*1 McKay, De Estate Mary Lee McKay, Administratrix E. Ap Corporation, Company, ceased, v. Delico Products Meat 149. 38469. 174 pellant. No. One, September 1942. Division Rehearing Denied, October Stanley Garrity John for Delico Meat W. Oliver Products CompanyMcCune, Caldwell, Downing Noble & of counsel.
878' MoFeely,
Henry W. J. B. Walter A. Raymond McFarland and respondent.
DALTON, $30,000 C. Action for damages for in- personal juries count of sustained alleged negligence by Lee McKay, of defendant. The the original jury returned a verdict plaintiff, ac- plaintiff for for $10,000, upon judgment which entered,' and appealed. defendant The death of plaintiff McKay, Lee subsequent to the date of the appeal, has suggested been Mary McKay, widow, and E. duly the appointed, qualified acting and administratrix of his estate, has been respondent. substituted as For we convenience shall refer to the original parties plaintiff and defendant.
Plaintiff charged that during March, the month of 1940 and on the days first and September, second .1940, while he was employed woi(k under contract to in and about buildings defendant’s making of certain repairs, carelessly the defendant negligently and permitted dangerous caused and injurious and quantities of smoke, poisonous gases and fumes to escape into and remain in the interior buildings of the plaintiff where required work; plaintiff to that complained defendant; thereof to that said fumes and gases were neg- that defendant body;" human tissues destructive smoke, gases and said untruthfully represented ligently an in experience no working had had harmless; plaintiff fumes were and, upon defendant’s assurance relying smoke, and fumes gases inhaling breathing and harmless, his work continued with
jthey were result received fumes; a direct smoke, gases and and he described. Defendant’s injuries, which personal and lasting severe and defendant were plaintiff and general plea denial a answer is a Compensa- provisions of the Workmen’s subject and to conditions 1939; Workmen’s Missouri, R. Chapter Act of S. tion original jurisdiction to Compensation Commission was vested with obligations rights and against determine defendant plaintiff juris- plaintiff; to was without of defendant the circuit court and that reply is new matter. general diction. a denial of refusing peremptory assigned is on the action Error court’s evidence offered to the nature of demurrer instruction at the close all the defendant evidence. plain- evidence the that on Keeping mind rule demurrer tiff’s evidence must taken as tome and defendant’s evidence case, disregarded, unless aids the and plaintiff’s’ reasonable entitled of all evidence and all to benefit favorable therefrom, part of the evi- inferences to be drawn state that shall employee bearing was an upon dence the issue as to whether independent defendant. of or contractor for the contracting occupation and had bricklayer by was a been Plaintiff thirty Defendant, corporation, engaged years. about a Missouri of manufacturing sausages products in the business meat and curing hickory City, Kansas of meats with including the and smoking plant separate buildings, brick but the smoke. Its consisted of three same, floor make proposed levels were them building into one the floor levels to “more less to build necessary same level” add an additional room. It became n make arrangements men, stonemasons, carpenters, with brick-N cement layers, parts steel men others to do' various defendant’s representative, Kahmann, negotiated with Mr. to do some of the brick work. May 20, 1939, plaintiff
On amade written to defendant proposal specified furnish the material and certain brick work labor do $1696'..65: accepted. days proposal This later Three submitted to “I proposal defendant a as follows: written further boxes, propose trestles, to furnish brick mortar mortar boards neces- *5 sary Company Building to do brick on Delico Meat Products City, located 1121 Street Kansas for pay Twelfth Missouri. You all liability payrolls, material and all working insurance for all men with my (sic) myself (sic) $12.00, and me pay and rate of the (twelve Dollars) day job, per my percent, 2%, for labor two on plus oil all on brick proposal, accepted, materials and labor work. This if guarantee if proposal I this 20, 1939. May dated proposal voids specified in (sic) same are the pro- of work accepted quality and the on brick work will 20, 1939, cost the May that the total posal dated $1696.65, price.” contract not exceed accepted proposal: this it Plaintiff testified that that, defendant; thereafter, he “re- agreement with
contained his building, up walls built the several several modeled whole built and floor, the smoke large quantity a built houses and openings, put in sausage house top the present boiler room and garages, paid according agreement. this docks;” that he Plaintiff was original supplemented by proposal pro- later said second proposals. his work based on the two posal and that second however, particular not list brick nor it proposal, did did being plans,” “in refer to the brick work accordance with as did figures concerning first but total proposal, cost were the same. “Well, they signed original Plaintiff further testified: after me they down, first contract called me to come up asked they me, I (they) to talk to and went down there and wanted asked the job me how I would like on a plus, they to take cost had figured great there be a deal than would more work incor- porated in the I right. contract so told them the cost plus would all be they figured job So out about what the would worth if I had them all for the material paying paying for Security the Social the insurance, profit would cut the percent down to about two original from the ten percent get usual that subcontractors —on Q. wages. over . figuring and above . And in two out this percent in final making agreement, did you take into' consideration they pay compensation would and insurance and all those things? A. If Yes. it hadn’t way been that the percent have would great greater. a Q. been deal Security? And the Social A. Yes.” Plaintiff further testified concerning his with conversation defendant’s representative, as follows: I “Due to the fact had no card for a con- n tractor, carry card, don’t a . he couldn’t work in on the me compensation a because I wasn’t journeyman, quite and we debated it, about finally said, ‘Well, lot said probably I will have to ” special take out you.’ insurance for examination, On cross plaintiff testified concerning contract, “ Q. as follows: any In event, you agree did you at that time that would work for them (defendant) on a basis of twelve day dollars a plus percent? Yes, two A. Q. was the contract. And the under- standing you would work just long on that basis as there you work for Q. to do? A. Yes. And at any during time period you of time working them, were they might terminate arrangement you would through, you that, understood is that right? Q. A. Yes. ... Is there (second letter) letter any specification? Q. A. Yes. Where is it? A. specifies It in there if the same amount of work is done it wouldn’t exceed the con- *6 Q. . smoke . . The first houses had in the contract. we price tract Any they work would amount of letter. A. mentioned in that weren’t it smoke houses whether was contract, in be covered do would work, anything amount of it was. The contract covered what or in that are not included . . . floors want to do. they would they done, based on whatever the contract was . . . contract. But they going to do.” They what were everything. didn’t know covered paid to him was not the total to said amount Plaintiff further basis,” plus cost by contract, after he “went on the written limited proposals. more the amount stated in the that he much than got “Well, I went Concerning plaintiff said: progress of the work agreement out in the we and did the that was set first work ahead changes some there, they changes, put in signed made some had that wasn’t included in that some smoke houses wasn’t and built quite patch agreement in work.” included that first and did lot (or ovens) Part the brick work on the smoke was done smoke houses March, later, doing in working it was while this work and 1940, while September, plaintiff alleged
in in the “coolers” injured. he was “coolers” nor the smoke Neither work in the proposal. houses mentioned in either that,, work, Plaintiff testified when went he it was defend- he to knew keep plant operation repairs ant’s intention to' its in while the were made, being plant operation and that the times.” In “at all plaintiff’s connection one him, hod carriers testified for “Q. follows: plant operation And the was in most of the time? A. Q. you Yes. And job found to move from one to necessary another order to plant operation, interfere with the isn’t true? Q. A. you Yes. And were directed Mr. Kahmann and Mr. Neuer when that McKay.” Defendant’s witness would necessary, Kahmann isn’t that testified to the true? A. same And Mr. effect, “We stop (plaintiff) piece would him on one of work and send him on ’’ some part other building. Concerning the (or ovens), detailed work on the smoke houses they testified that were constructed on the west side building in building; they up' (the were remodeled and built ceiling the old only smoke houses were two feet the ceiling building); that, when he finished, ceiling he used a hung tile on angle irons, which left openings tile; they that after “com- pleted an oven” they “would up have get there and concrete that . top . . seal pores all those get out”; so the smoke could not escaped what smoke would through be let new vents that were out being installed; that, progress, while the was in smoke and gas and fumes leaked from ovens operation “awful bad” where (plaintiff) had to work. He further said: “I asked them (Mr. Neuer and Mr. Kahmann, representatives) defendant’s if couldn’t increase the vents or patch install fans some or the old house so roofs we could there, they stand to work up if would even shut they And next to us. smoke house furnace on down the though they were house, but seemed every that on promised do smoked, meat, and we continue just had to be crowded, their danger there was no go ahead, that there they me *7 and told to get ... I tried them them ahead. . . I believed and went . something get in or to rid open put in or to fans to a hole the roof every got they though up time we to it condition, seemed and it as They never lost an hour’s time very plant. well close couldn’t way stand just go was no other but ahead and part on our and there it.” paid which rate the time for was
Concerning hours, only “If I day, $12.00 he testified: I worked would per charge (defendant) up them at 8 work. In instances hour’s several get if where in to make measurements to see a we couldn’t certain that, something why machine would block a door or like we would do hours, everybody working gone that kind of work after after home. Well, Q. Now, who would do that? A. I Mr. Kahmann and Q. right, you anything Neuer. I see. All and did receive for that Q. you spent you time which right. A. No. All Did there? ever get early mornings any there Yes, work details? help out A. Q. go often we would there at seven o’clock. And what time -was regular period? Eight Q. A. working o’clock. . . . How did you figure jmu compensated you were for this overtime that did? A. Well, part that was contract which the two covered percent, which compensation is a for your duties as a contractor. Q. . then, . . Now you when time, off time to . . . wer.e your slackened, you whatever time work back, would be called Mr. did Kahmann or the Delico Company your Meat Products call back, men you or did go have to up them out round and call them back? A. Q. I call them I would back. see. That took some little time, Q. I presume? A. Yes. you And get did pay for the you time did .Q. that work? A. figured? No. How was that A. ’’ figured That part in as a contract. Plaintiff said further “took the day twelve just dollars as a payment on the con- ’’ tract.
With plans reference to for the plaintiff testified: “There plans, were some Ibut never specifications. knew of any . . . The changes were to machinery made fit the go that had there, to the details it office, of was worked out and usually working after They hours. would call me in and go it, we would over take measure- ments and make the necessary changes. . . . When the details were changed, them, as we things call those were worked out office, I and called it if could way, be worked that s.ee if they could be would direct me ahead and go do it. . . . I helped -work out what we had to They work on. had certain machines they wanted to spaces, install in certain and if there was anything -with, arrange- some other have to it, would make that-interfered
”ment. tell your sworn would they was asked this case was Q. they tell testified: not? plans did Q. Q. Was that Concerning the Either Yes, and was true you how direct tell A. Yes. tell you how to you far as we “Q. you or both of me the you deposition it what to do true going on? (in deposition Now, Q. Yes, windows through the important it? could do it A. as them would do a matter ? A. A. yesterday, Sir? ? to the work A. go, page they Yes, There but issue of the Yes, A. entire taken No. wanted direct sir.’ Did when we made the They fact, wasn’t they is no doubt Q. December job? A. you, I will your Mr. Neuer and told closed out. it? A. Yes. right you make that got isn’t me what'to do. sworn ask Well, into to be I made that answer. you necessary changes. 1941) patch control, plaintiff deposition we followed if true? done, did Mr. Kahmann *8 Q. ? ‘Did answer in And , question A. Yes. Q. Q. while .they they they Did Did you your in here and corrections corrected changes or two made one name, name is A. That your his first Everett? son’s name. On son’s your handwriting own you that right. Q. And corrected is ‘Q. (Reading). . . . Mr. Neuer A. Yes. deposition? your own not, work, they did complete control Kahmann and Mr. that men how to work. Isn’t you perform and other in directing changes me there were They Not other men. directed what A. true? Q. right. (Reading) right? A. is Isn’t that That plan.’ ‘ ? Question: Well, they you perform the work Answer: how to directed Q. ‘Question: (Reading) true. true? A. That is Yes.’ Isn’t that might changed you regard any that with details be directed And might any or manner in which the regard to method or with business, with their isn’t that true? A. as not to interfere done so be Q. right. ‘Ques- right? (Reading) A. right.’ That Is that That is is you at were the direction and control that all times under tion: So right. A. That is Kahmann or Mr. Neuer? A. Yes.’ of either Mr. Q. ‘Question: work, (Reading) In connection with this isn’t that right. Q. right? A. That true? Answer: Yes sir.’ Is that is ‘Question: course, you did, And, (Reading) follow their orders right their that A. directions? Answer: Yes.’ Is sir? That is Q. ‘Question: (Reading) right right. they And had the to direct Yes, they had.’ you? Answer: Isn’t that true? control A. Yes, is true.” 13, 1939,
Plaintiff on December admitted that while the' work for (in hearing in progress defendant was he testified a the Work- before Compensation on a claim leg injury men’s Commission a incurred 1938, Richmond, Missouri), that his work with “ran day”; about thirteen dollars a and that in answer question, to you employed by “Were you them or have them,” contract with he employed.” had answered: “I was
n in his but de- him to assist other hired individuals Plaintiff helpers. pay these money by plaintiff used furnished fendant himself, and persons, one more four or crew consisted Plaintiff’s carriers, brought two, two hod who bricklayer possibly extra Kahmann estimated Mr. and mortar. Plaintiff and brick up Kahmann ordered out. required be and-Mr. material that would case, Mr. plaintiff testified at the rebuttal close In men; Mr. Kall plaintiff’s work of Kahmann did not direct the and sometimes not day than once came around more mann not talk to him on days; Kahmann did four once three or Mr. work; Mr. never kind Kahmann job, any particular about done”; that Mr. Kahmann work could him “how the be told ‘ lay or tell bricklayer. Iiow brick was not a Plaintiff said: could ” previously ? admitted he had me how to do it Plaintiff thereafter “Q. either Mr. Neuer gentlemen, testified as follows: Did of these Kahmann, you direct done Yes. or Mr. Q. to what work ? A. Q. A. you? Either or both them direct that' true Yes. Was Q. throughout job they you A. ? Yes. Did tell to do ? entire what Q. they you Q. A. Yes. Did tell do A. . how to it? Yes. . . Is that right? A. That is right. Q. And directed you with regard might method or manner in which the work done so business, as not to interfere with their A. That isn’t right true? Q. right. they had and control And to direct you? A. Yes, they In testimony had.” connection with the above “Q. you further testified (By Garrity) as follows: Mr. Did : Q. true, make those answers? A. Yes. And those were weren’t Q. they? signed Q7 A. Yes. you And those? A. Yes. you And ” testified way morning ? Yes. A. During the period that plaintiff working at defendant’s plant, *9 registered he was with the Compensation Missouri Workmen’s Com- mission as a contractor. The (payroll tax) Social Security on the wages plaintiff’s helpers paid was through plaintiff and in his name. Plaintiff said that according this was to the contract with defendant, although Security Social was not in the mentioned written proposal. No Security Social paid tax plaintiff’s wages, and, ivas on reports plaintiff made to Security Commission, the Social he designated employer himself as and his helpers employees. as his Of paid the funds Commission, Social Security plaintiff testified: “Q. It wasn’t your money,anyway, AVell,no, was it? A. just was agreement an that we had.” When paying the men who with him, plaintiff worked figure would up the amount of payroll, take it to Kahmann, Mr. get the cash from him and then pay men, these none of whose individual names appeared on defendant’s payroll. The proposal, second supra, pro- vided that defendant carry liability insurance and his men is admitted that defendant carried compensation in- surance and paid the premiums, but whether such compensation
886- is, There appear. not men, does aiid upon plaintiff
insurance was percent, determining the two by plaintiff however, a statement compensation and pay would consideration that defendant took into insurance. May, 1939 to plant from at defendant’s progress was in The work 1940, 2, September being about done 1940, the last work September, off continuously, they were men not work plaintiff and his but did the work 1940, before August 10, from time to time. On an recommendation plaintiff a letter of finished, gave letter recited skilled workman.” “honest, conscientious and remodeling our for the brick work “contracted all plaintiff had ’’ floors. including laying brick buildings, “plaintiff facts show that undisputed
Appellant contends that the within that as such was of law and employee an as a matter Commission.” Compensation jurisdiction of the Workmen’s exclusive in- “was an hand Respondent on the other contends ’ not did ’; that the evidence a matter of law dependent contractor as Workmen’s jurisdiction the Missouri bring the case within the issue any event, if there was an Compensation Commission; that in or independent contractor jury for on whether rest; and “the jury’s employee, put verdict issue legal instrue- proper by requesting defendant abandoned it not ’’ tioiflon that issue. \ (Chapter Compensation Act Whether not the Workmen’s 29, 1939) applicable R. S. was an affirmative defense and Kemper proof burden of on defendant. to establish that defense rested Gluck, 330, 733, (2d) 333; v. ex Ebert 327 Mo. 39 S. State rel. W. Trimble, 711, (2d) 83, 86; 333 63 W. rel. St. Louis v. Mo. S. State ex Hostetter, 102, 558, But, if (2d) Car Co. v. 345 Mo. 559. 131 W. S. evidence, including from a most solemn favorable view the whole by plaintiff record, admissions as a the facts are such admitted bring against defendant, matter of plaintiff’s right law of action injuries complained of, provisions within the of the Workmen’s Compensation Act, recover plaintiff may then and in that event in this action at common have been law the demurrer should Pfitzinger sustained. Pipe Corp., Line Stotscky to the Use of v. Shell 861, App. Mo. (2d) 955, that the S. W. 958. It is well settled 46. Compensation Workmen’s Act wholly substitutional character any rights which a law might have had at common been supplanted have superseded act, De applicable. if May Liberty v. Foundry Company, 327 Mo. 37 S. W. 645; Kemper Gluck, v. supra; State National Lead Co. ex rel. (Mo. App.), Smith (2d) 1061, concedes Respondent *10 this compensation “if is a case, it be a law cannot also common ' case.” alleged
Defendant were both and defendant under and subject Act, to Compensation Missouri Workmen’s
887 under the or that defendant was act evidence there no but by plaintiff’s an counsel that de- admission accepted it, other than offered. premiums. insurance Evidence paid compensation fendant paid that defendant com- purpose showing for the by defendant and the men premiums that worked pensation insurance its (appellant) says in brief him was excluded. Defendant with subject question that defendant is Work- does not “plaintiff ” employer, apparently as an this Compensation Act .and is true men’s deny assertion and insists further that respondent since does affirmed, judgment employee “unless an must a matter of law.” employee 3695(a), Section Was defendant? 1939, 3695(a), employee R. S. Mo. R. S. A. defines an See. follows: chapter as used in ‘employee’ “The this shall be construed to word every any employer, mean in the service of person as defined chapter, hire, express written, under contract or implied, oral or ” any appointment election, or or under master, adopted
This court has the definition of servant and in- dependent contractor as made Re- by American Law Institute’s Agency, 2, statement of the See. Law as follows: “A principal employs master is a who another to perform service in his right affairs and who has physical controls to control the performance conduct of other in the of the service. person
“A employed by servant is a to perform master service in his affairs physical whose conduct in the performance of service subject is controlled or is right by to control the master. independent “An contractor is a person who contracts with another him, to’ do for something is not but who controlled the other nor subject to right the other’s respect control with physical to his performance conduct in undertaking.” of the Barnes v. Real Silk Hosiery Mills, 563, 341 Mo. 108 (2d) 58, Chap- S. W. 61; State ex rel. Shain, 308, man v. 457, 347 147 (2d) 460; Mo. S. W. Bass v. Kansas City Co., Journal 681, Post 347 Mo. 548, 552; Hartwig- 148 (2d) S. W. Dischinger Realty Unemployment Co. Compensation v. Commission, 350 690, 78, 168 (2d) Mo. S. W. Haggard, Skidmore 837, v. 341 726, Mo. 110 (2d)W. 730, S.
Mattan v. Co:, 506, Hoover 350 557, 564, Mo. 166 (2d) give S. W. analysis more detailed principal factors to lie considered determining relationship parties, between and authorities are cited. Other factors which may be right considered are the party’s to use own assistants and to supervise (Sargent their work Clements, v. 337 1127, Mo. 88 (2d) 174, S. W. 177; Jackoway-Katz Cap Maltz v. Co., 336 1000, 1012, Mo. (2d) 909, S. W. 916) right and the of the party another substitute himself performance prescribed duties. Coul George Dry B. Co., Peck Goods Mo. 874, 32 758, 759. “No one of these factors is various itself controlling; but each, in accordance with the circumstances
888 factor, primary The weight. given given ease, will be the by employer the over control exercised extent of however, the remains employee. The master controls not adopted by the methods to the the but the servant’s accomplished by the to be only result employer of done. The work is in which such the manner details of only.” accomplished the result controls contractor independent 548, (148 (2d) Co., supra, S. W. City Journal Post Kansas Bass v. surroundings, own facts upon its depend 552). Bach must case tests aid specific established subjected to' circumstances, and be of Jackoway- test, right control. Maltz v. decisive the ultimate and of Mills, Mattan Hosiery supra; Silk Barnes Real Co., supra; v. Cap Katz 767, 163 Baking Co., 349 Mo. v. supra; Tokash General Co., v. Hoover employer over has control fact that the 554. The mere (2d)W. S. power to make altera reserved the done or has of work amount Hosiery controlling. Barnes Real v. Silk plans is not tions in Mills, to be designate specifications right plans supra. relation independent with an contractor inconsistent followed is not desired designation kind result ship, only it amounts to if free his agent by is left to reach contracting otherwise and the supra. give Haggard, The court v. must own methods. Skidmore bearing question upon heed circumstances varying to the whether employer only as person the result rendering service work, or represents the the means will of his by 1171, Quarries, Mo. 336 accomplished. is Rutherford v. Tobin which it 918, (2d) 921. 82 S. W. undisputed are doubt exists that court
Where the facts no independent law is an con may declare as matter of whether one merely County Milling Co., Baker v. Scott 323 tractor or a servant. 497; 1089, (2d) 494, Press, 20 317 Mo. Hoelker v. American S. W. 1008, 296 In this plain Mo. 1011. case it conceded parties independent employee. tiff an Both was either contractor or rely supporting primarily upon testimony own their plaintiff’s that, respective positions. is; therefore, It important to note while we light must consider the in a most favorable to evidence give him the all posi benefit of reasonable inferences supporting his tion, presented must issue from a consideration of we determine ’the testimony part his considered as a whole and not fr‘om from isolated plaintiff’s Haggard, supra. the rest. work Skidmore Whether subject right controlled or of control and whether by defendant actually right physical controlled or to control the think, fully is, conduct of performance by testimony conclusively plaintiff’s answered own when con as a sidered whole.
Appellant upon relies the case Miller particularly v. St. Louis Realty (Mo. 510; & App.), (2d) Securities S. Co. 103 W. and Vaseleou Realty Co., v. St. Louis & 130 Securities Mo. W. S. Appellant insists that “are cases of the case controlling these ’’ cases, they appeals involved bar. A mere reference to tbe shows affirming Com- judgments awards of the Missouri Workmen’s presented issues was whether pensation Commission and that one of the findings supported of fact were substantial the Commission’s competent employee evidence. involved said cases worked While arrangement *12 substantially plaintiff under the in this case same the testimony and the to be concerning appears control of his activities very testimony here, question being similar him no concerning an-employee presented as matter of law or decided in either of said cases. The opinion statement in latter that “there the is but one to employee” conclusion be drawn and is that he that was. mere obiter.
The contract plaintiff under which called for defendant worked to him at pay per day rate of job.” $12.00 the for his “labor on The contract, words my job,” of the “for labor on admit no substitution by plaintiff plaintiff per and day, could not collect the except $12.00 by personally performing his duties under the contract. While the contract work,” called for “brick changed contract was to cover - anything defendant wanted to have done. Plaintiff admitted patched that he “the doors and in cut some doors,” put floors, put ramp, built a easing, steel up doors, filled windows and built houses, smoke put steel trusses across the top houses, smoke hung the ceiling angle on irons, put plate tile, topped the smoke houses with an inch mortar, types and did other of work. Except for the work mentioned in the first proposal, there was no fixed amount or kind of work done, to be lump and no sum price paid. to be payment $12.00 was to be per day plus 2%, plaintiff and was to work on that basis as long as there was work to might do. The work continue indefinitely or might type terminate it at time. The and kind of work to be done' the place where it towas performed was to be by defendant, determined and it was so de- termined. Defendant had absolute complete control premises where the work towas be done and the conditions under which performed. to be There were-no specifica- advance tions for the work plans and the for the smoke houses and other details were worked out while the work progress. was in It is admitted that defendant did not know in done, what advance would be but the agreement was to cover anything that was done. Defendant could and did tell plaintiff, and the men working him, with when and where what to do and Avhento do it. The work on the smoke houses (ovens) and in the “cooler” was not mentioned or for in called any contract providing for a result to accomplished. Defendant ordered paid for materials, money pay plain- furnished the tiff’s helpers or assistants, paid liability insurance on plaintiff and his men, paid (through plaintiff name) his the Social Security tax on wages plaintiff men selected to assist him in his work. clearly It appears plaintiff’s testimony own
that per compensation, plaintiff’s $12.00 for own day was to be labor during regular and materials was 2% hours and the labor on for to compensate consultation him with for outside defendant’s representatives, activities before and after securing hours, and calling men, back him. who worked with Respondent points “bricklayer out contractor” plaintiff that was a engaged because special laying specialist brick'; his skill in that as a his work was specified particular supervision; proposal done without first pro- work for a lump price; sum second posal guaranteed price; the same furnished his own tools “brick trestles, boards”; mortar and mortar that he boxes selected and employed assistants; his own his pay- own roll and pay delivered the thereon; to the men listed that the names of these men were not on payroll; listed defendant’s told these men when work; Security to come (pay- that the Social through name; him and in his own that no Social tax) paid roll wages; no one told Security paid plaintiff’s tax was brick; mortar, trowel or set a how handle his how to how to mix employer as an the men under him listed himself *13 reporting Commission; employees Security Social to4he registered Compen- as a contractor the plaintiff with Workmen’s was Commission; and that defendant admitted he all sation “contracted says Respondent of facts plaintiff the work.” these made an brick law, independent contractor as a matter of at least an or created jury. issue of for the We think these insufficient to make fact facts testimony' jury plaintiff’s showing issue for view of detailed conclusively power that defendant had the to and direct the did details of the work to be done plaintiff his assistants and that there was no for calling contract a fixed or determined result to fulfilled. not We are so much with the concerned factors aid determining test, right control, the ultimate and decisive of when a determination of that ultimate and conclusively decisive test appears plaintiff’s testimony. from We think conclusively own it appears from plaintiff’s testimony own right the defendant the to direct the how details of the be performed to and the manner in which work was performed. the to respondent says But the plain- tiff’s testimony on that issue wrung “mere conclusion very sick man on cross objection examination.” No such made the trial. addition, In think the facts testified detailed by plaintiff conclusively show said the conclusion was correct and any contrary conclusion was erroneous. Respondent further insists plaintiff’s evidence contradictory was so conflicting on the issue of control that it cannot employee be said he was an as a matter law, of citing Adelsberger Sheehy, 954, v. (2d) 332 Mo. 59 644, 647(6). We do not so view evidence. Respondent insists plaintiff was independent selected, contractor because he em- ployed, paid, directed and controlled the men that crew of worked is, if defendant, of employee was an plaintiff If him. with physical conduct right control the had the or defendant controlled and the details his service of of performance in the done, in that then and event was to be the work in which manner working by him crew, men selected plaintiff’s members Hartwig- See, defendant. employees him, were also with Commission, Compensation Unemployment v. Dischinger Realty Co. con evidence shows no insists that Respondent further supra. bricklaying and required to co-ordinate trol over operation and with other “contractors prevent interference with changes plans carry or to into effect factory defendant’s did not purposes control for these and that specifications”; relationship. v. Rinds independent contractor O’Brien destroy the English, 340 1233, 1085, 1089; (2d) 70 W. Kourik kopf, 334 Mo. S. 901, support evidence does not 367, Mo. 100 S. W. The testimony plaintiff’s We own establishes the contention. hold that perform service for de employed law he was as a matter of right in its affairs that defendant and had the fendant controlled performance to control the conduct of physical service. employee if an Respondent plaintiff, next contends that even defendant, Compensation Act was not under the Workmen’s because accident, (2) (3) causal and (1) employment there was no incidental the em- operation was not of the usual business of A., ployer. See. R. S. Mo. R. S. Sec. 3695. says
Respondent “there was no accident and thé Workmen’s Compensation Act inapplicable.” Respondent insists “there were ticular time when no distinct unusual result of the work anything occurrence ivas doing. unusual or occurrences - . . unexpected which There was no were not occurred par respect plaintiff. with to this smoke or its effect general working plaintiff gradually conditions remained the same and *14 succumbed rather than suddenly by overcome some unusual being arising suddenly. Condition . . more or less . Plaintiff’s condition by brought about place the usual condition of and his of work was the cumulative of result contact with smoke and fumes over this the period employment.” Joyce of Respondent cites Luse- v. his. Co., 58, 918, 920; Stevenson 346 Mo. 139 (2d) Cape S. W. v. Row Foundry (Mo. App.), 113, Girardeau 141 (2d) 118; Downey Co. S. W. City Co., 803, 585; v. Kansas Gas (2d) 338 Mo. 92 580, S. W. State Hussmann-Ligonier ex rel. Hughes, 319, Co. v. 348 Mo. (2d) 153 S. W. 40, 42; and Respondent other cases. points further out that de opening fendant’s counsel in his jury statement said: “There n wasn’t any accident here at all. It is a breathing matter of kind, certain smoke and him says stuff of that and he that has caused to physical have bad condition. Our contention is is not the this place or the in try court which to that. up We set it have in our
892 Respondent claims case.” in issues this of the answer, and it-'as'.one no accident within there theory that trial it was defendant’s that however, by Defendant, answer act. meaning compensation of the con- petition and was allegations of the generally the had denied compensation were under and tending that concerning proof once to offer at case, plaintiff proceeded act. In and under the time, injuries place at the personal of receipt .the of de- if Even charged petition. in his statement circumstances ac- there was no that admission an be considered fendant’s counsel Act, the Compensation the Workmen’s the meaning cident within proceeded who upon plaintiff, acted accepted or was not admission meaning injuries within the and an accident there ivas prove that to was, If it applicable. act was compensation act and that of the accept to Plaintiff did have common law. plaintiff made no case at Clayes, Ruppel so. not do and did admission the so-called 833, 835. App. Mo. provides: 3695(b) A., R. Sec. Mo. S. 3695(b), R. S. Section shall, chapter ... con “The word ‘accident’ used happening event sud unexpected to mean an or unforeseen strued producing human fault and violently, without denly and with or ‘injury’ and injury. The term objective symptoms the time physical structure to only shall mean violence injuries’ ‘personal naturally there results body or infection and such disease ’’ from. leakage gas, fumes to to that due Plaintiff’s tended showr evidence condition, houses, were in bad smoke which and from the old smoke 1940; March, created and condition was an abnormal unusual hickory saw that, light gas some of the due failure to under through houses and burners, gas escaped the smoke fumes into dust that, September work; about place was at the walls into “coolers,” the ice ma 1, 1940, working in while leaky and pipes operation escaped and ammonia chines were bad”; had dense valves, that was “awful and days total gas only period twelve smoke, during and fumes provided of air was employment; that no fans or circulation his eyes; plaintiff got smoke in his that gas; remove that the smoke burned, full affected; watered and were so eyes they that his were unusually see; eyes hardly appeared he that his that could tears lungs gases into his inflamed; he breathed the smoke and red his throat he coughed; that smoke and gas affected so talk; smoke, gases and fumes irritated his hardly could breathing; he that from that time on interfered with throat and cold; that the at times cough something like a smoke liad a it; him; got so could not stand best dense he air; he repeatedly out into the go come down before, *15 working man on this been a well but while smoke condition, he something physical job he observed unusual about his
893 exhausted, tempera ran a cough, sluggish, easily began to felt became his pains He also suffered just felt bad all time. ture and addition, weight. In and chest, losing started complained thereof physical to the plaintiff’s theory on the violence based suit Taking and place. plaintiff’s at time body particular a structure of evidence, think it true, on demurrer to the as we must evidence as meaning accident suffered an within clearly appears plaintiff injuries as a 3695(b), supra, occurred result and that Section employment, in his abnormal, unexpected event an unforeseen arising more or less suddenly, producing objective symp injury. Supply Company, U. S. toms an Tindall Marshall’s Auto v. City 1189, (2d) 302, See, 306; Downey 348 Mo. 159 S. W. v. Kansas Co., 803, (2d) 580, 587; Vogt Gas 338 Mo. 92 W. Ford S. v. Motor (2d) 684, (Mo. App.), Co. 138 S. W. subject Respondent further was contends 1939,
act, (Third Subdivision), R. A., because Section 3693 S. Mo. R. S. S’693, particular Sec. employments, excludes as follows: “Employ operation ments which are but casual not incidental to the of the employer.” says usual Respondent business of was remodeling remodeling the brick work on doing job; was not (cid:127) defendant; usual business that it was not a recurring situation employment Respondent was casual. has overlooked that. 3695(d), Section R. S. as An employee employed follows:'‘ who is by employer the same than five and more oiie-half consecutive days work chapter shall for the purpose of regular be considered a ’’ employee. not a casual casual, Plaintiff regular was not but a employee. Co., McFall v. 333 61 Barton-Mansfield Mo. (2d) S. W. 911, 917. employee the work of as
Yras an “not incidental the operation of the employer?” usual business of The petition alleged “plaintiff the contractor became repairs undertake certain in and buildings.” about defendant’s Plain tiff’s required main instruction a finding that “plaintiff employed by defendant a bricklayer as to make repairs contractor certain on its (Italics buildings.” ours.) It was therefore immaterial that the evi by dence showed work done remodeling, well repairs patch work. holdWe detañed being done by plaintiff plant clearly defendant’s aas matter of law incidental operation of the usual business of defendant March Bernardin, v. 229 App. Mo. 246, 76 S. W. 706. Even cases cited respondent recognize repairs as incidental to the operation such a plant. Rucker Baer Blanke Extract & Preserving Co. (Mo. App.), (2d) 345, (an independent contractor case)." conclusively
Since it appears plaintiff’s from evidence and a most favorable of the whole evidence that view “employee” of defendant within the meaning of the Workmen’s Com- *16 case for a submissible Act, to make failed
pensation verdict for defendant. to direct a refusing erred in and the court jury assigned. judgment errors unnecessary to consider other It CC., Osclol, concur. Bradley and Van is reversed. adopted by Dalton, C., is foregoing opinion PER CURIAM: The judges All concur. court. opinion J. Corporation, Appellant, Ed Company, The J. R. Watkins 385 Cushman, M. Cushman. No. P.O. Lola Oldfield, 142. W. (2d) 174 S. Two, 4, 1943. Division October appellant. L. . J. Bess