Opinion
No. 28211.
July 3, 1951. Motion for Rehearing or for Transfer to Supreme Court Denied September 7, 1951.
APPEAL FROM THE MADISON COUNTY CIRCUIT COURT, J. HENRY CARUTHERS, J.
Earl B. Simpson and Luke, Cunliff Wilson, St. Louis, for appellants.
Parke M. Banta and Edgar Banta, Ironton, for respondent.
This is a proceeding under the Missouri Workmen's Compensation Act. R.S. 1949, § 287.010 et seq. The claim was filed by Fred Earl Ramsey against Gross and Janes Company and its insurance carrier, Consolidated Underwriters. The claim alleged that claimant was an employee of Gross Janes Company, and that he was injured on May 10, 1949, at a sawmill on Highway 70, about four miles west of Fredericktown, Missouri. It was further alleged that claimant's right arm was severed between the wrist and elbow, and the right elbow and right shoulder severely cut and damaged. It was also alleged that the accident happened "while operating saw at the mill, clothing or watch chain caught in machinery and threw him against saw. Employee was sawing lumber at the time."
The answer of Gross Janes Company and its insurance carrier was a general denial.
The case was heard on stipulated facts before a referee of the commission. The referee found that claimant was an employee of Gross Janes Company at the time of the accident, and that the accident arose out of and in the course of the employment. Claimant was awarded compensation in the sum of $4,396. On application, there was a review by the full commission, which commission affirmed the award of the referee. The commission's finding was affirmed by the Circuit Court. From the judgment of the Circuit Court, Gross Janes Company, and its insurer, appealed.
The referee found that respondent sustained permanent injuries on the occasion in question, which injuries consisted of "loss of right major hand between wrist and elbow, and 50 per cent loss of use of right major shoulder." This finding is not in dispute.
The sole question on this appeal is whether or not claimant was an employee of appellant Gross Janes Company at the time of the accident in question and therefore entitled to benefits under the Workmen's Compensation Act.
The mill was owned by Gross Janes Company and was being operated at the time under an agreement between claimant and said company. By this agreement Ramsey paid the company, for the use of the mill, three cents per tie manufactured and $1 per thousand feet board measure of all lumber cut with the mill. It was further stipulated that:
"Mr. Banta: * * * Ramsey's compensation would be the sale price of the product of the mill delivered at the yard of Gross Janes Company, so far as railroad cross-ties were concerned, and at whatever other point Ramsey might find it expedient to deliver the material. The company was to maintain and keep up the mill, except that Ramsey was to furnish sawteeth, and other expenses of operation to be his gas and oil.
"All railroad ties cut with this mill were required to go to Gross Janes Company. The mill was located on the premises of Gross Janes, where they were, and had, for some time been operating it by other arrangements with a previous person. Ramsey cut with this mill timber from the tract of land, which timber belonged to Gross Janes, and, in addition, he cut timber which he bought or bargained for which came from other sources, commonly called custom timber.
"Gross Janes had the same interest in the custom timber that they had in timber cut from their own land, that is, they received all of the cross-ties by their arrangement, and Ramsey was required to deliver them to Gross Janes, which was in conformity with their arrangement, and their interest in all other timber of every other kind, cut with this mill, was one dollar ($1.00) per thousand board measure.
"In the course of the operations, timber that was placed on the skids at the mill was placed there in whatever order it might be delivered to Ramsey, that is, * * * if a load of oak logs came in, they were placed on the skids, if the load was mixed, and contained some pine which would be cut into lumber, it would be placed on the skids in the order which it was delivered, and the cutting operation was after the same fashion, that is, the logs were cut in the order in which they come up off the skids, if there was a pine log, it was placed on the carriage of the mill and cut into lumber; if the next log up was an oak log, it was placed on the mill carriage and cut into a tie. * * *
* * * * * *
"Mr. Banta: Mr. Elmer Warren was the local representative of the Gross Janes Tie Company to whom Mr. Ramsey was responsible in the making of his reports as to the production of the mill, and he also had the general supervision on what was cut with that mill; that is, as to the types of timber that were cut; it being generally understood, as between the company and the operator of the mill, that a majority of the product was to be ties in which Gross Janes were interested, * * *.
"Mr. Simpson: (Interrupting) I think we could stipulate that he (Warren) would have authority in this arrangement any time Ramsey didn't produce a certain percentage of ties which they were interested in buying, that he had authority to stop this arrangement.
C* * * * * *
"Mr. Banta: Yes.
"Mr. Simpson: I'll stipulate the part I want to cover, that other. It is stipulated that on the 10th day of May, 1949, at the time of this particular accident in which Mr. Ramsey lost his arm, he was cutting a pine log in which the Gross Janes Company had no interest except for the one dollar ($1.00) per thousand feet charge for the use of the mill, and that the Gross Janes Company did not buy the product of this pine log or any other pine logs which were cut into timber, they being interested only in cross-ties, made from hardwood lumber, such as oak. That it was while cutting one of those pine logs — some adjustment being necessary on the saw — and Mr. Ramsey, in attempting to make the adjustment, suffered the accident in which he lost his right arm, right (major) arm, between the elbow and the wrist.
"It is further stipulated, that Mr. Ramsey, in operating this mill, in addition to furnishing the gas and oil and saw-teeth, and other operating expenses, except repairs, was also required to hire his own employees who worked on the mill; he was also required to hire the men who cut the logs in the woods, and to pay for the hauling of the logs to the mill, and the hauling of the finished product to the place of purchase. These items of expense were the sole obligation of Mr. Ramsey, and not the Gross Janes Company. That the Gross Janes Company were only interested in the production of ties of a certain designated size and material, namely, 6x8 and 7x9 ties, 8 foot 6 inches long, that the Gross Janes Company did not exercise direct supervision over Mr. Ramsey in the method and manner of his operating the mill and producing the ties required, that that was left entirely up to Mr. Ramsey.
"It may be further stipulated that Gross Janes Company did not buy any of the pine lumber produced by this mill under the operation of Mr. Ramsey.
"It may be further stipulated that the pine log on which Mr. Ramsey was working at the time of his injury was purchased by said Ramsey from a man by the name of Blankenship, and this pine log did not come off of the tract of land which Gross Janes had purchased the standing timber, and on which the mill was located at the time.
"Mr. Banta: We'd like the record to show that the day of this accident, as well as upon other dates, the cutting operations were such, that oak logs from which the ties that were cut, as well as pine logs, were from the lumber that was cut alternately, according to which type of log came up upon the carriage next in the operation, and that obtained on the date of the accident, that he had cut oak that day as well as pine.
"Mr. Simpson: Yes, that was the general custom, that the logs would be cut in the order on which they came up on the skids.
* * * * * *
"Mr. Banta: Let the record show that in order for this man to operate this mill in the usual and customary fashion, he was required, when he bought a tract of timber, often required, as in the Blankenship timber, to buy all of their timber in order to get the oak, and every time he bought a tract of timber, or bought custom timber, he was required by the owner of the mill to see to it that at least a reasonable proportion, or a proportion generally, was oak, in which the company was interested.
"Mr. Simpson: That is agreed.
"Mr. Banta: And that he didn't want this pine particularly, and wasn't interested himself in the pine, but was obliged to buy all of the man's timber in order to get the oak in which Gross Janes were interested.
"Mr. Simpson: You are talking about the Blankenship timber?
"Mr. Banta: (Continuing) And Mr. Warren, incidentally, had the authority to say in advance whether or not the custom timber could be purchased with any percentage of pine in it."
An employee is defined by Section 287.020, R.S.Mo. 1949, as follows: "The word `employee' as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election."
Section 287.030, R.S.Mo. 1949, defines an employer as follows: "The word `employer' * * * shall * * * mean:
"(1) Every person, partnership, association, corporation, * * * using the service of another for pay."
Section 287.040, R.S.Mo. 1949, provides that: "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 shall be liable under this chapter 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."
Whether or not the respondent in this case was an employee within the meaning of Section 287.020, supra, depends primarily upon whether or not he was in the service of the Gross Janes Company under a contract of hire. In our view, Ramsey was not in the service of Gross Janes Company, but was engaged in the independent business of manufacturing and selling cross-ties and lumber. In furtherance of that business he contracted with the Gross Janes Company for the use of the sawmill located on appellant's premises. There was no contract of hire. Ramsey, instead of receiving wages, paid appellant for the use of the mill three cents per cross-tie manufactured and $1 per thousand feet of lumber manufactured; and, as an additional consideration, agreed to sell to appellant all cross-ties manufactured. Ramsey was privileged to purchase timber from others, and to dispose of all lumber on the open market. Under this agreement, respondent was merely a lessee of the sawmill in question, bound by his contract to sell certain of his manufactured products to appellant.
Appellant did not exercise any control over the work performed by Ramsey under his contract. It was stipulated that: "the Gross Janes Company were only interested in the production of ties of a certain designated size and material, namely, 6x8 and 7x9 ties, 8 foot 6 inches long, that the Gross Janes Company did not exercise direct supervision over Mr. Ramsey in the method and manner of his operating the mill and producing the ties required; that that was left entirely up to Mr. Ramsey." But it is argued by respondent that the right to control was possessed by the Gross Janes Company by virtue of the provision of the agreement which required Ramsey to make reports to Mr. Warren, appellant's local representative, who had the authority to say in advance whether or not custom timber with a percentage of pine in it could be purchased, and authority to terminate the arrangement whenever Ramsey failed to produce a certain percentage of cross-ties.
The foregoing provision, while it reserved to the Gross Janes Company some measure of control, has relation merely to the "results" and not to the methods to be employed in the performance of the contract. It is not inconsistent with the conclusion that Ramsey was carrying on his own business on appellant's premises. It was to appellant's interest to secure from the operation of the sawmill as many cross-ties as possible and it was for that reason it reserved authority. Warren to veto the purchase by Ramsey of custody timber and to terminate the arrangement when in Warren's judgment Ramsey failed to produce sufficient cross-ties to make Ramsey's operation of the mill profitable for appellant.
It is urged by respondent that the fact that he was put in charge of a sawmill belonging to appellant to produce cross-ties from timber cut from appellant's land compels the inference that respondent was an employee of Gross Janes Company. If such fact is regarded as having such tendency, its probative significance is manifestly overcome by other facts in the record. The fact of the ownership of the mill becomes a negligible factor in view of the further fact that Ramsey was put in charge of the mill under an agreement whereby he paid appellant for the use of the mill, and agreed to furnish saw teeth and the oil and gasoline necessary to its operation. Respondent was not paid wages, but secured compensation for his labor from the profits derived from the sale of the products manufactured; he was free to hire as helpers any one he chose; he went into the market and purchased timber from others; he hired the men who cut the logs in the woods; he paid for the hauling of the logs to the mill, and for hauling the finished products to the place of sale; and lumber manufactured was sold in the general market. The fact that Ramsey was, under the contract, required to sell to appellant all cross-ties, whether manufactured from timber grown on appellant's land or from the timber purchased from others, does not, when considered in connection with all the facts, disprove the independence of the contract, but, rather, it appears as a consideration for the rental of the equipment, and is consistent with the conclusion that Ramsey was carrying on his own manufacturing business. In our opinion, respondent failed to show that he was an employee within the meaning of Section 287.020, R.S.Mo. 1949.
The facts do not disclose that Ramsey was an independent contractor entitled to compensation under Section 287.040, R.S.Mo. 1949. An independent contractor has been defined as one who is engaged by another to do a specific piece of work for a specific recompense. In the case at bar, Ramsey was not employed to cut timber and manufacture cross-ties for appellant; nor did he received any compensation from appellant for work done on the latter's premises. Ramsey was in business for himself, and not in the service of appellant. The cross-ties and lumber he cut for himself, and when manufactured belonged to Ramsey and not to appellant. The lumber manufactured was sold on the open market by Ramsey for his own benefit. The cross-ties were, by the terms of the contract, sold to appellant.
Nor was the work performed by Ramsey shown to be an operation of the usual business which Gross Janes Company conducted on the premises in question. It does not clearly appear what the appellant's business actually was. It might be inferred that said company was engaged in the business of buying and selling cross-ties. Buying and selling cross-ties is a different occupation from cutting timber and manufacturing cross-ties and lumber, so that if we assume that appellant carried on its business on the premises in question, respondent has failed to make out a case under Section 287.040, supra. Wright v. Pierson, 238 Mo.App. 1157, 195 S.W.2d 519; Pitts v. Maupin, 230 Mo.App. 221, 88 S.W.2d 384; Gholson v. Scott, Mo.App., 130 S.W.2d 216; Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332; Rucker v. Blanke Baer Extract Preserving Co., Mo.App., 162 S.W.2d 345.
In the stipulated facts there is a statement that the sawmill was located on the premises of Gross Janes Company, "where they were, and had, for some time been operating it by other arrangements with a previous person." If that statement means that the company had previously been renting or leasing the mill, the statement still does not disclose what the company's "usual business" was, and certainly is not tantamount to a statement that the company had itself been operating the mill. What were the "other arrangements with a previous person" is not disclosed. The ownership of the mill and the renting of it in order to obtain revenue, or to promote the supply of cross-ties which the company would buy, does not put the appellant in the business of cutting timber, and the business of manufacturing cross-ties and lumber, so that it can be said that Ramsey was engaged in "an operation of the usual business which he (the employer) there carries on."
In our opinion, there was not sufficient competent evidence in the record to warrant the making of the award.
The judgment appealed from is reversed.
McCULLEN and BENNICK, JJ., concur.