Woodruff v. Superior Min. Co.

• Decision Date: 08 May 1934
• Docket Number: No. 22918.,22918.
• Parties: JACK WOODRUFF (EMPLOYEE), APPELLANT, v. SUPERIOR MINERAL COMPANY (EMPLOYER) AND CONSTITUTION INDEMNITY COMPANY (INSURER), RESPONDENTS.
• Court: Missouri Court of Appeals

70 S.W.2d 1104

JACK WOODRUFF (EMPLOYEE), APPELLANT, v. SUPERIOR MINERAL COMPANY (EMPLOYER) AND CONSTITUTION INDEMNITY COMPANY (INSURER), RESPONDENTS.

No. 22918.

St. Louis Court of Appeals. Missouri.

Opinion filed May 8, 1934.

Appeal from the Circuit Court of Washington County. — Hon. E.M. Dearing, Judge.

REVERSED AND REMANDED (with directions).

Henry C. Stoll for appellant.

(1) Claimant was engaged in work on or about the premises of the employer which was an operation of the usual business carried on there. Sec. 3308, par. (a), R.S. 1929; Meyer v. Adams, 50 S.W. (2d) 744; Pruitt v. Harker, 43 S.W. (2d) 769; Simpson v. New Madrid Stave Co., 52 S.W. (2d) 615; Fisher v. Stephens College of Columbia, 47 S.W. (2d) 1101. (2) Commission's findings that claimant was an independent contractor is in the nature of a special verdict and conclusive if supported by any substantial competent evidence. Sec. 3342, R.S. 1929; Carman v. Central Western Dairies, Inc., 58 S.W. (2d) 781; Jones v. Century Coal Co., 46 S.W. (2d) 196; Probst v. St. Louis Basket & Box Co., 52 S.W. (2d) 501; Caldwell v. Kreis & Sons, 50 S.W. (2d) 725; Goebel v. Mo. Candy Co., 50 S.W. (2d) 741; Meyer v. Adams et al., 50 S.W. (2d) 744. (3) In determining the sufficiency of evidence to sustain the findings of fact made by the commission, the appellate courts will look only to the evidence which is most favorable, adding thereto all reasonable inferences of fact to be drawn therefrom to support such findings, and will disregard all opposing evidence. Goebel v. Mo. Candy Co., 50 S.W. (2d) 741; Caldwell v. Kreis & Sons, 50 S.W. (2d) 725; Schroyer v. Mo. Livestock Co., 61 S.W. (2d) 713; Jackson v. Ætna Bricklaying & Constr. Co., 59 S.W. (2d) 705; Butner v. Hayes Const. Co., 60 S.W. (2d) 680; Kink v. Mark Twain Hotel, 60 S.W. (2d) 675; Herndon v. Robertson Const. Co., 59 S.W. (2d) 75; McCully v. Kelley-Dempsey Co., 57 S.W. (2d) 784; Hinkle v. Miller, 56 S.W. (2d) 825. (4) Where facts are in dispute, the finding of the commission is final and cannot be disturbed on appeal if there is competent evidence to support the award. Jones v. Century Coal Co., 46 S.W. (2d) 196; Schulte v. Tea & Coffee Co., 43 S.W. (2d) 832; Probst v. St. Louis Basket, etc., 52 S.W. (2d) 501; Bender v. Midwest Pipe Co., 57 S.W. (2d) 707; Meyer v. Adams, 50 S.W. (2d) 744. (5) Chapter 107, R.S. Mo. 1929, does not control this case, nor does it in any way apply in this litigation because the respondent Superior Mineral Company belongs to a class of persons which is not contemplated under its provisions but excluded therefrom. Secs. 13593, 13594, 13595, R.S. Mo. 1929. (6) Since this statute expressly designated the two classes of persons to whom the chapter is applicable, it follows that it excludes all others: "It is a well-known canon of statutory construction that the expression of one thing in a statute is the exclusion of another." State v. Sweaney, 270 Mo. 685, 195 S.W. 714, l.c. 716; State ex rel. Barlow v. Holtcamp, 14 S.W. (2d) 646. (7) Although respondents have shown that the Superior Mineral Company was operating under a lease for mining purposes from the owner, they have failed to show that such lease was duly acknowledged and recorded in the county wherein the land lies, and therefore respondents are excluded from the provisions of chapter 107, R.S. Mo. 1929, sec. 13593 et seq. The expression of the statute on the point of recordation must be construed so as to give it effect together with the entire statute. State ex rel. Dean et al. v. Daues et al., 14 S.W. (2d) 990, l.c. 1002; Superior Mineral Company v. Mo. Pac. R.R. Co., 45 S.W. 912; Strottman v. Ry. Co., 211 Mo. 227, 109 S.W. 769; Bank v. Ripley, 161 Mo. l.c. 131, 61 S.W. 587; State ex rel. v. Harter, 188 Mo. l.c. 529, 87 S.W. 941.

A.A. Alexander and L.A. Robertson for respondents.

(1) As to the occupancy of the land and right to mine thereon, that of licensor and licensee — the appellant having an interest in the nature of a leasehold estate for the fixed term of three years. Section 13593, R.S. Mo. 1929; Section 13594, R.S. Mo. 1929; Robinson v. Mining Co., 55 Mo. App. 662, l.c. 665-667; Ashcraft v. Mining Co., 106 Mo. App. 627, l.c. 631-632; Arbuthnot v. Mining Co., 115 Mo. App. 600, l.c. 604-605; Mining Co. v. Hodge, 185 Mo. App. 138, l.c. 145; Davis v. Solomon (Mo. App.), 243 S.W. 410. (2) As to the right, interest and property in the ore or mineral dug or mined on the land, that of buyer and seller of a commodity. Section 13595, R.S. Mo. 1929; Section 13596, R.S. Mo. 1929; Huthmacher v. Harris, 38 Pa. St. 491, l.c. 498, et seq.; Edwards v. Baldwin Piano Co., 79 Fla. 143, 83 So. 915, l.c. 917; Rawleigh Co. v. McCoy, 96 Ore. 474, l.c. 480, et seq.; Edward v. Ioor, 205 Mich. 617, l.c. 623, et seq.; Watson v. Odell, 58 Utah 276, l.c. 283; Mansfield v. Agricultural Ass'n, 154 Cal. 145, l.c. 147, et seq.; Western Mass. Ins. Co. v. Riker, 10 Mich. 279, l.c. 281; Cole v. Laird, 121 Iowa, 146, l.c. 149; Barrie v. United Railways Co., 138 Mo. App. 557, l.c. 651, et seq.; Wheless v. Grocer Co., 140 Mo. App. 572, l.c. 585; Burkhardt v. Decker, 221 Mo. App. 1066, l.c. 1070, 295 S.W. 838, l.c. 840; Loud v. St. Louis Union Trust Co., 313 Mo. 552, l.c. 596. (3) When the subject-matter of the contract is a chattel to be afterwards delivered, then, although work and labor are to be done on such chattel before delivery, the contract is one of sale. Burrell v. Highleymann, 33 Mo. App. 183, l.c. 189; Pike Electrical Co. v. Drug Co., 42 Mo. App. 272; Schmidt v. Rozier, 121 Mo. App. 306, l.c. 309; Planing Mill Co. v. McCormack, 127 Mo. App. 349, l.c. 352; Monument Co. v. Geary, 210 Mo. App. 45, l.c. 49; Pratt v. Miller, 109 Mo. 78, l.c. 84; Henrikson v. Packing Co., 109 Wash. 644.

BECKER, J.

This is an appeal from the judgment of the Circuit Court of Washington County, Missouri, reversing an award of the Missouri Workmen's Compensation Commission in favor of plaintiff employee.

The defendant, Superior Mineral Company, a corporation, is engaged in the business of mining barytes upon what is known as the DeLore property in Washington County, Missouri, the said company operating under a lease subject to royalty made by DeLore to one William C. Wolf, which lease was assigned to said company.

According to the findings of fact of the commission Woodruff, the plaintiff, was an independent contractor of the Superior Mineral Company engaged in hand mining of tiff on the leased premises of the Superior Mineral Company, who, under section 3308 (a), Revised Statutes of Missouri, 1929, Mo. Stat. Ann., sec. 3308 (a), page 8242, was an employee of said company, citing as their authority Meyer v. Adams (Mo. App.), 50 S.W. (2d) 744; Pruitt v. Harker (Mo. Sup.), 43 S.W. (2d) 769; Simpson v. New Madrid Stave Co. (Mo. App.), 52 S.W. (2d) 615. The commission found that the plaintiff had lost the sight of his right eye and some vision of his left eye, and awarded him compensation at the rate of $6 per week for life.

The employee here on appeal urges that the circuit court erred in reversing the award of the commission because said award was based upon findings of fact adequately supported by the record. The defendants in turn insist that the facts in the case bring it within the laws of Missouri concerning "Mines and Mining" chapter 107, Revised Statutes of Missouri, sections 13593, 4, 5, Mo. Stat. Ann., sections 13593, 4, 5, pages 5126, 27, 28, 29, 30, and that under said statutes the relation between the defendant and plaintiff as to the occupancy of the land and the right to mine thereon was that of licensor and licensee, and as to the right, interest and property in the ore or mineral dug in the mine on the land, the relation was that of buyer and seller of a commodity and that there was no testimony to support a finding that the plaintiff was an employee of the defendant.

Upon the record before us, in light of the statutes supra, we have come to the conclusion that the plaintiff was an independent contractor. Section 13593 of our statutes, among other things, provides that when any person owning real estate or having a leasehold interest in such real estate for mining purposes by lease from any owner thereof shall permit any one to enter and dig thereon for any mineral, he shall keep a printed statement of the terms, covenants and agreements upon which such land may be mined, posted or hung up in a conspicuous place in the principal office or place of business of such person in the county in which said lands are situated, and any persons mining on said lands after the posting of such a statement shall be deemed to have agreed to and accepted the terms thereof and shall, together with the owner of the lease, be bound thereby.

Section 13594 provides that whenever any such owner or lessee of real estate does not comply with the provisions of said section 13593 and shall permit any person to enter and dig for mineral on such real estate, any such person shall have the exclusive right as against such owner or lessee giving such permit or consent, to continue to work, mine and dig such shaft, mine, prospect or deposit of mineral dug or opened by him in said real estate, with a right of way over such lands for the purpose of such mining for the term of three years from the date of the giving of such consent or permit, provided that such person shall pay to the owner or lessee of the said lands the royalty for mining thereon in the manner provided in the section. It further provides that the owner or lesseee shall have a lien on all mineral taken or dug therefrom for the royalty due thereon until the same is paid.

Section 13595 provides that any such person who, by the permission of the owner or lessee of any real estate, has the right to mine thereon, and having entered and dug or mined thereon any mineral, shall have the right to the exclusive possession of such ore or mineral excepting the royalty thereon which shall be paid as hereinbefore...