Snethen v. American Compressed Steel, 22049

• Decision Date: 04 October 1954
• Docket Number: No. 22049,22049
• Parties: Raymond E. SNETHEN, Claimant-Appellant, v. AMERICAN COMPRESSED STEEL, Inc., and Bituminous Casualty Corporation, Respondents, and Marshall Crose, d/b/a Marshall Crose Scrap Iron Company, Employer.
• Court: Missouri Court of Appeals

Page 850

272 S.W.2d 850

Raymond E. SNETHEN, Claimant-Appellant, v. AMERICAN COMPRESSED STEEL, Inc., and Bituminous Casualty Corporation, Respondents, and Marshall Crose d/b/a Marshall Crose Scrap Iron Company, Employer.

No. 22049.

Kansas City Court of Appeals, Missouri.

Oct. 4, 1954.

Marcy K. Brown Jr., Ben E. Pener, Kansas City, for appellant.

Clyde J. Linde, Billy S. Sparks, Kansas City, Langworthy, Matz & Linde, Kansas City, of counsel, for respondents.

SPERRY, Commissioner.

This is an appeal by Raymond E. Snethen, plaintiff from a circuit court judgment affirming an award by the Industrial Commission denying him compensation for injuries received while allegedly employed by American Compressed Steel, Inc.

Defendant, American Compressed Steel, Inc., was at all times herein mentioned, engaged in buying, processing, and selling scrap steel and cast iron, at its place of business, at 407 Liberty, Kansas City, Missouri. Plaintiff was injured while dynamiting an old rock crusher, at Garnett, Kansas, that was being junked and delivered to defendant.

Plaintiff testified to the effect that Marshall Crose, in 1947, owned and operated a junk yard at Appleton City, Missouri; that plaintiff was employed by Crose, at that place, for a time; that plaintiff ceased working for Crose and was employed at an elevator in Appleton City, Missouri, in 1948, when an employee of Crose drove a rented pickup truck from Kansas City to Appleton City and requested that plaintiff come to Kansas City to see Crose about a job; that plaintiff drove the truck back to Crose's home in Kansas City, where they talked; that, next day, Crose and plaintiff drove to defendant's place of business and talked to Everett Rust, defendant's foreman; that Rust and Crose said: 'We have some stuff (meaning junk iron and steel) at Columbia'; that the three went to Garrett rock crusher at Columbia, where they looked at some junk; that Rust 'told I and Marshall to go down and wreck that and haul it in'; that Crose gave Garrett a check, which looked like defendant's check; that they returned to Kansas City; that, next morning, plaintiff went with Crose, in his truck, to defendant's place; that Rust weighed it, they got some tools and some gas for the cutting torch, and drove to Columbia; that Mr. Byer, defendant's manager, was present when the truck was weighed; that Rust came to Columbia the first day; that Rust said that plaintiff would be paid 50cents per ton for cast and 25cents for steel that was prepared; that they cut up old trucks and other junk and hauled it to defendant, where it was weighed and unloaded; that Rust came to Columbia a few times while the work was being done, and brought supplies; that he instructed as to size of pieces to be cut; that Byer would pay plaintiff once a week when he was there, otherwise he gave the money to Crose, who paid plaintiff; that he was paid $20 to $30 per week, according to tonnage; that Social Security payments were deducted; that after the Columbia job was finished he and Crose hauled junk, in Crose's truck, for defendant; that he was instructed as to what to do by Rust and Crose; that he worked in the yard at times when not otherwise employed, and was paid by Byer and Crose at the rate of $4 per day; that Rust and Crose told him 'We bought' a rock crusher at Garnett, Kansas, and want to move it up for defendant; that plaintiff, Crose, and one Carter weighed Crose's truck, picked up tools and supplies, and went to Garnett, Kansas, where they worked for about two months; that Crose took the workmen down and worked with them; that they would bring back junk, which would be unloaded by defendant's magnetic crane, under Rust's directions; that he was paid by Crose and Byer, in currency, sometimes one would pay, sometimes the other; that Rust came to Garnett several times in defendant's pickup truck and brought supplies; that he would give instructions as to the work; that after that work was finished he went to Kansas City and worked, as before, with Crose, hauling for defendant, and in defendant's yard, cleaning junk; that he was paid by Byer according to the work done; that, after a few weeks, he went back to Garnett to finish cleaning up the junk there; that Crose and Byer told him to go down there for that work; that he worked, at that time, for about a month, and was injured during the latter part of August, 1949, while on the job; that he was paid alternately by Crose and Byer, from $30 to $40 per week, by whichever one he happened to see. Plaintiff stated that he heard Crose and Byer talk about Byer having loaned Crose money to purchase the truck used by Crose in hauling scrap. No income tax was ever deducted from plaintiff's pay.

Clyde Spruell, plaintiff's brother-in-law, worked at preparing scrap, at Garnett and was paid by Crose, sometimes and, at others, by Byer. Social Security was deducted. He was not working on the project when plaintiff was injured, but had worked there prior to plaintiff's employment.

Mr. Conway, secretary of a truck leasing concern, stated that his company made truck rentals to Crose by Rust, to Rust by Crose, and 29 rentals to Crose, for which plaintiff signed for six. One rental was made to D. F. Carter for defendant.

Mr. Crose testified to the effect that he bought scrap iron, and processed and sold it for a profit; that he had a truck in which he hauled iron; that Byer had helped him to finance the truck; that no other company or person had any interest in the business which he carried on; that he hired men to help him; that they shared profits with him, after deducting truck and other expenses; that plaintiff was Crose's employee at the time he was injured, but worked for defendant in its yards, when Crose had nothing for him to do; that Crose sometimes hauled iron for defendant, for hire working by the ton; that, on the Garnett job, he was operating on his own and defendant had no interest in the operation other than that Byer had advanced money to Crose to deposit on the scrap before operations began; that said 'advance' was repaid by delivering scrap to defendant from the Garnett job; that Rust sometimes cut in with Crose for a share of profit. Crose was working at another scrap yard at the time of the hearing before the referee.

Mr. Reiz, bookkeeper for defendant, testified to the effect that defendant hired no haulers, but contracted its trucking on the basis of ton miles; that defendant owned no trucks and bought junk from others over the scales at its yard; that defendant would sort, process, and sell said junk to its customers.

Mr. Byer testified to the effect that plaintiff was never an employee of defendant, except when Crose had nothing for him to do, when he...