RONIE PRUITT V. HELEN V. HARKER, Appellant.
Division One
November 20, 1931
43 S. W. (2d) 769
Leahy, Saunders & Walther, Harold F. Hecker and Lyon Anderson for appellant.
The established facts are that defendant owned several thousand acres of timbered land in Iron and Madison Counties. She desired to have the timber suitable for that purpose cut and sawed into mer-
One of the operators of defendant‘s saw mills was William Pruitt, father of this plaintiff. He operated one of defendant‘s sawmills under the agreement to operate same at his own expense and to furnish his own help and was paid $8.50 per thousand feet for whatever lumber he sawed. He employed three men at $2 per day of ten hours and with the help of his three sons, the plaintiff, sixteen years of age, being one of them, he was operating one of defendant‘s sawmills when plaintiff received his injuries. The defendant paid him $8.50 per thousand feet of lumber sawed and he hired and paid his help and the expense of up-kеep and operation of the mill. He also furnished the tools, axes, etc., used by himself and his employees in doing this work.
The plaintiff, a boy sixteen years of age, was not working for his father for wages or by contract, but was merely helping his father as is usual for a minor child living at home. He testified that there was no contract of employment of any kind between himself and his father and no wages were paid or expected; that he worked for his father and obeyed him because he was his father and never received or expected any wages. He, however, did a man‘s work and defendant knew this and knew that in operating the sawmill the father expected his son to do this work.
The evidence showed that the defendant had only three persons in her direct employ or on her pay-roll. Each of the operators of a sawmill had not to exceed six or seven employees.
When this claim was filed, defendant took the position that plaintiff was not in her employ and did not attend or take any part in the first hearing had by the Commission. On this hearing the Commission made the following findings of fact and rulings of law:
“The employer was duly notified of the hearing of this case, but failed to appear for the same.
“The evidence shows that the Harker Company (Helen V. Harker) owned and operated five sawmills in the State of Missouri, and owned the land upon which the timber was cut to be sawed in said mills. It further appears that each of the aforesaid mills emрloyed an average of seven men.
“The employee‘s father, William Pruitt, received from the Harker Company $8.50 per thousand feet, board measure, for the lumber he sawed at one of the mills. He employed the men to work at the mill and had about seven men at the time the employee was injured. Among the seven men were three of Mr. Pruitt‘s boys, including the injured employee, who received no set wage. However, the other employees hired by Mr. Pruitt received $2 per day or $12 per week. The testimony shows that the employee was doing a man‘s work.
“On June 6, 1928, the employee, while working at the mill, sustained a personal injury by accident arising out of and in the course of his employment, as a result of which it was necessary to amputate his right (major) hand at the wrist.
“Rulings of Law.
“1. Under
Section 10 (a) of the Act 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 shаll be liable under this act 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.“2.
Section 22 (b) of the act provides that in the case of injured employees who earn either no wage or less than the earnings of adult day laborers in the line of employment in that locality the yearly wage shall be reached according to the average earnings of adults in the same class in the same employment.”
An award was then made in favor of the claimant for $250 medical aid and $8 per week for one hundred and seventy-five weeks for permanent partial disability.
The matter was first heard by one of the commissioners and notice given of the finding. The defendant then appeared and requested a hearing by the full Commission. This was granted and a further hearing had when the defendant introduced some additional evidence. The full Commission then affirmed the former finding and award and made its final award for the same amounts. An appeal was then taken by defendant to the Circuit Court of Iron County, where the matter was again heard. The Circuit Court of Iron County heard the matter and entered its judgment affirming the finding
The first contention of defendant is that she was a minor and not a major employer of labor and therefore was not subjeсt to the
It is true that defendant did not, directly at least, employ the plaintiff and she paid him no wages. He was employed, if at all, by his father, William Pruitt, one of the sawmill оperators, who sustained the relation of independent contractor to the defendant. The Compensation Act, however, must govern and its provisions in this respect are very broad. Under the subject of “Who deemed an ‘employer,‘”
Tested by this provision of the statute, the defendant is made an employer of this plaintiff, at least so far as compensation for injuries received in the course of his employment are concerned, although plaintiff was employed by William Pruitt, an independent contractor of defendant. Here the defendant was having work done under contract on or about her premises, to-wit, cutting and sawing her timber into lumber; and this was an operation of the usual business which she there carried on. In such cаse the defendant, as the one having the work done on her premises, is liable as employer to the employees of the contractor, though an independent one, when in-
We do not think this construction of paragraph (a) of
This is the construction placed on
In Langston v. Selden-Breck Const. Co., 37 S. W. (2d) 474, the court again construed
We have examined the cases of Industrial Commission v. Everett, 108 Ohio St. 369, 140 N. E. 767, and Mellvain v. Blue (Kans.), 203 Pac. 701, and find that they deal with the liability to employees of independent contractors under the common law and not under a statute such as we have here enlarging such liability so as to include employees of subcontractors, though independent contractors. In fact, the last case mentioned was decided on the authority of an earlier case in the same state where it was pointed out that it was not to be taken as a construction of a statute similаr to ours.
Defendant next contends that plaintiff was not an employee even of William Pruitt, one of the independent contractors doing this work for the defendant, and consequently was not directly or indirectly an employee of the defendant. This contention is based on the fact that plaintiff was at the time of his injury a minor child, sixteen years of age, a son of the alleged immediate employer, William Pruitt. Plaintiff was, therefore, working for his father on account of that relation and not under any contract of employment, express or implied. His father was entitled to his services without compensation and none was promised. Plaintiff was not working for wages, but was living with and being supported by his father, William Pruitt, for whom he was working at the sawmill. He was, however, doing the work of an adult, for which William Pruitt was paying others $2 per day. It was also shown that at the time William Pruitt contracted with defendant to operate this sawmill, defendant knew that plaintiff would make a hand for his father at this work.
We may readily agree that under the general law the relation of employer and employee did not exist between William Pruitt and his minor son, this plaintiff; that no contract of employment, express or implied, existed, and that William Pruitt did not in fact and was under no legal obligation to pay plaintiff for his work. This is too elementary and well established to require any citation of authorities. This case does not, however, involve the question of liability for wages between plaintiff and his fathеr. The act under which plaintiff claims compensation for his injuries is, as its name indicates, a workmen‘s compensation act rather than an employees’ compensation act. That plaintiff was a workman engaged in work covered by this act, we think, is clear, whether the strict relationship of employer and employee existed or not. The act itself must govern and the general law must give way to the plain terms of the statute.
This act should be liberally construed as to the persons to be benefited. [Howes v. Stark Bros. Nurseries & Orchards Co., 22 S. W. (2d) 839, 844.] And a doubt as to the right of compensation should be resolved in favor of the employee. [Betz v. Columbia Telephone Co., 24 S. W. (2d) 224.]
We have examined the cases of Aetna Life Ins. Cо. v. Industrial Accident Com. (Cal.), 165 Pac. 15, and Hillestad v. Industrial Com., 1.41 Pac. 913, and find that they deal with this question under the rules of the common law unaffected by statute such as we have here.
Defendant also contends that
Workmen‘s compensation acts which make the employer liable in compensation to his employees, regardless of any negligence or fault of the employer, have repeatedly been held constitutional against all such attacks, and it is only a short step further to extend such protection to employees of independent contractors. We have held this act constitutional against attacks from practically every angle. [DeMay v. Liberty Foundry Co., 37 S. W. (2d) 640.]
Nor is there any force to the argument that the person having the work done has no recovery over against the independent contractor unless such immediate contractor is a major employer of labor.
We hold, therefore, that the rulings of the Compensation Commission and of the Circuit Court on appeal are correct, and the judgment of the Circuit Court is affirmed. Ferguson and Hyde, CC., concur.
PER CURIAM: - The foregoing opinion by STURGIS, C., is adopted as the opinion of the court. All of the judges concur.