State ex rel. W. J. Menefee Const. Co. v. Curtis

• Decision Date: 05 January 1959
• Docket Number: No. 7773,7773
• Citation: 321 S.W.2d 713
• Parties: STATE ex rel. W. J. MENEFEE CONSTRUCTION COMPANY, Petitioner, v. Honorable Claude E. CURTIS, Judge of the Circuit Court of Laclede County, Missouri, and of the 19th Judicial Circuit, Respondent.
• Court: Missouri Court of Appeals

Page 713

321 S.W.2d 713

STATE ex rel. W. J. MENEFEE CONSTRUCTION COMPANY, Petitioner, v. Honorable Claude E. CURTIS, Judge of the Circuit Court of Laclede County, Missouri, and of the 19th Judicial Circuit, Respondent.

No. 7773.

Springfield Court of Appeals, Missouri.

Jan. 5, 1959.

Walker, Daniel, Clampett, Rittershouse & Ellis, Springfield, for petitioner.

Allen, Woolsey & Fisher, Springfield, for respondent.

McDOWELL, Judge.

Prohibition. This is an original proceeding in prohibition seeking to prevent respondent, Honorable Claude E. Curtis, Judge of the Circuit Court of Laclede County, Missouri, from proceeding in an alleged excess of the jurisdiction of that court to hear and determine the issues in an action for personal injuries brought by Harry Chew, Jr., plaintiff v. W. G. Menefee Construction Company, defendants. Respondent's return to our preliminary rule admitted the facts pleaded in relator's petition, denied the conclusions of law pleaded therein, denied that the petition for damaged failed to state a cause of action and denied that the trial court was without jurisdiction to hear and determine the issues presented in the damage action; and denied that plaintiff is an employee of the defendant Menefee Construction Company, within the meaning of the Missouri Workmen's Compensation Law, Section 287.150 RSMo 1949, V.A.M.S., and sought discharge of our rule upon the grounds that plaintiff's application for prohibition fails to state grounds upon which relief can be granted and for the issuance of a writ of prohibition and that petitioner has an adequate remedy at law. Relator thereupon filed motion for judgment on the pleadings. The cause was briefed, argued and submitted upon the facts and issues pleaded in the petition and return.

The action out of which this proceeding arose is case No. 3959 in the Circuit Court of Laclede County entitled Harry Chew, Jr, plaintiff v. W. J. Menefee Construction Company, Frank Laughlin and George W. Smith, defendants. The petition alleged that on July 22, 1957, plaintiff suffered personal injuries when his 1953 Chevrolet Coupe collided with a steel cable attached to two Caterpillar motor graders, operated by the agents and servants of defendant W. J. Menefee Construction Company, at the time engaged in working on the shoulders of new U. S. Highway 66, in Laclede County, Missouri; that the collision and injuries sustained were due to the negligence of said employees and servants of defendant (setting out the grounds of negligence relied on).

It is admitted by the pleadings that new U. S. Highway 66 was still under construction and not open for travel to the public; that Koss Construction Company held the general contract for said work, the contract having been let by the State of Missouri acting through the State Highway Commission; that said Koss Construction Company had subcontracted a portion of said work to this defendant; that at the time and place of collision between the motor vehicle operated by plaintiff and the cable stretched between the motor graders in question, defendant was engaged in doing its subcontract work; that plaintiff, at the time and place of the collision (described in the petition), was an employee of Koss Construction Company and was acting in the scope of his employment at the time of his injuries; and, that plaintiff, Harry Chew Jr., Koss Construction Company, the general contractor on said project, and defendant Menefee Construction Company, a subcontractor on said project, were operating under and subject to the Missouri Workmen's Compensation Law.

The issue of law presented to this court for determination is whether a subcontractor is a third person under Section 287.150 RSMo 1949, V.A.M.S., against whom an employee of such subcontractor's general contractor may proceed in tort where both general contractor and subcontractor are operating under and subject to the Missouri Workmen's Compensation Law and where such employee, when injured, was acting in the course and scope of his employment.

Petitioner relies upon the Workmen's Compensation Act to establish defendant's immunity from a common law action for damages contending that defendant is not a third person under Sec. 287.150 of the Act.

This issue can only be resolved by a consideration and interpretation of the sections of the Workmen's Compensation Act relating thereto. The Workmen's Compensation Law provides:

Section 287.020 defines 'employee' to mean 'every person in the service of any employer, * * * under any contract of hire, express or implied, oral or written, * * *'.

Section 287.030 defines 'employer' thus:

'The word 'employer' as used in this chapter shall be construed to mean:

'Every person, * * * using the service of another for pay.'

Section 287.040 entitled 'Liability of employer--landlords, contractors, subcontractors' reads:

'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 under this chapter to such contractor, his subcontractors, 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. * * *

'4. In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employees of his subcontractors. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney's fees and expenses of the suit. * * * No such employer shall be liable as in this section provided, if the employee was insured by his immediate or any intermediate employer.'

Section 287.150. 'Injured employee may hold third person, when--effect. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee * * *'.

It is petitioner's position that a proper interpretation of our Workmen's Compensation law that of two men working shoulder to shoulder, one, being the employee of the general contractor, should be entitled to no more benefits and greater advantages than the other.

The law in Missouri is well settled in Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153, that a servant of a subcontractor cannot sue the general contractor when such servant was injured by the negligence of employees of the general contractor when all the parties in the accident were within the Compensation Act and respondent had collected compensation from his immediate employer. The case, as in the case at bar, called for construction of several sections of the Compensation Act. On page 154 of 121 S.W.2d the court stated:

'* * * an employee is a person in the service of an employer under any contract of hire. But the four subsections of Sec. 3308, Mo.St.Ann. * * *, create certain constructive relationships of employer and employee where there is no contract of hire and exempt the employer from liability for compensation on condition. Sec. 3309, Mo.St.Ann. Sec. 3309, p. 8244, permits the employee to sue at common law by subrogee when his injuries were caused by a 'third person'. * * *

"(d) In all cases mentioned in the preceding subsections, the immediate contractor or subcontractor shall be liable as an employer of the employes of his subcontractors. All persons so liable may be made parties to the proceedings on the application of any party. The liability of the immediate employer shall be primary, and that of the others secondary in their order, and any compensation paid by those secondarily liable may be recovered from those primarily liable, with attorney's fees and expenses of the suit. Such recovery may be had on motion in the original proceedings. No such employer shall be liable as in this section provided, if the employe was insured by his immediate or any intermediate employer.' (Italics ours.) * * *

'Further, while Sec. 3309 provides that if the employee has a cause of action for his injuries against a third person his employer shall be subrogated thereto, yet it is settled that the employee also may sue, * * *

'We are, therefore, squarely confronted with the single question whether the employee of a subcontractor if negligently injured by the general contractor can sue the latter for damages at common law as a third person and at the same time collect compensation from his immediate employer under the Compensation Act when the immediate employer carries liability insurance covering the casualty and all the other facts bring the case within the Compensation Act. * * *'

It was contended that the last sentence of subsection (d) of Sec. 3308 makes the remote employer a stranger to the employment of a 'third person' within the meaning of the Act. The court stated this law on page 156 of 121 S.W.2d:

'* * * However, it does not say he shall no longer be deemed an employer, and that he shall be considered as outside the protection of the Act. The subsection deals with employers under various degrees of liability ranging from primary liability to nonliability and treats them all as being within the Act. There is no disclosure of any legislative intent to outcast a remote employer because he avails...