Summary
In Perrin v. American Theatrical Company, 352 Mo. 484, 178 S.W. (2) 332, it was held that a musician, a member of Earl Carroll's Vanities, was not a statutory employee of the American Theatre when he fell on a temporary stairway leading from the stage to the floor of the parquet.
Summary of this case from Viselli v. Missouri Theatre Bldg. Corp.Opinion
No. 38580.
February 7, 1944. Rehearing Denied, March 6, 1944.
WORKMEN'S COMPENSATION: Master and Servant: Musician in Travelling Show: Theatre Building Company Not Statutory Employer. Plaintiff was a musician employed by the corporation which produced Earl Carroll's Vanities, and was injured in the St. Louis theatre owned by defendant and furnished fully equipped for the production of travelling shows. Plaintiff does not come within the provisions of the Missouri Workmen's Compensation Act, as defendant was not his statutory employer, the usual business of defendant being the furnishing of facilities for giving entertainments rather than the giving of them through its own efforts.
Appeal from Circuit Court of City of St. Louis. — Hon. Edward M. Ruddy, Judge.
AFFIRMED.
A.B. Lansing, Moser, Marsalek Dearing and J.C. Jaeckel for appellant.
(1) The usual business carried on by defendant at its theatre was the presentation of theatrical productions, and defendant entered into a contract with Joe Perrin's employer, Hollywood Theatrical Corporation, under the terms of which the latter was to furnish the production known as Earl Carroll's "Vanities" for presentation at defendant's theatre. At the time he was injured, Joe Perrin was upon defendant's premises in connection with his duties as an employee of said Hollywood Theatrical Corporation, in fulfillment of said contract, and his injuries were the result of an accident arising out of and in the course of his employment. Consequently, defendant's relationship to Joe Perrin was that of statutory employer. Secs. 3692 (a), 3698 (a), R.S. 1939; Wors v. Tarlton, 234 Mo. App. 1173, 95 S.W.2d 1199; State ex rel. Wors v. Hostetter, 343 Mo. 945, 124 S.W.2d 1072; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153; Atlas Powder Co. v. Hanson, 136 F.2d 444; Pruitt v Harker, 328 Mo. 1200, 43 S.W.2d 769; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174; Kennedy v. J.D. Carson Co., 149 S.W.2d 424; Morehead v. Grigsby, 132 S.W.2d 237; Cates v. Williamson, 117 485 S.W.2d 655; Simpson v. New Madrid Stave Co., 227 Mo. App. 331, 52 S.W.2d 615; Meyer v. Adams, 50 S.W.2d 744. (2) Joe Perrin's average annual earnings did not exceed $3,600 and his rights and defendant's liability are governed by the Missouri Workmen's Compensation Act. Secs. 3695 (a), 3710 (e), 3710 (g), R.S. 1939; Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046; Mossman v. Chicago Southern Airlines, Inc., 153 S.W.2d 799; Lamker v. Schiller, 166 S.W.2d 246; Werner v. Pioneer Cooperage Co., 155 S.W.2d 319; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Russell v. Ely Walker D.G. Co., 332 Mo. 645, 60 S.W.2d 44, 87 A.L.R. 953; Reed v. Kansas City Wholesale Grocery Co., 236 Mo. App. 402, 156 S.W.2d 747; Heisey v. Tide Water Oil Co., 92 S.W.2d 922; Toon v. David G. Evans Coffee Co., 103 S.W.2d 533; McClintock v. Skelly Oil Co., 232 Mo. App. 1204, 114 S.W.2d 181. (3) The Missouri Workmen's Compensation Act applies to all injuries received in this State, regardless of where the contract of employment was made, and if Perrin had not been insured by his immediate employer, he could have successfully prosecuted a claim against defendant for compensation under the Missouri act. Being subject to the burdens of the act, defendant is entitled to the benefits conferred on employers thereby, one of which is immunity from actions at common law based upon injuries sustained by employees. Secs. 3691, 3698(d), 3700 (b), R.S. 1939; State ex rel. Weaver v. Mo. Workmen's Comp. Comm., 339 Mo. 150, 95 S.W.2d 641; Also cases cited under point (1), supra.
Karl M. Vetsburg, Joseph Nessenfeld and Freeland L. Jackson for respondent Perrin; James J. Seeley and Leahy Leahy for respondents Hollywood Theatrical Company and Massachusetts Bonding Insurance Company.
(1) The Workmen's Compensation Act creates the statutory relationship of employer and employee only with respect to persons who have work done under contract on or about their premises, which is an operation of the usual business which they there carry on and while the alleged employee is doing work which is in the usual course of such persons' business, and excludes the landlord-tenant relationship except where fraudulently created. Here, defendant's usual business was maintaining a theatre for compensation, not producing shows, and plaintiff was not doing work in the usual course of defendant's business. Secs. 3698 (a), 3698 (b), R.S. 1939, Cummings v. Union Quarry Const. Co., 231 Mo. App. 1224, 87 S.W.2d 1039; Langley v. Imperial Coal Co., 234 Mo. App. 1087, 138 S.W.2d 696. (2) The act cannot apply unless defendant is a major employer, i.e., employs more than ten regular employees, whose average annual earnings do not exceed $3600. Plaintiff's evidence did not show this essential fact. Even defendant's evidence (which, of course, cannot be considered on demurrer) fails to prove this fact. Employees of the Hollywood Theatrical Corporation cannot be deemed defendant's employees because they were not engaged in any work on or about defendant's premises, and their compensation was not shown. Secs. 3692, 3695 (a), R.S. 1939; State ex rel. Ebert v. Trimble, 333 Mo. 711, 63 S.W.2d 83. (3) The plaintiff was not an employee within the meaning of the Workmen's Compensation Act since his average annual earnings exceeded $3600. Hence the act cannot apply. Sec. 3695 (a), R.S. 1939. (4) The plaintiff was not in the employ of Hollywood Theatrical Corporation continuously during the full year next preceding his injury. His average annual earnings should therefore be determined under either subdivision (c) or (d) of Section 3710, R.S. 1939. If subdivision (c) applies, the evidence favorable to plaintiff shows that traveling musicians such as was plaintiff average $90 per week, and that, in general, most of the men in his profession doing his type of work customarily work fifty-two weeks in each year. Plaintiff himself had formerly averaged $5000 each year. This evidence shows average annual earnings of $4680 per year. Section 3710 (c), R.S. 1939; Lamker v. Schiller, 136 S.W.2d 371; Urseth v. Encyclopedia Brittanica, 343 Mo. 1083, 124 S.W.2d 1101. (5) If subdivision (c) does not apply, then subdivision (d) must govern. The uncontradicted evidence showed that plaintiff's employer operated throughout the working days of the year. Hence, the employment was such that the annual earnings should be regarded as 300 times plaintiff's average daily earnings. The resultant figure is a sum far in excess of $3600. Section 3710 (d), R.S. 1939; Hartman v. Union L. P. Co., 331 Mo. 230, 53 S.W.2d 241; Coble v. Scullin Steel Co., 54 S.W.2d 777; Ropp v. Moon Bros. Mfg. Co., 226 Mo. App. 845, 44 S.W.2d 888; Bicanic v. Kroger Grocery Baking Co., 117 S.W.2d 650. (6) Subdivision (e) does not apply. This can be used only with respect to employees in employments in which it is the custom to operate only a part of the whole number of working days in each year. As stated, however, the Hollywood Theatrical Corporation operated throughout the working days of the year, and, in addition, plaintiff showed that musicians doing his type of work averaged fifty-two weeks work in the year. Defendant's evidence simply showed that local musicians (a different class than plaintiff) averaged forty weeks work in St. Louis. This evidence cannot be considered on the demurrer, and, in addition, is irrelevant. Moreover, even on defendant's theory, plaintiff's annual earnings exceeded $3600. Section 3710 (e), R.S. 1939; Hartman v. Union Electric L. P. Co., 331 Mo. 230, 53 S.W.2d 241; Dauster v. Star Mfg. Co., 145 S.W.2d 499. (7) The Missouri Workmen's Compensation Act in no event applies to this case. Both the plaintiff and his employer are residents and citizens of California, the contract of employment are made in California, compensation insurance was carried under the California Act, and an inference is permissible that the contract of employment provided that the Missouri Act shall not apply. Under the circumstances there is no substantial reason for holding, at the instance of a third person, that the Missouri Act is applicable, even if the facts showed that the relationship of statutory employer and employee would have existed under the Missouri law. Sec. 3700 (b), R.S. 1939; State ex rel. Weaver v. Mo. Workmen's Comp. Comm., 339 Mo. 150, 95 S.W.2d 641; Deering's Codes of Calif. (1937), Labor Code, Div. IV (Workmen's Compensation), sec. 3852; Miller v. Yellow Cab Co., 308 Ill. App. 217, 31 N.E.2d 406; Bradford Electric Light Co. v. Clapper, 286 U.S. 145. (8) There can be no presumption that the Missouri Act applies because plaintiff, a citizen of California, had no opportunity prior to the accident to reject the act. Deering's Codes of Calif. (1937), Labor Code, Div. IV (Workmen's Compensation), sec. 5000; Sec. 3690, R.S. 1939; Mayberry v. Fruin-Colnon Contracting Co., 327 Mo. 386, 37 S.W.2d 574; Warren v. American Car Fdry. Co., 327 Mo. 755, 38 S.W.2d 718.
This is an action for damages for personal injuries. Plaintiff (Perrin) had verdict and judgment for $8000.00. Defendant has appealed.
The sole question presented (assignment that verdict for defendant should have been directed) is whether plaintiff had the right to maintain a common law action for his injuries. Defendant contends that the Missouri Workmen's Compensation Act controls and prevents such action.
Plaintiff, a resident of California, was a musician who came to St. Louis from Chicago as a member of an orchestra accompanying a road show called Earl Carroll's Vanities. This show was to play for a week in defendant's theatre. The troupe arrived about 9:30 A.M. Sunday, March 10th, 1940 and registered at the American Hotel. Plaintiff went to the theatre about 11:30 A.M., with the orchestra director and a member of the cast, for the purpose of making arrangements for seating the orchestra and placing instruments. Rehearsal was to be held that afternoon and the first performance given that evening. There was a temporary stairway, leading from the stage to the floor of the parquet, which had not been fastened to the floor of the stage. When plaintiff stepped on it, to examine the orchestra pit, it moved, causing him to fall and be injured.
Plaintiff was paid benefits under the Compensation Act of California at the rate of $25.00 a week, a total of $1985.00, and also medical and hospital expenses, by his employer, Hollywood Theatrical Company, and its insurer, Massachusetts Bonding and Insurance Company. They were permitted to intervene in order to establish a lien for amounts paid under the California Act. Plaintiff's employer operated a theatre in Hollywood where the regular Vanities show ran 52 weeks each year and plaintiff expected to be employed there when the road show completed its tour.
Defendant's theory of the application of the Missouri Act is that Section 3698a (R.S. 1939) Mo. R.S. Ann. made it a statutory employer of plaintiff because plaintiff was an employee of an independent contractor doing work "under contract on or about (defendant's) premises which is in the operation of the usual business which (defendant) carries on." [Citing Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769 and similar cases.]
Plaintiff says this section does not apply because "the usual business of the defendant in this case is the operation of a theater rather than the production of theatrical performances by companies such as that of which plaintiff was an employee." Plaintiff further says: "it would appear from the contract between the defendant and the Hollywood Theatrical Corporation that the business of the defendant is simply furnishing a theater, all set up, and that it was no part of its business to actually produce the show."
The contract between the Theatre Company and the Hollywood Company, as stated in defendant's brief, provided for "the appearance of the `Vanities' at defendant's theatre in St. Louis during the period beginning on March 10, 1940, and ending on March 16, 1940, said engagement comprising regular evening and the usual holiday and matinee performances; and provided for the apportionment of the receipts from the performances between the parties." The Hollywood Company also "agreed to carry liability and compensation insurance in an approved company, and upon its failure so to do defendant was authorized for the term of the agreement to purchase such insurance for the benefit of the employees of Hollywood Corporation and to deduct the cost of the premiums of such insurance from the first money due the latter under the contract." The Theatre Company agreed to furnish its theatre "lighted, heated and cleaned, with the scenery and equipment therein contained, janitor, ushers, ticketsellers, doorkeepers, coupon and regular tickets, house programs, regular house license for a period of one (1) week"; also certain extra musicians and stagehands to work performances, place scenery and remove baggage. The Hollywood Company agreed to "give said performances in a proper and creditable manner, with complete cast of characters, ballet and supers, and all costumes for the same; also to furnish all perishable properties and spot, X-ray, floods and any other form of lamps and electrical equipment required."
[334] There does not seem to be any Missouri ruling on this exact situation. However, the controlling principle has been frequently stated. It is: "if the work being done at the time of injury is not an operation of, or in the usual course of, the business which the employer customarily carries on upon his premises, but is only incidental, ancillary, or auxiliary thereto, then the contractor, subcontractor, or his employee who is injured while engaged in such character of work is not a `statutory employee' within the meaning of the act, and the owner or occupant of the premises having the work done under contract is not to be deemed the employer of such injured party for the purpose of having liability cast upon him under the provision of the act." [Rucker v. Blanke Baer Extract Preserving Co. (Mo. App.), 162 S.W.2d 345 and cases cited l.c. 347. See also Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Stratis v. McLellan Stores Co. (Mass.), 42 N.E.2d 282; Lehman v. Grace Oil Co. (Kan.), 98 P.2d 430; 58 A.L.R. (Note) 882; 105 A.L.R. (Note) 588; 71 C.J. 490, Sec. 212.]
Substantially the situation we have here was before the Supreme Court of Wisconsin in Madison Entertainment Corporation v. Kleinheinz, 248 N.W. 415. There the entertainment corporation operated an athletic field equipped with floodlight equipment suitable for holding rodeo shows, baseball games and other such events at night. Claimant was employed as baseball player by Mr. Lenahan, who was the sole owner and operator of a team called the Madison Blues, member of the Wisconsin State League. He "hired the players, bought uniforms, directed practice, paid the players, and furnished uniforms and other equipment." He made arrangements to use the field for night baseball games, for part of the regular league schedule. "It was agreed that the entertainment corporation was to collect and retain the gate receipts, pay the visiting team, and give to Lenahan a stipulated or guaranteed amount for each game in addition to furnishing advertising and baseballs."
The court held that claimant was not entitled to compensation as a statutory employee of the entertainment corporation. The court said that the Wisconsin statute concerning employees of contractors and subcontractors "was intended to deal with situations where a person or corporation discharges his or its duties under a contract by subletting work, or where such person or corporation delegates his or its usual business to another under contract"; and that "the chief purpose of provisions of this type is to protect the employees of subcontractors who are not financially responsible, and to prevent employers from relieving themselves of liability by doing through independent contractors what they would otherwise do through direct employees." The court, however, ruled: "The Madison Entertainment Corporation was not organized to give entertainments through and by its employees. Its business was the promotion of entertainments in order to exploit the facilities of the baseball field. Its position was analogous to that of the owner of a theater who gives guaranties to traveling shows in order to promote the profitable operation of the plant constituting the theater. Its business was the furnishing of facilities for giving entertainments, rather than the giving of them through its own efforts. Hence the corporation was not attempting to discharge its business through independent contractors and thus avoid the necessity of doing business through direct employees."
We approve and adopt this ruling as applicable to the case before us under the provisions of our Workmen's Compensation Act. We hold that plaintiff was not injured while doing work "which is an operation of the usual business which (defendant) there carries on" (in the operation of the plant constituting its theatre); and that he was not a statutory employee of defendant under Section 3698a. Defendant's reply brief stresses the provision of the contract, supra, authorizing it to purchase compensation insurance for the benefit of the employees of the Hollywood Company, as an admission of the applicability of the Missouri Act. However, the provisions of our Workmen's Compensation Act cannot be enlarged by waiver, estoppel or contract. [Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 142 S.W.2d 866, and cases cited.]
The judgment is affirmed. All concur.