Viselli v. Missouri Theatre Bldg. Corp.

• Decision Date: 13 November 1950
• Docket Number: No. 41881,No. 2,41881,2
• Citation: 361 Mo. 280,234 S.W.2d 563
• Parties: VISELLI et al. v. MISSOURI THEATRE BLDG. CORP. et al
• Court: Missouri Supreme Court

Page 563

234 S.W.2d 563

361 Mo. 280

VISELLI et al. v. MISSOURI THEATRE BLDG. CORP. et al.

No. 41881.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1950.

Motion for Rehearing or to Transfer to Court en Banc Denied

Dec. 11, 1950.

John S. Marsalek and Moser, Marsalek, Carpenter, Cleary & Carter, all of St. Louis, for appellants.

Irwin White and Luke, Cunliff & Wilson, all of St. Louis, for respondents.

BARRETT, Commissioner.

The circuit court has affirmed the Industrial Commission's award of $12,000.00 in death benefits to Henry Louis Viselli's widow and dependent child and the question for decision upon this appeal by the Missouri Theatre Building Corporation is whether Viselli was a statutory employee within the meaning of the Workmen's Compensation Law. '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.' Mo.R.S.A. Sec. 3698(a).

The Missouri Theatre Building Corporation was incorporated in 1934 and since that date has owned the twelve-story public office building in St. Louis known as the Missouri Theatre Building. The tenants in the building are 'professional men, dentists and doctors, and a few commercial tenants.' Viselli, a window washer, sustained fatal injuries when he fell from an eighth floor window. He was employed by Harry Berman, an independent contractor, and a minor employer under the compensation act. Berman was in the window washing business and washed the windows of other buildings. He had his own employees and the window washing contract was based upon an agreed sum per window. He supplied the men with all their equipment, sponges, chamois, buckets and brushes and he or his foreman instructed them in their duties. As between Viselli's dependents and the building corporation the claim was submitted upon the following stipulated facts:

'On or before February 12, 1948 the usual business of the Missouri Theatre Building Corporation, which was carried on at the premises and building known as Missouri Theatre Building, located at Grand and Lucas Avenues, St. Louis, Missouri, consisted of the rental of space in said building for profit to tenants who use the space for offices and stores, and the operation and management and maintenance of said building in the manner hereinafter set forth; that in the course of its said business, the Missouri Theatre Building Corporation maintained said building, its offices and stores, and provided and furnished to the tenants thereof various services, such as electricity, heat, air-conditioning, elevator service, janitor service and other general maintenance requirements, including window cleaning, which service was at all times provided by the Missouri Theatre Building Corporation, as follows:

'To provide the window cleaning service for its tenants the said corporation had engaged Harry Berman by verbal contract, by the terms of which Harry Berman was to clean the windows in the building and in doing so was to use his own employees; this arrangement with Harry Berman had been a continuing one for over twenty years prior to February 12, 1948, and was in effect on said date; and by said arrangement with Harry Berman the work of cleaning the windows of the said building was done approximately every two weeks throughout the year, and was being done on February 12, 1948; that the Missouri Theatre Building Corporation paid said Berman for said work at an agreed rate per window; that Berman selected and hired the men who performed said work; that he had and exercised sole and exclusive control over said men in said work, and that their rate of pay was fixed by agreement between them and Berman.

'On February 12, 1948, Louis Henry Viselli, while in the course of his employment with said Harry Berman, was engaged in the work of washing the windows on the eighth floor of the Missouri Theatre Building, and while so doing fell from the window and suffered injuries resulting in his immediate death.'

The appellant urges, because the building corporation had never, at any time since its incorporation, actually engaged in window washing through its employees and because the work was performed exclusively by Berman under his independent contract, that Viselli, Berman's employee, did not become a statutory employee within the terms of the act. The appellant admits that it 'customarily supplied window washing service to its tenants under their rental contracts' but urges, nevertheless, since it had never performed the operation of window washing on any occasion through its employees, that the stipulated facts do not bring it within the provisions of the act as a statutory employer. Specifically, the appellant says, 'Whether or not the washing of windows may be regarded as a usual operation of the ownership and management of a public office building is not determinative * * *.' Its interpretation of the act is that the work in which the injured party was engaged must be an operation of the alleged statutory employer's business and 'the operation must be one which the alleged statutory employer usually performs through his own employees.' In short, to sustain its position it is insisted that the previous tests of the applicability of the act have been modified.

It is true that the court in State ex rel. Long-Hall Laundry & Dry Cleaning Co. v. Bland, 354 Mo. 97, 188 S.W.2d 838, 842, italicized and emphasized the words 'usual,' 'he' and 'his' in the statute and said: 'The statute declares the operation performed by the workmen must be a part of the usual business which 'he'--that is, the particular employer--carries on.' And so as to the installation of a permanent improvement by an independent contractor, a boiler in a laundry, it was held that the laundry was not a statutory employer when the boiler exploded and killed the independent contractor's...