Opinion
No. 7140.
January 12, 1953.
APPEAL FROM THE CIRCUIT COURT, GREENE COUNTY, WARREN L. WHITE, J.
James H. Keet, Springfield, for appellant.
Smith Williams, Springfield, for respondents.
This is an action under the Workmen's Compensation Act, Section 287.010 et seq. RSMo 1949, V.A.M.S. Richard Sherman Choate filed a claim before the Industrial Commission of Missouri, October 25, 1950, against Herman Dunaway, employer, and the New Amsterdam Casualty Company, insurer, for compensation for injuries sustained in a fall from a ladder, while working upon a building, owned by Dunaway. The alleged injuries occurred October 7, 1950, and it was admitted that plaintiff sustained injuries arising out of the course of employment. It was also admitted that Dunaway was an employer operating under the Workmen's Compensation Act.
Upon a hearing of this claim, before the Commission, an award was made in favor of claimant for the sum of $802.09. The Commission found that Herman Dunaway was plaintiff's statutory employer at the time of the injury. This judgment was appealed to Division No. One of the Circuit Court of Greene County, where, on October 23, 1951, the award was reversed and the cause remanded to the Industrial Commission. In reversing the judgment on the first appeal, the trial court found that as a matter of law claimant could not have been a statutory employee but stated in the judgment that there was sufficient evidence to possibly justify a finding that plaintiff was an actual employee, because of the control and supervision exercised by defendant, Dunaway, over the method and manner in which plaintiff performed his duties. For that reason the trial court stated that the cause was remanded to the Commission for further proceedings consistent with the opinion.
The trial court refused a motion, on the part of defendants, to modify this judgment based upon the grounds that the issue of an actual employee was not before the court.
On April 1, 1952, the Commission rendered the following judgment:
"The above styled case is now before the Industrial Commission of Missouri, having been remanded by the Circuit Court of Greene County, Missouri, for further proceedings not inconsistent with the opinion of said Court. The Commission, in accordance with said opinion, finds in favor of the above-named employee and against the employer and insurer, and awards compensation for personal injury as provided in the Missouri Workmen's Compensation Law, as follows:
"For temporary total disability the sum of $25.00 per week for 28-1/7 weeks.
"Said payments to begin October 8, 1950, and to be payable and be subject to modification and review as provided by said Law."
The Commission made the following additional findings of fact and conclusions of law:
"We find from all the evidence, and in accordance with the opinion of the Circuit Court of Greene County, that Richard Sherman Choate was the actual employee of Herman Dunaway; that said employee sustained an accident arising out of and in the course of his employment with Herman Dunaway on October 7, 1950, * *".
From this judgment defendants appealed to the Circuit Court of Greene County, Division No. I, and by change of venue the cause was removed to Division No. II, of said court, where it was heard upon the transcript of the record and judgment rendered on May 31, 1952, reversing the award of the Industrial Commission on the grounds that the findings of said Commission were not supported by substantial evidence. From this judgment plaintiff appealed.
In the opinion we shall refer to appellant as plaintiff and to the respondents as defendants.
There is but one issue before the court and that is, was there substantial evidence to support the findings of the Industrial Commission that plaintiff was the actual employee of Herman Dunaway, defendant, at the time of the injury?
The evidence touching the issue of employment is as follows:
Plaintiff testified,
"Q. Were you employed by anyone along about the first week in October, 1950? A. Yes, sir.
"Q. State to the Referee what employment you had at that time — state what work you were doing. A. I believe I was working for Carl Gooch.
"Q. Do you remember definitely it was Mr. Gooch? A. Yes, it was."
The witness stated he started to working for Gooch about three months before and had been working with him continuously since that time. He gave this testimony:
"Q. How did you happen to come to work with Mr. Gooch? A. Well, he needed a man and asked me if I would work for him, and I told him as soon as I was through with the job I was on I would.
"Q. What kind of business is Mr. Gooch in? A. Roofing business."
He testified he was injured October 7, 1950, between 9:30 and 10:00 o'clock A.M. He stated he was going up a ladder with a roll of felt and the ladder slipped and fell with him. He stated that was the first morning that he had worked on defendant's house. He gave this testimony:
"Q. Who were you working with at the time? A. Carl Gooch."
He stated that the ladder belonged to Dunaway; that Mr. Gooch got it out of the garage at the house where they were roofing; that he was carrying the felt up the ladder to be nailed to the roof; that that was a part of the work he and Gooch were doing on that day. He stated he saw defendant, Dunaway, one time on the morning before they started to work; that he and Gooch went to a house directly behind the one on which they were working where Dunaway was working; that Gooch had a conversation with Dunaway about 30 or 45 minutes before plaintiff was injured; that he was about four feet from Gooch at the time. He stated Gooch wanted to find out whether he should go ahead and put on the felt on the house where they were working because of rain. He stated Dunaway said he didn't know whether it would hurt or not. He stated Gooch asked Dunaway if he should come back and work the next day, Sunday; that Dunaway said he didn't want men working for him on Sunday, Plaintiff testified that defendant, Dunaway, was a home builder; that after the accident Mr. Gooch took him home. He gave this testimony:
"Q. When you first started to work for Mr. Gooch, how much were your wages? A. That would be seventy-five cents an hour."
He stated that about thirty days before the accident he got a ten cent an hour raise. He testified he had never seen defendant, Dunaway, since the accident happened. He stated Gooch did not have a regular place of business. He gave this testimony:
"Q. During the time you worked with him, did he at any time supply any of the roofing materials for any of the jobs you worked on? A. No, he didn't."
He stated that Gooch did the same kind of work that he did. That is, they laid felt and drove nails and put the shingles on the felt. As to his work he gave this answer: "A. I laid felt and laid shingles."
Defendant, Herman Dunaway, testified as follows:
"Q. What is your occupation, Mr. Dunaway? A. Contractor; building contractor; residence building. You could call me a speculative builder. I build in my own name to sell."
He stated he and his wife owned the building that was being roofed by Gooch and plaintiff on the day of the injury; that he was building this house with the intention of selling it when completed. He testified he did not know plaintiff but had heard of him. He gave this answer: "A. * * * I have heard of him; never seen him in my life."
He stated that Mr. Keet, attorney for plaintiff, called him and said plaintiff was hurt on his job. He stated that his foreman had instructions to report injuries to him so he could report to the insurance company; that his foreman never reported this injury. He gave this testimony:
"Q. Had the matter been reported to your foreman? A. No. I let my shingling to Mr. Gooch, I believe, sir.
"Q. What arrangements do you have with Mr. Gooch? A. He puts them on by the square, two dollars or two-fifty a square.
"Q. Have you used Mr. Gooch on some other construction work? A. Yes, I have.
"Q. Over what period of time? A. Over the last year.
"Q. What was your arrangement with Mr. Gooch as to how to get him on the job? A. He had no telephone when I first contacted him and I had to call his sister. He moved and had a telephone and I called him and told him I had a house to roof. He comes and roofs it and tells me how many he puts on and I pay him so much a square.
"Q. While he is putting the roof on, do you have your foreman stay on the job to tell him how to get the roofing on? A. We did the first job or two but found he knew his business.
"Q. On October 7, 1950, were you present at 1560 South Delaware to tell Mr. Gooch how to put the roofing on the house? A. I don't believe I was, I would call and tell him it was ready and he came and went to work one morning and it rained him out and I did not pay any particular attention and in a day or two I went back and the roof was on and Mr. Gooch came and told me how many he put on and I paid him."
He testified he never paid Mr. Choate or had never met him. He gave this testimony:
"Q. When you pay Mr. Gooch for the work he does in roofing houses, do you take any withholding tax from the check? A. He is a sub-contractor and puts it on for so much money.
"Q. Do you withhold any Social Security? A. Not from Mr. Gooch; he is a sub-contractor.
"Q. On the occasions you called Mr. Gooch and told him you had a roofing job to do, who provided transportation for Mr. Gooch to come from his home or place of business to the house which was being constructed? A. He did I suppose he did; he had an old car."
The witness testified that in roofing a house no special tools or equipment are required. All they have is a hatched and knife to cut with. He stated that Gooch furnished the hatchet and cutting knife. He gave this answer: "He did. I don't furnish anybody tools." He did state that Gooch might have used his ladder. He stated that his ladder and jack were used by Mr. Gooch if he wanted to.
The witness testified that he carried insurance on the men who worked for him but that he did not have plaintiff on the payroll; that he kept a record of the men he employed and paid withholding tax on the payroll but that he never heard of plaintiff. He stated that when he contacted Gooch concerning the job on which plaintiff was injured, he never requested Gooch to bring anyone to help him. He gave this answer: "A. No, sir, never do. I just tell him I have a roof ready for him and it is understood I pay two dollars a square. * * *"
He stated he furnished the nails and shingles that are required and that Gooch puts them on. On cross-examination he testified that he thought Gooch always had someone with him to help. He gave this testimony:
"Q. What work, if any, did Mr. Gooch do in connection with the roofing of the houses you have had him work on? A. That is all; just put on composition roofing. The sheathing and all carpenter work is done.
"Q. He puts it on himself? A. He puts on the composition shingles. They are ordered and laid in the yard and a keg of nails and he puts it on.
"Q. You buy the material he puts on? A. Yes, sir, and for two dollars a square, supposed to cover ten feet a square.
"Q. At any rate, on most jobs he would have somebody working? A. On all the jobs, I left it to him and nobody else. He was the roofer."
The witness testified that on this particular house he was supervising the building thereof. He stated that on the first house the foreman watched Gooch every minute and then reported that Gooch was a good man. He testified that Mr. Gooch worked for other contractors and that he was an experienced man. He testified that Mr. Gooch worked for other contractors and that he was not an experienced man. He stated he did not need to give him any other instructions how to put on a roof; that Gooch knew how to do that.
The plaintiff testified that he had been working for Gooch about three months; that he learned from Gooch about three or four days before the injury that he was going to work on defendant's house; that Gooch told him. He stated Gooch would always pick him up and take him to the job in his car; that he would work any place that Gooch had to work; that he was paid by Mr. Gooch, in cash, every time Gooch was paid. He stated that while working for Gooch, he worked on other residences not belonging to Dunaway and that it usually took between one and two days to roof a house. He gave this testimony:
"Q. How many roofing jobs did you do for Mr. Dunaway during that time? A. This is the first one, the only one I helped on.
"Q. All during the three-month period, you worked on residences for other people; is that correct? A. That is correct."
He stated that on the morning of the accident he and Gooch were the only persons around the building; that they went to work about eight o'clock. He gave this testimony:
"Q. Was anybody there to tell you how to do the roofing? A. Mr. Gooch was there to tell me.
"Q. He is the only one? A. At that house, yes."
We think that this is all the material evidence in the record touching the issues to be decided.
Under plaintiff's first assignment of error relative to the matters in consideration under this appeal, it becomes necessary for this court to determine the effect of the judgment of the trial court in Division No. I reversing the finding of the Commission on the ground that plaintiff was not a statutory employee as a matter of law.
The trial court, in its opinion, states that the evidence shows as a matter of law that plaintiff was not a statutory employee of Dunaway but, in its judgment, there might be evidence sufficient to sustain the finding of the Commission on the ground that he was an actual employee. He states that the Commission found that plaintiff was employed by an independent contractor and, therefore, was not an actual employee and, for this reason, he reversed the case and remanded it to the Commission for hearing in accordance with his opinion. His opinion, clearly, as shown by the judgment, was that under the evidence in the record plaintiff was not a statutory employee of Dunaway.
On April 1, 1952, the Commission made its award in accordance with the trial court's opinion and, on the same record, without further testimony or hearing, in this opinion, found that plaintiff was an actual employee of defendant, Dunaway, and rendered a judgment in his favor in the same amount as in the former judgment.
We agree with plaintiff's first assignment of error as to the procedure to be followed by this court in deciding the case.
Section 287.490 RSMo 1949, V.A.M.S., reads in part as follows:
"* * * The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
* * * * * *
"(3) That the facts found by the commission do not support the award;
"(4) That there was not sufficient competent evidence in the record to warrant the making of the award, * * *"
In Harper v. Home Imp. Co., Mo.Sup. 235 S.W.2d 558, 559, the court states the law thus:
"In our review, we are required to determine whether the commission could have reasonably made its findings, and reached its result, upon consideration for all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.' Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649. As of course, we view the evidence in the light most favorable to the successful party below. Tokash v. General Baking Co., 349 Mo. 767, 163 S.W.2d 554, cited and relied on by both parties here."
We agree with section (B) under this assignment of error that the judgment of the trial court in the first appeal from the Commission becomes the law of the case.
In Creason v. Harding, 344 Mo. 452, 126 S.W.2d 1179, on page 1183, Judge Clark, speaking for the court, says:
"Our former opinion became and, so far as the facts are the same, remained the law of the case,' but it is not as to all issues `res adjudicata.' Judge White wrote our former opinion in this case. He also wrote our opinion in the second appeal of the case of Denny v. Guyton [33] Mo. 1115, 57 S.W.2d 415], supra, in which he reviews the authorities and points out the difference between the terms `res adjudicata' and `the law of the case,' saying:
"`"The law of the case" applies where a general principle of law is declared as applicable to the facts of the cleared as applicable to the facts of the case. If it is remanded generally all issues are open to consideration on a new trial. The pleadings may be amended or new and controlling facts produced. Often a second appeal presents a totally different case from that appearing on the first appeal. In all cases of general reversal, whether different issues and different evidence appears in the second trial or not, this court, upon a second appeal, if convinced that it has, on the first appeal, announced a rule of law out of harmony with our former rulings or has been mistaken as to some controlling fact (not in the weight of the evidence), may overrule its pronouncement in the former appeal. * * * A statement of the law as applied to the facts in the cause is one thing and a determination of the issues tendered in the cause is another thing. Where a case is reversed and remanded with specific directions to try certain issues only, all other issues are determined on the first appeal. In general reversal and remand the court states a rule for further proceeding on the issues joined. Where the reversal is with specific directions as to certain issues, other issues determined are foreclosed to further inquiry. The first states "the law of the case"; the second is res adjudicata final.' (331 Mo. 1115, 57 S.W.2d 419.)
"This question has been passed upon many times by this court. It is unnecessary to review the cases. They hold: If the facts on the second trial present a different case from that presented on the first, the trial court will be bound by our prior decision only so far as the principles of law then declared are applicable to the new state of facts. * * * (Italics ours.)"
In views of the above law, as declared by the Supreme Court, we find that on appeal from the award of the Commission to the Circuit Court, the trial judge reviewed the facts as shown by the record and held as a matter of law that under the evidence and findings of the Commission, plaintiff was not a statutory employee and reversed the case with specific instructions to the Commission to redetermine the case upon the question of whether or not plaintiff was an actual employee. And the Commission redetermined and made its award in accordance with the opinion of the trial court and based the award upon its finding that plaintiff was an actual employee. There was no new testimony taken by the Commission and its second award was made solely upon the record as it was in the first hearing. From this award of the Commission defendants appealed and the trial court in the second appeal held that there was not substantial evidence to support the award of the Commission and reversed the case and, from this judgment of the trial court, plaintiff appealed to this court.
Under the law as declared in Creason v. Harding, supra, the only issue presented to us for consideration is, was there sufficient competent evidence in the record to warrant the making of the award? Or, as the trial judge said, was there substantial evidence to support the findings of the Commission?
This holding is not in conflict with Overcash v. Yellow Transit Co., 352 Mo. 993, 180 S.W.2d 678, 684, cited by plaintiff. That case merely held that the Commission has jurisdiction to consider the defense of res adjudicata and to determine whether it should bar recovery. Res adjudicata is affirmative plea in opposition to a claim or a defense. It goes to the merits, not to the jurisdiction.
The Commission in making its award states that it made the award in pursuance to the trial court's opinion which directed the Commission to determine the question of whether or not plaintiff was an actual employee, so the authority is not in conflict with our holding herein.
Plaintiff's second allegation of error is that the trial court erred in finding that there was not sufficient substantial and competent evidence to support the findings of the Commission.
With this assignment we cannot agree. It is unnecessary to again set out the testimony. We have, by questions and answers mostly, set out all of the testimony on this issue. The trial court properly found that there was not sufficient substantial and competent evidence to support the finding of the Commission that plaintiff was an actual employee.
We think that we have fully answered assignment of error No. III, and quoted the law, from the opinion of the Supreme Court, as to our duties in passing upon the question of statutory employee.
Assignment of error No. IV has no merit whatsoever. There is nothing in the judgment of the trial court to show that he tried to substitute his judgment for that of the Commission. There is nothing in the reply brief that has not been fully decided in the opinion.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.