman v. Goodfellow Lumber Co. (Mo. App.), 56 S.W.2d 608; Fadem v. City of St. Louis (Mo. App.), 99 S.W.2d 511. (3) In determining the sufficiency of the evidence to sustain the Commission's finding, the Court will look only to the evidence which is most favorable, adding thereto all reasonable inferences of fact which may be drawn therefrom, as is done in passing on a demurrer to the evidence in ordinary civil actions. Moorman v. Central Theatres Corp. (Mo. App.), 98 S.W.2d 987; Carnahan v. Kurn (Mo. App.), 113 S.W.2d 824; Morehead v. Grigsby (Mo. App.), 132 S.W.2d 237; Erwin v. Railway Express Agency (Mo. App.), 128 S.W.2d 1077; Edwards v. Al Fresco Advertising Co., 340 Mo. 342, 100 S.W.2d 513. (4) The weight of the evidence and the credibility of the witnesses are matters for the Compensation Commission alone; it acts as a jury in this respect. Questions of the burden of proof are not to be conidered by the Court and are no longer in the case after the Commission has made its finding. Leilich v. Chevrolet Co., 328 Mo. 112, 40 S.W.2d 601; Edwards v. Al Fresco Advertising Co., 340 Mo. 342, 100 S.W.2d 513; Heisey v. Tide Water Oil Co. (Mo. App.), 92 S.W.2d 922. (5) The findings of fact of the Commission are final and conclusive on appeal if supported by any substantial competent evidence. Baker v. Schladerbach (Mo. App.), 131 S.W.2d 897; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601. (6) The Workmen's Compensation Act and all of its provisions, including Section 3308, are to be liberally construed as to the persons to be benefitted; and any doubt as to the right to compensation should be resolved in favor of the employee. Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Doyle v. Erard, 227 Mo.App. 384, 54 S.W.2d 1006; Crabtree v. Ramsey (Mo. App.), 115 S.W.2d 14; Heisey v. Tide Water Oil Co. (Mo. App.), 92 S.W.2d 922; Friede v. George Lytle, Inc. (Mo. App.), 127 S.W.2d 40; Betz v. Columbia Telephone Co., 224 Mo.App. 1004, 24 S.W.2d 224.

George W. Wellman for respondent.

(1) "Major employer" means an employer who has more than ten employees regularly employed, and "minor employer" one who has ten or less regularly employed. R. S. of Mo. 1929, Sec. 3302; Elsas v. Montgomery Elevator Co., 50 S.W.2d 130, 133. (2) Minor employer specifically exempted from liability. R. S. of Mo. 1929, Sec. 3303, Subdivision 5. (3) Casual employees are excluded from the count in determining whether the employer is in the major class. R. S. of Mo. 1929, Sec. 3303, Subdivision 3; Crevisour v. Hendrix, 136 S.W.2d 404, 414. (4) The compensation act does not contemplate mere temporary, although regular recurring employment voluntary, or whose employment has been terminated. C. J. Vol. 71, p. 399, sec. 132; p. 400, sec. 135; p. 497, sec. 219; Crevisour v. Hendrix, 136 S.W.2d 404. (5) Injured person claiming under Workmen's Compensation Act must bring employer within the act. Pfitzinger v. Shell Pipe Line Corp., 46 S.W.2d 955, 957; Crevisour v. Hendrix, 136 S.W.2d 404, 412. (6) An independent contractor is distinguished from employee in that an independent contractor is not accountable to an employer, except as to results. Skidmore v. Haggard, 110 S.W.2d 726, 729 et seq.; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909, 916. (7) Provisions not within the Workmen's Compensation Act cannot be interpolated therein to affect the rights of the parties and the rights of the parties are to be gathered from the entire act. Elsas v. Montgomery Elevator Co., 50 S.W.2d 130, 133; Clingan v. Carthage Ice and Cold Storage Co., 25 S.W.2d 1084, 1085; Betz v. Columbia Telephone Co., 24 S.W.2d 224, 228; Sayles v. Kansas City Structural Steel Co., 128 S.W.2d 1046, 1051. (8) Different sections of a statute bearing on the same subject matter must be construed, harmonized, and read together with other sections touching the same subject. Betz v. Columbia Telephone Co., 24 S.W.2d 224, 228. (9) Under Subsection (a) of Sec. 3308, R. S. of Mo. 1929, liability of employer is confined to place where employee is injured, and under Subsection (c) thereof, to the place where the work is being performed. Schraner v. Massman, 48 S.W.2d 104, 108; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909, 912; Doyle v. Erard, 54 S.W.2d 1006, 1008. (10) (a) The evidence to support finding that an employer is a major employer and subject to Compensation Act must be competent, in law, and it is a question of law whether sufficient competent evidence is in the record to show employer within the act. Barlow v. Shawnee Investment Co., 48 S.W.2d 35, 44 et seq.; Morris v. Dexter Mfg. Co., 40 S.W.2d 750, 751. (b) To sustain finding of Workmen's Compensation Commission, the evidence must be substantial and competent. Woods v. American Coal and Ice Co., 25 S.W.2d 144; Zickefoose v. Walker & Williams 79 S.W.2d 511, 513; Nordhaus v. Lechtman Printing Co., 84 S.W.2d 422, 423. (c) Appellate Court will examine record as to each employee for the purpose of determining whether the evidence showed the employer to be a major employer, and whether the testimony will support the award. Crevisour v. Hendrix, 136 S.W.2d 404, 409; Barlow v. Shawnee Investment Co., 48 S.W.2d 35, 46; Hammock v. West Plains Lumber Co., 30 S.W.2d 650, 651. (d) Finding of Workmen's Compensation Commission cannot be on testimony which falls short of proof or the establishment of fact or on conjecture or surmise. Woods v. American Coal & Ice Co., 25 S.W.2d 144, 146; Jackson v. Aetna Bricklaying & Cons. Co., 59 S.W.2d 705, 708; Stapleton v. Gunn, 69 S.W.2d 1104, 1105. (11) On appeal under Sec. 3342, R. S. of Mo. 1929, it is not mandatory on Appellate Court on reversal of award to remand to the Workmen's Compensation Commission. Crevisour v. Hendrix, 136 S.W.2d 404, 409, 414.

Anderson, J. Hughes, P. J., and McCullen, J., concur.

OPINION

ANDERSON

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, Missouri, reversing an award of the Missouri Workmen's Compensation Commission, in favor of the claimant, appellant, and against Robert Grace, doing business as Grace Contracting Company. The commission found that respondent, although not the immediate employer of claimant, was liable for compensation under Section 3308 (c), Revised Statutes Missouri 1929, now Section 3698(c), Revised Statutes Missouri 1939.

The record shows that respondent had a contract with the Home Owners' Loan Corporation to renovate and repair a building at 5041-43 Kensington Avenue in the City of St. Louis, Missouri. It was entered into on September 30, 1937, and by its terms required respondent to commence work within two days and to complete same within fifteen days, unless prevented from doing so by unavoidable causes beyond his control. The contract, which provided for work consisting of carpentry, wall papering, interior and exterior painting, electrical wiring, heating, sheet metal work, plastering, marble work, glazing, sodding, cleaning up, and furnishing window shades, was performed mainly through subcontractors. Prior to October 6, 1937, the date claimant was injured, the carpenter work had been sub-let to one Gus Ernst, and the sheet metal work to Jesse Allison, the employer of the claimant herein.

On the day in question Allison sent three of his regular employees, the claimant, William Jordan, and John Jordan, to the Kensington Avenue premises, with instructions to repair the furnace and clean out the radiators in said building. While thus employed, claimant received the injury which is the basis of this proceeding, and which consisted in the loss of an eye, due to a piece of metal lodging therein while claimant was engaged in cutting a pipe with a hammer and chisel.

The sole point at issue upon the hearing was whether respondent was a major employer within the meaning of the compensation act. Claimant admitted that he was not a direct employee of respondent, and liability was sought to be imposed upon him under...