State ex rel. Superior Mineral Co. v. Hostetter

• Decision Date: 30 July 1935
• Citation: 85 S.W.2d 743,337 Mo. 718
• Parties: State of Missouri at the Relation of Superior Mineral Company (Employer) and Constitution Indemnity Company (Insurer), Relators, v. J. D. Hostetter, William Dee Becker and Edward J. McCullen, as Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

85 S.W.2d 743

337 Mo. 718

State of Missouri at the Relation of Superior Mineral Company (Employer) and Constitution Indemnity Company (Insurer), Relators, v. J. D. Hostetter, William Dee Becker and Edward J. McCullen, as Judges of the St. Louis Court of Appeals

Supreme Court of Missouri

July 30, 1935

Rehearing Denied July 30, 1935.

Writ Quashed.

A. A Alexander and L. A. Robertson for relators.

(1) As to the occupancy of the land and right to mine thereon, that of licensor and licensee -- Woodruff having an interest in the nature of and akin to a leasehold estate for the fixed term of three years. Secs. 13593, 13594, R. S. 1929; Robinson v. Mining Co., 55 Mo.App. 667; Ashcraft v. Mining Co., 106 Mo.App. 632; Arbuthnot v. Mining Co., 115 Mo.App. 605; Mining Co. v. Hodge, 185 Mo.App. 145; Davis v. Solomon, 243 S.W. 410. (2) As to the right, interest and property in the ore or mineral dug or mined on the land, that of buyer and seller of a commodity. Secs. 13595, 13596, R. S. 1929; Huthmacher v Harris, 38 Pa. St. 498; Edwards v. Baldwin Piano Co., 79 Fla. 143, 83 So. 917; Rawleigh Co. v McCoy, 96 Ore. 480; Edward v. Ioor, 205 Mich. 623; Watson v. Odell, 58 Utah 283; Mansfield v. Agricultural Assn., 154 Cal. 147; Western Mass. Ins. Co. v. Riker, 10 Mich. 281; Cole v. Laird, 121 Iowa 149; Barrie v. United Rys. Co., 138 Mo.App. 651; Wheless v. Grocer Co., 14 Mo.App. 585; Burkhardt v. Decker, 221 Mo.App. 1070, 295 S.W. 840; Loud v. St. Louis Union Trust Co., 313 Mo. 596. (a) When the subject matter of the contract is a chattel to be afterwards delivered, then, although work and labor are to be done on such chattel before delivery, the contract is one of sale. Burrell v. Highleymann, 33 Mo.App. 189; Pike Electrical Co. v. Drug Co., 42 Mo.App. 272; Schmidt v. Rozier, 121 Mo.App. 309; Planing Mill Co. v. McCormack, 127 Mo.App. 352; Monument Co. v. Geary, 210 Mo.App. 49; Pratt v. Miller, 109 Mo. 84; Henrikson v. Packing Co., 109 Wash. 644. (3) In holding that Woodruff was an independent contractor and that the mining statutes of Missouri furnish the basis of a contract between the Superior Mineral Company and Woodruff, under which Woodruff, as a licensee, mined tiff upon the Superior Mineral Company's property, and that the mining of the ore under the facts in the case was a service rendered by the miner (Woodruff) to the mining company (Superior Mineral Company), the discussion and opinion of the Court of Appeals is in conflict with the following controlling decisions of the Supreme Court: Coul v. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 758; McGrath v. St. Louis, 215 Mo. 191; Flori v. Dolph, 192 S.W. 949. And is in conflict with the following express statutes of the State of Missouri: Secs. 13593, 13594, 13595, 13596, R. S. 1929; Sec. 3308, subdivision (b), R. S. 1929; Sec. 3342, subdivisions (3) and (4), R. S. 1929. And is in conflict with the following decisions of the Kansas City Court of Appeals: Robinson v. Mining Co., 55 Mo.App. 662; Ashcraft v. Mining Co., 106 Mo.App. 627; Arbuthnot v. Mining Co., 115 Mo.App. 600. And is in conflict with the following decisions of the Springfield Court of Appeals: Mining Co. v. Hodge, 185 Mo.App. 138; Davis v. Solomon, 243 S.W. 410. (4) In holding that the relationship existing between the Superior Mineral Company and Woodruff, as to the right, interest and property in the ore or mineral dug or mined on the land, was not that of buyer and seller of a commodity, the decision and opinion of the Court of Appeals is in conflict with the following controlling decisions of the Supreme Court: Loud v. St. Louis Union Trust Co., 313 Mo. 596; Pratt v. Miller, 109 Mo. 84; Brown v. Trinidad Asphalt Mfg. Co., 210 Mo. 269; Fitzgerald v. Barker, 85 Mo. 22. And is in conflict with the following decisions of the Kansas City Court of Appeals: Burkhardt v. Decker, 221 Mo.App. 1066, 295 S.W. 840; Monument Co. v. Geary, 210 Mo.App. 50. And is in conflict with the following express statutes of the State of Missouri: Secs. 13593, 13594, 13595, 13596, R. S. 1929.

Henry C. Stoll for respondents.

(1) The statutory mining license did not confer upon or vest in Woodruff any title, interest or estate in the land occupied and controlled by the Superior Mineral Company, but was simply an authority to use it for the purpose of mining. Mining Co. v. Hodge, 185 Mo.App. 146; Joplin Supply Co. v. West, 149 Mo.App. 93, 130 S.W. 156; 37 C. J. 284, sec. 183. (2) The relationship of buyer and seller did not and could not exist between Woodruff and the Superior Mineral Company with respect to ore mined by him on its premises because title to the ore at no time vested in Woodruff. Sec. 13597, R. S. 1929; Rochester v. Gate City Mining Co., 86 Mo.App. 450; Chitwood v. Langan Zinc Co., 93 Mo.App. 229. (3) Relators urge that the opinion of the St. Louis Court of Appeals is in conflict with several statutes, and in conflict with the decisions of the Kansas City Court of Appeals, the Springfield Court of Appeals and the Supreme Court. In certiorari proceedings only opinions of the Supreme Court are determinative of the issues raised, therefore any other conflict alleged by relators must be disregarded. State ex rel. Ely & Walker v. Cox, 73 S.W.2d 746. (4) As this is a certiorari proceeding, which can be successfully prosecuted by relators only upon the ground that the St. Louis Court of Appeals exceeded its jurisdiction by violating its constitutional duty to follow the last previous ruling of this court (Sec. 6 of 1884 Amendment to Art. VI, Mo. Const.), we are here concerned only with the question of the alleged conflict of opinion, and the correctness or incorrectness of said opinion is not and cannot be made an issue in this proceeding. State ex rel. Weisheyer v. Haid, 26 S.W.2d 940; State ex rel. Dean v. Daues, 14 S.W.2d 993; State ex rel. City of Macon v. Trimble, 12 S.W.2d 730; State ex rel. Ely & Walker Dry Goods Co. v. Cox, 73 S.W.2d 747; State ex rel. Ott v. Trimble, 28 S.W.2d 75; State ex rel. Arndt v. Cox, 38 S.W.2d 1079, 327 Mo. 790; State ex rel. Continental Life v. Trimble, 38 S.W.2d 1017, 327 Mo. 781.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an original proceeding in certiorari, seeking to quash the opinion of the St. Louis Court of Appeals in the case of Jack Woodruff v. Superior Mineral Company and Constitution Indemnity Company, No. 22918, 70 S.W.2d 1104. The case was an appeal from a judgment of the Circuit Court of Washington County, which reversed an award of the Workmen's Compensation Commission to Woodruff, of six dollars per week for life for the loss of his right eye. The commission's finding was that Woodruff was working on the premises of the mining company as an independent contractor, and that, under Section 3308(a), Revised Statutes 1929, the mining company was required to pay him compensation. The Court of Appeals reversed the judgment of the circuit court and remanded the cause with directions to enter judgment affirming the commission's award.

We must take the facts from the opinion of the Court of Appeals. [State ex rel. Sei v. Haid, 332 Mo. 1061, 61 S.W.2d 950; State ex rel. Consolidated School Dist. No. 2 v. Haid, 328 Mo. 739, 41 S.W.2d 806; State ex rel. Arndt v. Cox, 327 Mo. 790, 38 S.W.2d 1079; State ex rel. Union Biscuit Co. v. Becker, 316 Mo. 865, 293 S.W. 783.] They are stated therein, as follows:

"Superior Mineral Company, a corporation, is engaged in the business of mining barytes upon what is known as the DeLore property in Washington County, Missouri, the said company operating under a lease subject to royalty made by DeLore to one William C. Wolf, which lease was assigned to said company. . . . In the summer of 1930 Woodruff left the city of St. Louis and moved to Washington County where he joined his cousin, Jim Greenley, who was mining tiff upon the land under lease to the defendant company. Woodruff assisted Greenley in his work, and the tiff which they mined was delivered to the defendant company; the money received therefor being divided between them. In the fall of 1930 Woodruff moved into a small house belonging to the defendant, where he was permitted to live without paying rent, and with the permission and consent of the defendant he entered upon the leased land and dug tiff and other mineral thereon until the day of his injury in January, 1932. The tiff which Woodruff mined was hauled to the mill of the defendant who retained the royalty and deducted the cost of the hauling and paid over the balance remaining to the claimant miner. It is conceded that no orders were given to Woodruff as to where or how or how much tiff he should mine, or when to start or when to quit, and that Woodruff worked as long or as little as he chose, and that he himself furnished the necessary tools and equipment needed for the work. . . . The defendant failed to post a printed statement of the terms, etc., as required by Section 13593, Revised Statutes 1929, and therefore plaintiff's right to mine upon the property leased by defendant became fixed under the terms of Section 13594, Revised Statutes 1929. . . . The work which the claimant was engaged in was that of mining upon the property of the defendant, . . . mining was the usual business carried on by the defendant company, and . . . claimant met with injury in the course of his mining upon the premises of the defendant."

The Court of Appeals reviewed the provisions of the mining statutes and held that Woodruff's rights under them were, as follows:

"Plaintiff therefore, had a license to continue with his mining for a period of three years subject to defendant's 'lien on all minerals taken or dug therefrom for the royalty due thereon until the same is paid.' And by Section 13595, Revised Statutes 1929, plaintiff had...