Tokash v. General Baking Co.

• Citation: 163 S.W.2d 554,349 Mo. 767
• Decision Date: 01 July 1942
• Docket Number: 37773
• Parties: Frank Tokash, Employee, v. General Baking Company, Employer, and Liberty Mutual Insurance Company, Insurer, Appellants
• Court: United States State Supreme Court of Missouri

163 S.W.2d 554

349 Mo. 767

Frank Tokash, Employee, v. General Baking Company, Employer, and Liberty Mutual Insurance Company, Insurer, Appellants

No. 37773

Supreme Court of Missouri

July 1, 1942

Appeal from Circuit Court of City of St. Louis; Hon. Wm. S Connor, Judge.

Affirmed.

John F. Evans for appellants.

(1) The evidence affirmatively shows that the claimant was employed by and working for an independent contractor at the time of his injury, and was not an employee of the General Baking Company. Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000 82 S.W.2d 909; Allen v. Jackson County Savs. & Loan, 232 Mo.App. 1098, 115 S.W.2d 7; Gholson v. Scott, 130 S.W.2d 216. Claimant is bound by his unequivocal admission that he was working for Schuermann. Madden v Red Line Serv. Co., 76 S.W.2d 435. (2) If plaintiff was in the employ of General Baking Company, the work of painting the exterior woodwork of the bakery building was of such casual nature as to exclude the employee from the provisions of the compensation law. Sec. 3693, R. S. 1939; McFall v. Barton, Mansfield Co., 333 Mo. 111, 61 S.W.2d 911; Sonnenberg v. Berg's Market, 227 Mo.App. 391, 55 S.W.2d 494; March v. Bernardin, 229 Mo.App. 246, 76 S.W.2d 706; Chamberlain v. Central Vermont Ry. Co., 100 Vt. 284, 137 A. 326; Ray v. Commercial Acid Co., 227 S.W. 851; London Accident Co. v. Ind. Comm., 173 Cal. 642, 161 P. 2; Blood v. Ind. Comm., 30 Cal.App. 274, 157 P. 1140; Aurora Brewing Co. v. Ind. Board, 277 Ill. 142, 115 N.E. 207; Baer's Express Co. v. Ind. Board, 282 Ill. 44, 118 N.E. 412; Gibbons v. Roller Estates, 163 Tenn. 373, 43 S.W.2d 198; Lamont v. Intermountain Realty Co., 48 Wyo. 56, 41 P.2d 497; Orr v. Boise Cold Storage Co., 52 Idaho 151, 12 P.2d 270; Quick v. Kintner & Son, 113 Pa.Super. Ct. 108, 172 A. 189; Klumpp v. Ind. Comm., 107 Cal.App. 733, 291 P. 456. (3) The work of painting the exterior woodwork of the bakery building was not incidental to the business of baking bread. Cummings v. Union Quarry & Const. Co., 231 Mo.App. 1224, 87 S.W.2d 1039.

John W. Barry and Wm. R. Schneider for respondent.

(1) Findings of fact made by the commission, if sustained by sufficient competent evidence, are, absent fraud, conclusive on appeal, and in determining the sufficiency of the evidence upon which the commission based its finding we consider the evidence in the light most favorable to the finding and disregard evidence which might support a different finding than made. Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 75; Weaver v. Norwich Pharmacal Co., 149 S.W.2d 846. (2) The claimant in this case was an employee hired by his coworker Schuermann, acting as agent for the employer's manager. Sec. 3698(a), R. S. 1939; Kennedy v. J. D. Carson Co., 149 S.W.2d 424; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; State ex rel. Superior Mineral Co. v. Hostetter, 337 Mo. 718, 85 S.W.2d 743; McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W.2d l. c. 917. (3) Upkeep or maintenance and repair work may be incidental, but is essential to keep an industrial plant in condition so its usual business can be carried on there properly. Capital Cleaners & Dyers v. Ind. Comm., 85 Utah 295, 39 P.2d 681; Gahr v. Strout (Minn.), 229 N.W. 340; Sherlock v. Sherlock, 112 Neb. 797, 201 N.W. 645; National Cast Iron Pipe Co. v. Higenbotham, 216 Ala. 129, 112 So. 739; Johnson v. Ashville Hosiery Co., 199 N.C. 38, 153 S.E. 591; Klumpp v. Ind. Comm., 107 Cal.App. 733, 291 P. 456.

OPINION

Gantt, J.

Action under the Workmen's Compensation Law. Frank Tokash, in due time and in proper form, made claim for compensation against the General Baking Company and Liberty Mutual Insurance Company. He alleged that he was injured while working for the General Baking Company as a painter of the exterior of its building. The commission entered a final award in favor of Tokash and against both companies in a sum in excess of $ 7500. The companies appealed to the circuit court. In that court, and on a stipulation signed by the parties, judgment was entered reversing the final award of the commission. Thereafter Tokash filed a petition in the circuit court to have the judgment on the stipulation set aside for reasons therein stated. The petition was denied and Tokash appealed. We reversed the judgment and remanded the cause with directions to reinstate the cause on the docket of the circuit court. [Tokash v. Workmen's Compensation Commission et al., 346 Mo. 100, 139 S.W.2d 978.] Thereafter judgment was entered in the circuit court affirming the final award of the commission. The companies appealed from that judgment.

On review we are limited by the rule stated in Weaver v. Norwich Pharmacal Co., 347 Mo. 995, 149 S.W.2d 846, which follows:

"Findings of fact made by the commission, if sustained by sufficient competent evidence, are, absent fraud, conclusive on appeal, and in determining the sufficiency of the evidence upon which the commission based its finding we consider the evidence in the light most favorable to the finding and disregard evidence which might support a different finding than made. [Adams v. Continental Life Ins. Co. et al., 340 Mo. 417, 101 S.W.2d 75, l. c. 77, and authorities there cited.]"

The facts in evidence before the commission follow: At the time of the injury, George S. Hammond was manager of the baking company's plant in St. Louis. As such, he had authority over the maintenance of the company's building in St. Louis as well as the baking business conducted therein. The company had an employee by the name of Otto Reifstick in charge of maintenance. It was not engaged in the painting business. Even so, it painted its building, and Hammond testified that "we just keep our property up." "The painter we had regularly at our plant came under the maintenance department." He further testified that on a Monday he conferred with painter E. H. Schuermann about painting the exterior of the building. At the conference Hammond inquired if Schuermann could paint the building. Schuermann stated that there should be two painters on the job and that it would cost one dollar an hour for each painter. Hammond inquired if he should employ another painter or would Schuermann employ a painter to work with him on the job. Hammond stated that he wanted a painter that would do an honest day's work. Schuermann stated that he would get a good painter. It was finally agreed that if the building was painted, the company would furnish the paint, putty and brushes and Schuermann would furnish the necessary ladders and scaffolding. Hammond stated to Schuermann that he would talk the matter over with Otto Reifstick, the maintenance man. After talking with Reifstick, Hammond telephoned Schuermann that he could proceed with the painting on the following Monday and instructed him to contact Reifstick, the maintenance man, who would give him the material and tell him what to do. In the meantime Schuermann engaged the services of Tokash to assist in painting the building at one dollar per hour. On Monday Schuermann and Tokash appeared at the building and contacted the maintenance man from whom they obtained sacks filled with sand to be used as a ballast for the outriggers of the scaffold. They carried the sacks to the roof of the building, and, after adjusting the outriggers, they tested the scaffolding and proceeded to pull it upward on the side of the building. On reaching a point about fourteen feet from the ground, one of the outriggers gave way, causing Tokash to fall from the scaffold which seriously injured him. As yet, Schuermann and Tokash had not been placed on the payroll of the company. "They hadn't been there long enough for us to get them on the payroll." Shortly thereafter they were listed on the payroll as employees. At the time Tokash was injured he had worked an hour and a half. The following Saturday the company paid Schuermann for the work performed by Tokash. Schuermann delivered the money to Tokash, who was in the hospital. In testifying, Tokash stated that his last employer was Schuermann and gave the date of this employment as the date of the accident.

Appellants contend that Tokash was an employee of Schuermann, who was an independent contractor, and for that reason Tokash is not entitled to compensation from the baking company. The applicable rule may be stated as follows:

"The most important test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Whether one is an independent contractor depends upon the extent to which he is, in fact, independent in performing the work. . . . It is not, however, the fact of actual...