State ex rel. Potashnick v. Fulbright

• Decision Date: 02 March 1943
• Docket Number: 38224
• Citation: 169 S.W.2d 59,350 Mo. 858
• Parties: State of Missouri at the relation of R. B. Potashnick and Hartford Accident and Indemnity Company, Relators, v. David E. Blair, James F. Fulbright and Robert J. Smith, Judges of the Springfield Court of Appeals, Respondents
• Court: Missouri Supreme Court

169 S.W.2d 59

350 Mo. 858

State of Missouri at the relation of R. B. Potashnick and Hartford Accident and Indemnity Company, Relators, v. David E. Blair, James F. Fulbright and Robert J. Smith, Judges of the Springfield Court of Appeals, Respondents

No. 38224

Supreme Court of Missouri

March 2, 1943

Opinion of Court of Appeals quashed.

Finch & Finch and Freeland L. Jackson for R. B Potashnick and Hartford Accident & Indemnity Company relators.

(1) There may be a clear contrariety of opinion on a question of law without having two cases exact in history or facts, the latter not being necessary for the application of this court's superintending control. State ex rel Kirkwood v. Reynolds, 175 S.W. 575. (2) An employee of an independent contractor is not entitled to compensation from the property owner or the general contractor, except where the injury occurs on or about the premises of the owner or general contractor, and the act excludes injuries to such employees received in all other places. Section 3698, R. S. 1939; Rutherford v. Tobin Quarries, Inc., 82 S.W.2d 918. (3) The term "on the premises," as it appears in Section 3698, R. S. Mo. 1939, excludes public places, and the opinion of respondents in holding that the Frisco team track where Roy Bullock received his injuries while unloading a railroad car was on or about the premises of Potashnick, is in conflict with the holding of the Supreme Court in the following case: Rutherford v. Tobin Quarries, Inc., 82 S.W.2d 918. (4) By provision of the Constitution of Missouri railroads are declared to the public highways. Sec. 14, Art. XII, Mo. Constitution. (5) The term "on the premises," as used in Section 3698, R. S. Mo. 1939, has been held by this court to mean a place under the exclusive control of the owner or general contractor, and excludes an invitee on such premises, and the holding of respondents that Potashnick had or could have had exclusive control of the Frisco team track on the right of way of the railroad company is in conflict with the rules laid down by the Supreme Court in the following cases: Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174; Brady v. Terminal Railroad Assn., 340 Mo. 841, 102 S.W.2d 903; Rutherford v. Tobin Quarries, Inc., 82 S.W.2d 918.

Tedrick & Tedrick and Byron Kearbey for respondents.

(1) On certiorari the Supreme Court takes the facts stated in the opinion of the court as the facts in the case. State ex rel. Thompson v. Shain, 159 S.W.2d 582; State ex rel. Ry. Co. v. Shain, 134 S.W.2d 89; State ex rel. Massman Const. Co. v. Shain, 130 S.W.2d 491; Mo. Dig., Certiorari, Key No. 56(1). (2) The Supreme Court is not concerned with the correctness of the opinion of the Court of Appeals, but its scope of review is limited to determining whether there is a conflict between the opinions of the Court of Appeals and the Supreme Court. State ex rel. and to Use of Heuring v. Allen, 112 S.W.2d 843; State ex rel. Ocean Accident & Guarantee Corp. v. Hostetter, 108 S.W.2d 17; State ex rel. Ry. Co. v. Shain, 134 S.W.2d 89; Mo. Dig. Certiorari, Key No. 64(1). (3) Respondents contend that the opinions in the cases cited by relators in their brief, viz.: (a) Rutherford v. Tobin Quarries, Inc., 82 S.W.2d 918, (b) Brady v. Terminal Railroad Assn., 102 S.W.2d 903, and (c) Sargent v. Clements, 88 S.W.2d 174, are not in conflict with the opinion in the instant case. (4) The premises of the employer is any place where in the usual operation of his business it is necessary for those whom he has employed to do the work, to be while doing it. Simpson v. New Madrid Stave Co., 52 S.W.2d 615. (5) Regardless of the fact whether Potashnick was an invitee or licensee or whether his employee Watkins was an independent contractor or subcontractor, the claimant is entitled to recover in this case, for he was injured "on the premises" as that term is defined by the courts of this State, in compensation cases. Sec. 3698a, R. S. 1939; Crabtree v. Ramsey, 115 S.W.2d 14; Cates v. Williamson, 117 S.W.2d 655; Simpson v. New Madrid Stave Co., 52 S.W.2d 615; Pruitt v. Harker, 43 S.W.2d 769; Cobb v. Standard Accident Ins. Co., 31 S.W.2d 573. (6) Exclusive control as used in the instant case, when applied to the control appellant Potashnick had over the carload of poles and the place where same was being unloaded, is not to be given its unlimited meaning but must be understood to be subject to the control of the railroad company. State ex rel. Garner v. M. & K. Tel. Co., 88 S.W. 41. (7) The term "premises" as used in Section 3698a, R. S. Mo. 1939, should be liberally construed and applied. Sargent v. Clements, 88 S.W.2d 174.

OPINION

Hyde, J.

This is certiorari to the Springfield Court of Appeals by which relator seeks to quash its decision in the case of Bullock v. Potashnick, 162 S.W.2d 607, on the ground of conflict with decisions of this court. Bullock filed a claim under the Workmen's Compensation Act and the Commission made an award in his favor. This was affirmed by the circuit court and by the Court of Appeals.

A stipulation as to facts was made as follows:

"It is stipulated and agreed that R. B. Potashnick had a contract with the Ozark Border Electric Co-operative of Poplar Bluff, Missouri, for the construction of electric lines out of Poplar Bluff, Missouri; that R. B. Potashnick was a major employer coming under the Workmen's Compensation Act, and insured by the Hartford Accident & Indemnity Company; that R. B. Potashnick entered into a verbal contract with Robert Watkins to haul poles to be used in the construction of the lines at 30 cents per pole; that Watkins was to and did furnish his own means of transportation, employs his own help, paid them, hired them, discharged them, fixed their hours of service and their rate of pay, being responsible only to Mr. Potashnick for the ultimate result of the work."

The Court of Appeals states the facts concerning the methods of work and the manner of Bullock's injury, as follows:

"Six or eight cars had been shipped by rail and unloaded at Qulin. At the time of respondent's injury a car had been spotted on the Frisco side track for the purpose of being unloaded and during the process a pole fell on respondent's feet. . . . It was the duty of Watkins, under his verbal contract with Potashnick, to get the poles from the cars, and distribute them along the R. E. A. right-of-way according to work sheets showing sizes and heights of poles wanted at various places and at such time and place as they were needed; that in the beginning of the work and for about two weeks Potashnick's foreman went with Watkins to instruct him how to unload and deliver the poles according to the work sheets; that he especially instructed him to get the cars unloaded before demurrage set it. When a car would arrive at Qulin, Potashnick was notified by the railroad agent, and thereupon Potashnick or one of his employees would in turn notify Watkins and instruct him to unload and deliver the poles according to the work sheet that was then furnished him. At times it was necessary to unload a number of them and place them on the ground in order for the workmen to be able to pick out the required size, and the other poles that were unloaded but not then needed were temporarily stacked upon the ground near the track."

The Court of Appeals ruled as to the construction of Section 3698a, R. S. 1939, Mo. Stat. Ann., 3698a, thus:

"The term 'premises' as described in said Section 3698a does not necessarily mean premises owned or leased by the employer, or over which he exercises dominion, but includes any place under the exclusive control of employer, for the time being, where the employer's usual business is being carried on or conducted, and where, in the usual operation of his business it is necessary for his employees to be while doing the work. . . .

"It is true that the railroad company had a right while switching other cars, upon notice to Potashnick, to move the car at such times as other cars were being switched upon such siding or loading track. But aside from this right on the part of the railroad company, Potashnick's control was exclusive. Moreover, the car and the ground adjacent thereto was the place where, in the usual operation of Potashnick's business, it was necessary for his employees to be while doing the work. . . . (We note, however, that employees of Potashnick did not work there at unloading cars but only the employees of the independent contractor.)

"It is true that a consignee going on the railroad right-of-way to unload a car is held, in effect, to be an invitee, in the above cited cases, and bears that relationship to the railroad company. But, notwithstanding that fact, such invitee is lawfully and rightfully on the premises, has exclusive control of the car and the grounds contiguous thereto necessary for the process of unloading, subject only to disturbance by the railway company, while the unloading is being performed, warning first having been...