Vaseleou v. St. Louis Realty & Securities Co.

• Decision Date: 07 July 1939
• Docket Number: 36405
• Parties: Philipene Vaseleou, Widow, and Philipene Vaseleou, Curatrix of the Estate of Jacqueline Miller, a Minor, v. St. Louis Realty & Securities Company, a Corporation, and St. Louis Union Trust Company, a Corporation, Employers, and the Travelers Insurance Company, a Corporation, Insurer, Appellants
• Court: Missouri Supreme Court

130 S.W.2d 538

344 Mo. 1121

Philipene Vaseleou, Widow, and Philipene Vaseleou, Curatrix of the Estate of Jacqueline Miller, a Minor, v. St. Louis Realty & Securities Company, a Corporation, and St. Louis Union Trust Company, a Corporation, Employers, and the Travelers Insurance Company, a Corporation, Insurer, Appellants

No. 36405

Supreme Court of Missouri

July 7, 1939

Appeal from Circuit Court of St. Louis County; Hon. John A Witthaus, Judge.

Affirmed.

Jones Hocker, Gladney & Grand and William G O'Donnell for appellants.

(1) Independent contractors are not covered by the Missouri Workmen's Compensation Act, and, while the term "employee" is defined by the act, the term "independent contractor" is not defined. Hence the term "independent contractor" must be given the meaning which it had at common law. Secs. 3305 (a), 3308 (a), R. S. 1929; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909. (2) Where the facts are undisputed, the question of whether a party is an "independent contractor" or an "employee" is a question of law and not one of fact. Kipp v. Oyster, 133 Mo.App. 711, 114 S.W. 538; Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909. (3) As a matter of law, John H. Miller was an "independent contractor" and not an "employee." (a) Whether a party is an "independent contractor" or an "employee" must be determined by a consideration of all the facts of the particular case. 1 Schneider, Workmen's Comp. Law, sec. 37, p. 385; 1 Restatement, Law of Agency, sec. 220, p. 483; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909. (b) John H. Miller was not subject to the control of the defendants as to the details of his work. Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16; McKinley v. Chicago, S. F. & C. Ry. Co., 40 Mo.App. 449. (c) The occupation in which Mr. Miller was engaged is ordinarily pursued not under the direction of an employer, but by a specialist without supervision. (d) John H. Miller contracted to do a specific piece of work, to furnish his own assistants, to supply his own tools and materials, to determine his own hours of work, and was to be paid by the job instead of by wages. Peters v. St. L. & S. F. Ry. Co., 131 S.W. 917; Kipp v. Oyster, 114 S.W. 538; Scharff v. So. Ill. Const. Co., 92 S.W. 126; Schroer v. Brooks, 224 S.W. 53; Gayle v. Mo. Car & Foundry Co., 177 Mo. 427, 76 S.W. 987. (4) To warrant an award of compensation there must be competent evidence to show the earnings of an employee. (5) In determining the earnings of an employee, his expenses incidental to his work must be deducted in the computation. R. S. 1929, sec. 3320 (g); Wahlig v. Krenning-Schlapp Gro. Co., 29 S.W.2d 128; Newman v. Rice-Stix Dry Goods Co., 73 S.W.2d 264.

J. C. Hopewell and Luke & Cunliff for respondents.

(1) On appeal in a compensation case the court must look only to the evidence most favorable to support the finding of the commission; all reasonable inferences must be drawn from the evidence in support of the finding of the commission, and if there is any substantial competent evidence to support the award it is binding and conclusive on the reviewing court; and in determining whether the evidence is sufficient to support the award the court must consider only the evidence tending to support the finding and disregard all opposing evidence. Sec. 3342, R. S. 1929; Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Elihinger v. Wolf House Furnishing Co., 85 S.W.2d 15; Phillips v. Air Reduction Sales Co., 85 S.W.2d 554; Heisey v. Tide Water Oil Co., 92 S.W.2d 922; Jones v. Century Coal Co., 46 S.W.2d 197; Lunsford v. St. John's Hospital, 107 S.W.2d 163; Kemmerling v. Karl Koch Erecting Co., 89 S.W.2d 676; Miller v. St. Louis Realty & Securities Co., 103 S.W.2d 510; Rutherford v. Tobin Quarries, 82 S.W.2d 918. (2) The finding of the Workmen's Compensation Commission that the respondent was an employee and was not an independent contractor is a finding of fact and not one of law. The question of whether an individual is an employee or is an independent contractor, where the issue is raised in the case, is one of fact for the jury, or, in a compensation case, for the commission, to determine. If there is any substantial competent evidence to support the finding made by the commission that finding is considered in law as the special verdict of a jury. Sec. 3342, R. S. 1929; 31 C. J. 474; Semper v. American Press, 273 S.W. 186; Heisey v. Tide Water Oil Co., 92 S.W.2d 922; Miller v. St. Louis Realty & Securities Co., 103 S.W.2d 510; Carman v. Central Western Dairies, 58 S.W.2d 782; Woodruff v. Superior Mineral Co., 70 S.W.2d 1104, affim. 85 S.W.2d 743; Rutherford v. Tobin Quarries, 82 S.W.2d 918; Jones v. Century Coal Co., 46 S.W.2d 197; Ward v. Scott County Milling Co., 47 S.W.2d 250; Mattocks v. Emerson Drug Co., 33 S.W.2d 142. (3) The Compensation Act should be liberally construed so as to effectuate its purpose, and all doubts regarding the right to compensation should be resolved in favor of the employee or claimant. Sec. 3374, R. S. 1929; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 772; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909; Elsas v. Montgomery Elevator Co., 50 S.W.2d 134; Heisey v. Tide Water Oil Co., 92 S.W.2d 927.

OPINION

Tipton, J.

This is an appeal from the judgment of the Circuit Court of St. Louis County affirming the award of the Missouri Workmen's Compensation Commission in awarding compensation for the death of John H. Miller to his widow and his adopted daughter, Jacqueline Miller. The award was as follows: To the widow, Philipene Vaseleou, the sum of $ 150 for burial expenses and the sum of $ 20 a week for 12 1/7 weeks (to the date of her remarriage), and to Philipene Vaseleou, as curatrix of the estate of Jacqueline Miller, a minor, the sum of $ 20 a week for 372 16/35 weeks.

The principle question for our decision in this case is: Was the deceased an employee of the St. Louis Union Trust Company, or was his relation with that company that of an independent contractor. Both parties to this litigation agree that if the status of Miller was that of an employee, then the compensation should have been awarded, but, on the other hand, if his status was that of an independent contractor, compensation should be denied.

Three witnesses testified for the respondents, the claimant, Philipene Vaseleou, and Robert Jones and Lin D. Ham, employees of the real estate department of the St. Louis Union Trust Company.

The appellants contend that there is no conflict in evidence, and, therefore, that whether the deceased was an independent contractor or an employee is a question of law and not one of fact. We have so held. [Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909.] However, the respondents contend that the commissions findings of fact are in the nature of a special verdict and conclusive if supported by any substantial competent evidence. We have ruled thus in Rutherford v. Tobin Quarries, 336 Mo. 1171, 82 S.W.2d 918, and Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551. We see no distinction between these two principles of law. On a given state of facts, it is a question of law whether the relation of master and servant exists. This is so whether the facts are disputed or not. If the evidence is conflicting, then the facts that are found to be true by the triers of the facts must, as a matter of law, sustain the relation of employer and employee. Consequently, on a given state of facts it is as question of law whether those facts sustain the relation of master and servant. We will, therefore, examine the evidence and see if it, with all reasonable inferences drawn from it, supports the finding of the commission that the deceased was an employee of the appellants, the St. Louis Union Trust Company.

The St. Louis Union Trust Company, through its real estate department, acts as agent for numerous of its clients in matters concerning the management of their real estate, its duties, among other things, being to make repairs on the property it manages. Among the clients of the Trust Company was the St. Louis Realty and Securities Company, the alleged employer in this case, which owned various pieces of property in and around St. Louis, including property located at 21-25 North Gore Avenue, Webster Groves, Missouri. On March 3, 1937, while the deceased was doing repair work at this property he fell and sustained injuries of which he later died.

The relation between the deceased and the Trust Company began several years before this fatal accident when the Trust Company regularly engaged the services of the Shine Company then owned by John P. Shine, father-in-law of the deceased, for the purpose of making whatever repairs were required upon the property under its supervision and control. After Shine's death, the deceased bought the construction company from Shine's widow and thereafter operated it. He continued to do the repair work for the Trust Company and for several years prior to his death he did work only for it, that is, he did no repair work for any other person. He worked on an average of three or four days a week and his pay was figured at $ 10 a day. When the Trust Company had a repair job, the deceased was called and he went with either Jones or Ham to make an estimate of what the repair job would cost, and if his estimate was reasonable he was told to go ahead and do the work. Sometimes his estimate was written and sometimes it was oral, but in figuring the job the Trust Company understood that the deceased allowed himself $ 10 a day, that he usually had two men helping him. On April 11, 1939, he received...