Wittgrove v. Green Lea Dairies

• Decision Date: 20 September 1949
• Docket Number: 27619
• Citation: 223 S.W.2d 114
• Parties: WITTGROVE v. GREEN LEA DAIRIES, Inc., et al
• Court: Missouri Court of Appeals

223 S.W.2d 114

WITTGROVE v. GREEN LEA DAIRIES, Inc., et al

No. 27619

Court of Appeals of Missouri, St. Louis

September 20, 1949

'Not to be reported in State Reports.'

E. C Hartman, St. Louis, Edmund C. Albrecht, Jr., St. Louis, for appellants.

Luke Cunliff & Wilson, St. Louis, for respondent.

OPINION

WOLFE PER CURIAM

This is a claim for compensation originating before the Division of Workmen's Compensation of the Department of Industrial Relations of Missouri. The finding of the Commission was for the claimant and on appeal to the circuit court the Commission's finding was affirmed. From the judgment affirming the award of the Commission the employer and its insurer appeal.

It is admitted that the claimant sustained injuries resulting from an accident arising out of her employment, but it is denied that she was in the employment of the Green Lea Dairies, Inc., at the time.

The evidence given by the claimant was to the effect that she was employed by Green Lea Dairies in 1944 as a clerk in one of its stores. It was one of several ice cream stores and soda fountains that the company operated and from time to time the claimant was requested by a Mr. Pattin, the company's manager, to work at one of the other stores. She had done so on quite a few occasions and about November 15, 1946, Pattin asked her to work in a store on Taylor Avenue in the City of St. Louis. She agreed to do this and thought that she was in the employ at all times of the Green Lea Dairies. Pattin took her to the store and told her that she would not be there more than two weeks.

The evidence discloses that the store in question was not owned by Green Lea Dairies, Inc., but by a man named Cecil Murdick.

Murdick testified that Pattin agreed to loan the claimant to him and that he paid her salary. She was the only employee in his store and Murdick would stop in once a day and check the cash register. At times this would be before the claimant arrived. The claimant usually opened the store and stayed until closing time when she locked up. She ordered the ice cream needed and paid for it with cash from the register and generally ran the business. All the ice cream and products sold came from Green Lea Dairies in boxes with its name upon them and its name was upon the straws and cartons used there. Murdick's name did not appear on the store window and the only sign there indicated that it was an ice cream store.

This witness was cross-examined as follows:

'Q. Mr. Murdick, did you ever tell Mrs. Wittgrove that she was going to be in your employ for those two weeks? A. I did not.

'Q. When she came into your store with Mr. Pattin, was she fully advised as to the nature of her duties at the store? A. She was.

'Q. I believe you stated there was no need to discuss the matter of what she had to do with her because she knew what she was supposed to do? A. That's right. I operated exactly as the Green Lea Ice Cream Company does and we serve the same things and I followed their principles as near as possible.

'Q. So there was nothing then that would indicate to her that she was working for a different employer when she came down to work for you? A. To my knowledge that's right.'

Pattin testified that he had asked claimant to work in the Taylor Avenue store and told her that Murdick would pay her wages. He stated that except for the manner of pay he gave her no reason to believe that she was not still in Green Lea Dairies' employ. He was asked, 'You didn't directly tell Mrs. Wittgrove that you were taking her out of your employ and putting her in the employ of Cecil Murdick for a period of two weeks and she would come back to your employ thereafter, did you?' He answered by saying, 'As far as I remember that matter was not discussed.'

Murdick's store was operated differently in some respects from the stores of the Green Lea Dairies. He had no safe or vault and claimant was instructed to take the cash from the register each night and hide it in a safe place, whereas in the Green Lea Stores in which she had worked the cash was always put in a safe at closing time. She paid cash for the ice cream that was delivered and billed to 'Taylor store', but previously she had only signed a receipt for it. The other notable difference was that Murdick paid her in cash and she had been paid by Green Lea Dairies' checks. About ten or eleven days after she started to work at the Taylor Avenue store she was injured by an electric fan and later when she went to the office of the Compensation Commission to file her claim Murdick accompanied her and she then learned for the first time that he owned the store.

It is the contention of the defendants that under the above state of facts the loaned servant doctrine is applicable and that claimant was therefore the employee of Murdick, under his control, and that they are not liable for the injuries she sustained.

The...