Employer operated a funeral home in Clinton, Missouri. As of the date of the accident, Employer employed two full-time employees, the owner and his wife. However, Employer stipulated that it was operating subject to Missouri's Workers' Compensation Law as of April 17, 2017. If Employer's work demand required additional help, Employer paid friends or acquaintances by the day to assist. For example, the record describes the owner's father as a part-time helper.
Worker, who was 79 years old, had worked in funeral homes in the past, including for the previous owners of Employer. Worker was good friends with the current owner of Employer. Years earlier, Worker was hired by the current owner to work in a different funeral home. About two weeks prior to April 17, 2017, Worker called the current owner of Employer, indicating that he was bored and offered to assist in any way. Worker had previously transported bodies for
Injury No.: 17-024570
Worker: Eugene Henshaw (deceased)
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Employer, but not for overnight trips. There is no record how much Employer paid on those prior occasions.
Employer normally transported dead bodies in its course of business for local trips, from the place of death to the funeral home and then to the place of burial or to the crematorium. If a body needed to be transported to another state, Employer normally took the body to a nearby airport, where it was flown to the other state for another funeral home to pick up. Employer normally had the option of using another business to transport dead bodies. The record is not clear if that was an option for out-of-state ground transports.
In this matter, Employer had made a pre-burial arrangement with a client to have her body transported by van to a funeral home in Temple, Texas. Such an arrangement was unusual for Employer; this instance was the second out-of-state ground transport in the four to five years the current owner owned Employer. Employer was unable to spare personnel to make the trip to Temple, Texas due to the press of business. When the client passed, the current owner's wife suggested that the owner call Worker to transport the body.
Employer contacted Worker about transporting the client's dead body from Employer's funeral home in Clinton, Missouri to a funeral home in Temple, Texas. Worker would use the van owned by Employer, which had been altered so it could hold a casket or cot for the purpose of transporting dead bodies. Worker agreed to meet at the Clinton, Missouri funeral home at 8:30 a.m. on April 17, 2017, to pick up the van and body. Worker was to transport the body to the funeral home in Temple, Texas by the end of the day. Employer agreed to pay Worker $500.00, plus expenses, meals, and motel lodging. Employer encouraged Worker to take his time back and suggested that Worker travel with his spouse to make a vacation out of the trip. Worker's spouse was not able to accompany Worker.
When Worker arrived at the Clinton, Missouri funeral home, the owner of Employer provided a map and directions to the Temple, Texas funeral home. Worker then left with the van and body. Employer did not call Worker during the day until around 8:00 p.m. that evening after the funeral home in Temple, Texas called asking where Worker was. At that time, Worker was around twenty miles away from the Temple, Texas funeral home. Worker informed Employer at that time that he had lost his way in Oklahoma and was therefore running late. During that call, Employer gave Worker the telephone number for the funeral home in Temple, Texas. Employer did not call Worker again. Worker subsequently crashed prior to reaching the Temple, Texas funeral home and died.¹
Conclusions of Law
The dispositive issue in this matter is whether Worker was an employee of Employer. Here, Worker failed to meet his burden to establish that he was an employee.
Section 287.020.1, RSMo, provides, in pertinent part:
> 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, including executive officers of corporations. Except as otherwise provided in section 287.200, any reference to any employee who has been
¹ We do not need to supply further details about Worker's death or accident because we do not need to reach the issue of causation in this matter.
Injury No.: 17-024570
Worker: Eugene Henshaw (deceased)
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injured shall, when the employee is dead, also include his or her dependents, and other persons to whom compensation may be payable. (emphasis original)
**Right to Control Test**
"The pivotal question in determining the existence of an employer-employee relationship is whether the employer had the right to control the means and manner of the service, as distinguished from controlling the ultimate results of the service." *Chouteau v. Netco Constr.*, 132 S.W.3d 328, 332 (Mo. App. 2004) (inner citations omitted). The court in *Chouteau*, continued:
> If the alleged employer's actual control or right to control the work performance is not readily apparent from the evidence, several factors must be considered: (1) whether the work is part of the regular business of the employer; (2) whether the employment is a distinct occupation requiring special skills; (3) whether the alleged employee may hire assistants; (4) whether the work is usually done under supervision; (5) whether the alleged employee must supply his own tools, equipment, supplies, and materials; (6) the existence of a contract for a specific piece of work at a fixed price; (7) the length of time the person is employed; (8) the method of payment, whether by time or by the job; and (9) the extent to which the alleged employee may control the details of his work, except as to final results.
*Chouteau*, 132 S.W.3d at 332-33 (inner citations omitted).
Here, the application of the factors above are not necessary because the facts are readily apparent that this was not an employer/employee relationship. Employer controlled the ultimate results instead of controlling the means and manner of the service. The ultimate result in this case was to deliver the body to the funeral home in Temple, Texas by the end of the day on April 17, 2017. Employer provided the body and the van to Worker on that morning and provided basic directions. However, Employer did not monitor how fast or how slow Worker drove, whether he actually followed the directions or not, or, if or when he took breaks. The only time Employer actually called Worker was nearly twelve hours later, after the funeral home in Temple, Texas called asking where Worker was. The phone call was to ensure the ultimate results instead of controlling the manner or means of the service.
In any event, by reviewing the above factors, we reach the same result. Regarding the first factor, Worker was not requested to perform part of Employer's regular business. It was not Employer's regular business to transport bodies via automobile across state lines. Regular business only required Employer to transport bodies as far as an airport, but not actually across the state line. We are not persuaded with the argument that because Employer had to transport each body for some distance, either from the place of death to the funeral home or from the funeral home to the final resting place, that interstate transportation was a regular part of Employer's business. Employer regularly transported bodies locally and not across state lines. This factor strongly points towards an independent contractor relationship.
Regarding the other factors:
(2) Worker did not require special skills to transport the body to Texas. This factor points towards an employee relationship.
Injury No.: 17-024570
Worker: Eugene Henshaw (deceased)
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(3) Worker was told that he could have his wife accompany him. This indicates that Employer allowed Worker to have others assist him. This factor points towards an independent contractor relationship.
(4) The record does not clearly show if transportation across state lines is usually done under supervision. Therefore, Worker did not meet his burden with this factor. In any event, as the only hint of supervision during the trip was Employer's call nearly twelve hours into the trip, we conclude that there was effectively no supervision here. This factor points towards an independent contractor relationship.
(5) Employer did not require Worker "to supply his own tools, equipment, supplies, and materials." Employer allowed Worker to use its van. This factor points towards an employee relationship. However, we are not persuaded that this factor holds much weight in this matter, because Worker was only making this one-time trip. Employer's van was specially equipped to hold a body in a casket or on a cot. Because of the brevity of the contract, it was more reasonable for Worker to use Employer's van instead of obtaining his own means to transport the body. Had Worker transported bodies regularly with Employer's van, then this factor would have strongly indicated an employee relationship.
(6) There was an oral contract for a specific job at a fixed price. This factor points towards an independent contractor relationship.
(7) Employer contracted with Worker to perform work for a one-time trip that realistically involved an overnight stay. There was no other agreement to continue the working relationship upon the completion of this one-time trip. This factor points towards an independent contractor relationship.
(8) Employer planned to make a one-time payment for the single trip. Th