Thurman v. Fleming-Young Coal Co.

• Decision Date: 03 May 1932
• Docket Number: No. 22172.,22172.
• Citation: 49 S.W.2d 288
• Parties: THURMAN v. FLEMING-YOUNG COAL CO. et al.
• Court: Missouri Court of Appeals

49 S.W.2d 288

THURMAN v. FLEMING-YOUNG COAL CO. et al.

No. 22172.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Rehearing Denied May 18, 1932.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Law by Lon Thurman, claimant, opposed by the Fleming-Young Coal Company, employer, and T. H. Mastin & Co., insurance carrier. An award of the Workmen's Compensation Commission denying compensation was reversed by the circuit court, and the employer and insurance carrier appeal.

Affirmed in part, and cause remanded, with directions.

Fordyce, White, Mayne & Williams and Paul S. Schmid, all of St. Louis, for appellants.

Henry G. Morris, of St. Louis, for respondent.

HAID, P. J.

This is an appeal from an order of the circuit court reversing the award of the Workmen's Compensation Commission.

The referee who first heard the matter made an award in favor of the claimant which he concluded with the statement, "that the insurer contends that the claimant was not an employee yet the employer testified that they collected a premium upon this employee's earnings, and are, therefore, estopped from denying the relationship of employer and employee."

On review by the full commission, the award was reversed with the finding "that the relationship of employer and employee did not exist between the Fleming-Young Coal Company and the claimant and, therefore, compensation must be denied." This ruling of the commission was reversed by the circuit court on the ground that there was not sufficient competent evidence in the record to warrant the making of the award, and that the facts found by the commission do not support its finding.

The abstract contains a large amount of medical testimony, concerning the character and extent of the injury suffered by the claimant, but, since such evidence is unnecessary to a consideration of the question before us, it will not be further referred to.

The claimant was what is referred to as a "jobber" in the coal business, one who accompanies a load of coal from the yard of origin to a convenient dumping place at its destination and who carries the coal from such dumping place into the building where the coal is to be used.

The claimant testified that on January 16, 1930, he was working for the Fleming-Young Coal Company, located at 3806 Market street, St. Louis; that the work consisted of going out on the jobs and loading trucks in the yards, the trucks being loaded from cars and sometimes from bins on the ground; that he obtained his instructions to load a truck from the car or from a bin from the driver of the truck; that after the loading was finished the driver paid for the help rendered in loading such truck, such compensation amounting to 25 cents a load, regardless of the amount loaded; that when requested by the driver he would accompany the load; that he would not necessarily go out with the truck, but only when the driver goes into the office to get his instructions from the boss, who sends the driver out to get a jobber to go along on the truck; that as a rule the jobber who helps load the truck gets the job to put in that coal; that upon arrival at destination the jobber does not help the driver unload the coal, but the driver dumps the truck, departs, and leaves the jobber there; that the jobber then stores the coal for the customer, having taken with him equipment belonging to the company, consisting of a wheelbarrow and a shovel; that sometimes it is necessary to set up runways to get to the place where the coal is to be stored; that the customer would tell him where to put the coal, where he wants it, and the jobber thereupon stores it in the place where the customer directs; that on the day mentioned claimant assisted in loading a truck driven by a man named Shelton, and went out with Shelton; that they arrived at the customer's place about 11 o'clock; asked from whom he had received his directions and what they were, he replied that he had no instructions, but that the driver had told him just to load the coal; that the truck was owned by the company and he helped load it, their destination was 6446 Wise avenue, and that, when they arrived there, the coal was dumped in the street at the curb, the driver left the place, and claimant remained with the wheelbarrow and shovel; that the customer came out and told him to wait and the customer would show him a way to get up to a certain window chute. The claimant then described the manner in which he carried the coal to its storage place, how he came to be injured, and other evidence unnecessary to consider in connection with the matter before us. He then testified that at the house of the customer he obtained a signed slip which he carried back to the company's office and they paid him $2.55 at the rate of $.50 a ton in cash; that his name was on the slip; he made no arrangements with the customer to receive a certain amount from him; that it was the custom for him to receive his money from the office of the coal company when he got back from a job; that he did not know the first day upon which he worked for the Fleming-Young Coal Company; he was on the job all through January; asked whom he went to when he sought a job there, he replied that he went "in the jobber's shack," which is where all the fellows stay to get warm and keep out of the weather until the job comes up from the office; it is a small place; if he does not go out on a job, he does not receive any pay; that he never worked in the yards at the Fleming-Young Coal Company, and has never worked on a regular salary for them; that he would not know for sure how many jobs he had gone out on, since he had never kept count of them, but did not think they amounted to a dozen altogether; he did not remember the exact day upon which he went out on a job for them before the day in question; that on this particular job Mr. Shelton came out there and directed him to go; he did not know how many jobs he had been out on that week, but remembered one; that he was not directed how quickly he had to put in the coal, nor were there any instructions as to the time in which he could put it in, nor did they show him how to put it in; that he was not required to be at the coal yard at a certain hour and did not know if a load of coal went out whether he would get the job; he did not go to the office to make arrangements, and loafed around the shack, but went there because that was where the jobbers belonged.

John O'Hare, a police officer of the city, was the customer to whom the coal was delivered. He testified that he helped claimant put the trestles up and the planks to get the coal to the chute; that he made no arrangements with him as to how he would be paid; that in his order for coal from the Fleming-Young Coal Company he ordered that it be delivered; that it was delivered on January 16, 1930, about 11 o'clock in the morning, and he showed claimant where to put it and helped him put the planks down so that he could run the wheelbarrow; that he signed a slip which the claimant furnished him to take back to the coal company; that about ten or fifteen days after delivery he paid for the coal in cash, the bill consisting of an itemized statement, that is, so much for the coal and so much for delivering it in the basement; that when he ordered the coal from the company he asked what price they were going to charge, and they made two prices, so much flat rate, so much for cash off, and this man would put in the coal; that the price was on the basis of the coal in the basement; that he had nothing to do with putting in the coal; that they were to put the coal in for him.

Lohman Lucas testified that he had followed the work of jobbing coal about seven or eight years, in that time he had worked for five different concerns which he named; that it was the custom among these several coal companies that, after the jobber put the coal in, and the job was satisfactory to the customer, to get a slip signed by the customer and bring it back to the office; that it is necessary to bring back the wheelbarrow and shovel and turn it in before presenting the slip and receiving your money; that they make a check to see whether or not you have turned in the equipment; that sometimes he went out with the same load that he had helped load on the truck; that he received money from two sources, directly from the office and directly from the driver; that he had broken a window sash at a customer's house, but no demand had ever been made upon him by the customer for the damage done and did not know who paid it; that he never had any conversation with the customer as to what amount of money would be paid when he got out there; asked whether or not, if he could not get a job at one coal company, he walked over to another to see if they had any jobs going out and he could get one, he replied that he supposed he could do that, but never had done so; asked whether or not it was customary for some one in the office to come out in the yard at times and supervise as to what work he was to do, in loading the trucks, such as telling him to hurry or indicating that he should work, he replied, "I had cases like that, possibly someone wanted coal immediately, wanted to get it there as quickly as possible"; asked whether any of the higher-ups in the office ever went out and worked along with them, he replied that there were a few who did, but they generally got a man to help him.

On the part of the employer, Harry M. Fleming testified that he was manager for the Fleming-Young Coal Company, a corporation; asked what the custom was as to the storage of coal in homes where the coal would be loaded in trucks and from the trucks into the basement, he replied that the company furnished a man at the owner's risk, because it is sometimes impossible for people to get their own man to put away the coal, and it is merely for the...