(dissenting).
The Marion Steam Shovel Company manufactured an eight-yard capacity electric shovel in its Ohio factory and sold it to the Alston Coal Company in Missouri on terms customary in such transactions; that is, the manufacturer reserved title until the machine should be set up and paid for, and, in order to get it set up, sent out his experts and erecting tools from the factory, and the purchaser furnis'hed the labor. The job of setting up the machine occupied a number of men for months, and in the course of it a careless order was given by the manufacturer’s expert, his hoist operator jerked the load, his chain broke, and a workman on the- job was hurt. The workman has sued the manufacturer, and our question concerns the nature and extent of the liability.
The manufacturer contended that his relationship to the experts sent from his factory was fixed by the contract with the purchaser, which provided they should be deemed the purchaser’s servants, but this court held, on the first appeal, that the contract did not conclude that matter as to the injured workman. On the second trial it was found that in fact the experts were serving the manufacturer so that the manufacturer was deemed to be present on the job through his servants. It was found that he was responsible and liable to the injured workman for the servants’ negligence.
The manufacturer then presents that his liability is determined and limited by the Missouri Workman’s Compensation Act (chapter 28, Rev.St.Mo.1929 [Mo.St.Ann. § 3299 et seq. p. 8229 et seq.]). It is conceded that the act does limit the liability to the injured workman so far as the purchaser of the shovel is concerned, but it is held that the manufacturer is outside the act and is liable for $14,000 on a common-*550law verdict. The manufacturer was a “major employer” as defined in the act (Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.(2d) 130) and it seems to me that the conclusion which has been arrived at fails to carry out the plainly expressed command of the Missouri law.
The act contemplates that the cost of industrial accidents shall be imposed upon the industry and (save for exceptions with which we are not concerned) that every workman shall have speedy recovery of specified compensation against any person using his services at the time, whenever he is injured by accident arising out of and in the course of his employment. “The employer shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employe by accident arising out of and in the course of his employment and shall be released from all other liability therefor whatsoever.” Rev.St. 1929, § 3301 (Mo.St.Ann. § 3301, p. 8232). The word “employer” wherever used in the act is given a very broad meaning, and includes “every person * * * using the service of another for pay.” Rev.St. 1929, § 3304 (Mo.St.Ann. § 3304, p. 8238). (There are exceptions not relevant here.) And the word “employee” is just as broad and includes “every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied.” Rev.St.1929, § 3305 (Mo.St.Ann. § 3305, p. 8238). The words “services for pay” and “service under contract of hire” are here used solely to eliminate gratuitous services which have no place in industry. They do not mean that the paying or hiring must be done by the particular “employer” who is made chargeable with liability to furnish compensation to the injured workman. Pruitt v. Harker, 328 Mo. 1200, 43 S.W.(2d) 769. The limitation which the legislature intended to put upon the scope of the act is found in the language which limits its provisions to injuries which occur in the course of the workman’s employment. But there is no intent to limit or narrow the class that must pay. That class includes, as it ought to, every person (with irrelevant exceptions) who is using the services of the workman injured in the course of his employment. So considered, the act is coherent and rationally adapted to effect its object; that is, to impose certain and uniform obligation upon those who use the service of workmen and to accord certain and uniform benefit to those who labor in industry.
In this case the manufacturer w’as the owner of the parts of the electric shovel which was in the course of being set up, and he could get no pay for the shovel until he could get it set up. The injured workman, although he drew his wages from the coal company, had been directed by that company to do whatever the manufacturer’s expert told him to do, and, having consented, was working under the orders of the manufacturer’s expert to assemble the machine. So were the other workmen, including the hoist operator, who was paid by the manufacturer.
It has been found that the manufacturer'was on the job through his servants, the experts; and, if he was, it is very plain that he was “using the services” of the injured workman within the words of the Compensation Act; that is, the manufacturer, through his expert, was directing the . workman’s efforts, commanding and receiving his obedience, and the fruit of the labor inured primarily to the manufacturer. By “using the services” of the workman, the manufacturer was getting the machine parts that belonged to him assembled and his machine set up so that he could demand his pay for it. At the particular moment of the accident the manufacturer’s hoist operator had the immense weight of the dipper raised by the manufacturer’s hoist and hanging up in the air by a chain that belonged to the manufacturer. The manufacturer’s expert, bossing the job, told the workman to take hold of the dipper to guide it, and in obedience to the command the workman did so and was hurt. That the manufacturer used the workman’s services seems to me like an axiom — beyond argument. He used the man’s services, .the man got hurt in the course of his employment, and the command of the statute that the one who used the services be held liable in a certain specified way ought to be enforced by the courts.
It has been argued that the manufacturer and the workman did not, in every respect, occupy the relation of master and servant according to some common-law learning. There are lines of reasoning in that field leading to the conclusion that, although the manufacturer had his “erection tools” and his men there on the work, and one of his men was bossing the job. *551and another had a great weight lifted up in the air with a hoist, and the machine part had to be guided to its position by the hand of a workman, still the manufacturer was not the master of the workmen. The learning belongs to a past era in Missouri. The scrivener of her Workman’s Compensation Act knew about it and departed from common-law nomenclature altogether. The new law made the manufacturer of the shovel an “employer” of the workman when he “used the workman’s services” to set the machine up, and the old learning is not required to apply the plain words of the statute to the facts.
The act also provides that, “if the injury * * * occurs while the employee is in the joint service of two or more employers, their liability shall be joint and several, and the employee may hold any or all of such employers.” Rev.St.1929 § 3307 (Mo.St.Ann. § 3307, p. 8242). As an “employer,” wherever referred to in the act, is (with irrelevant exceptions) “any person who uses the services of another,” this provision may be read: “If the injury occurs while the employee is in the joint service of two or more persons who use his services, he may hold any or all of those who use his services.” Manifestly, the provision completely covers injuries to a workman when two or more persons are using his services. In a case like the present, where both the manufacturer and the purchaser of the shovel were acting together to set the shovel up so that the manufacturer could get his pay for it and the purchaser could dig with it, any possible resort to the common-law refinements about who is answerable as a master to a servant is completely eliminated, and, unless such resort is eliminated, the main legislative object, to establish a simple and uniform system of workman’s compensation, is hopelessly defeated. Either or both the manufacturer and the purchaser were liable to pay for the workman’s injury, and the liability of each was limited. The act covers the situation presented by the facts in words as- precise and clear as the most skilled philologist could pick out.
The act does accord a common-law action to a workman who has been injured by “a third person.” But, where a manufacturer has hoisted the dipper of his electric shovel and holds it suspended at the end of a chain, and calls on an obedient workman to guide it, such manufacturer is not a third person to such a workman. The act means a stranger, an outsider, who, neither by himself nor with others, is using the service of the workman. The provision reserving to the workman his common-law right against such a stranger completes the plan of the act as it has been laboriously evolved out of industrial experience and accords with the rationale of it.
The setting up of big machines brought into Missouri by manufacturers is an industrial operation that involves danger to workmen, and there is no reason to suppose that the Legislature intended to put those who are carrying on such an operation outside of the pale of the Workmen’s Compensation Act. Every reasonable intendment should be indulged to avoid such a crippling of the act. As the situation has been worked out here, the manufacturer of the machine is bereft of the defenses he would have if he were deemed a master setting the machine up through the work of his servants, he is deprived of the limitation of liability provided by the act, and is put in the position, to most practical intents, of an insurer of the workmen’s safety in an amount to be left to the jury. Such a discrimination between those mining coal in Missouri and the stranger who brings mining machinery within the gates was certainly never in the mind of the Legislature. Its act aims at uniform simplicity. I do not agree that such complex disparities ought to be brought about judicially. The decisions under the various Workmen’s Compensation Acts, which have been passed in many states, are pouring out in great numbers, and there appear to be as many opinions as there are men called on to express themselves. None of the Missouri decisions appears to cover the exact situation here presented. The only safe way is to write the opinion with the forefinger held upon the very words of the statute and with firm intent to enforce the act according to the spirit.
It seems to me the judgment should be reversed on the ground that the workman was entitled to statutory compensation, and' no more.