Adams v. Continental Life Ins. Co.

• Decision Date: 05 January 1937
• Docket Number: 34091,34106
• Citation: 101 S.W.2d 75,340 Mo. 417
• Parties: Lola M. Adams v. Continental Life Insurance Company, Employer, and General Accident Fire & Life Assurance Corporation, Insurer, Appellants
• Court: Missouri Supreme Court

101 S.W.2d 75

340 Mo. 417

Lola M. Adams v. Continental Life Insurance Company, Employer, and General Accident Fire & Life Assurance Corporation, Insurer, Appellants

Nos. 34091, 34106

Supreme Court of Missouri

January 5, 1937

Motion for Rehearing Overruled Dee. 14, 1936.

Motion to Transfer to Banc Overruled January 5, 1937.

Appeal from Circuit Court of City of St. Louis; Hon. H. A Hamilton, Judge.

Reversed.

James P. Aylward, James A. Waechter and Frank P Aschemeyer for Continental Life Insurance Company.

(1) The findings of fact made by the Workmen's Compensation Commission, if sustained by substantial competent evidence are conclusive on appeal. In determining the sufficiency of the evidence to sustain the award, the court must view the evidence in the light most favorable to the award disregarding all evidence which might have justified a different award. Secs. 3339, 3342, R. S. 1929; Wadley v. Employers Liab. Assur. Corp., 225 Mo.App. 636; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Hoffman v. Railroad Co., 63 S.W.2d 427; De Moss v. Evens & Howard Fire Brick Co., 57 S.W.2d 720; Gillick v. Fruin-Colnon Const. Co., 65 S.W.2d 927; Hinkle v. Miller, 56 S.W.2d 825; King v. Mark Twain Hotel Co., 60 S.W.2d 675; Kiser v. O'Connor Ptg. Co., 60 S.W.2d 636. (2) The evidence in the record is amply sufficient to sustain the award of the commission. Sec. 3310, R. S. 1929; Cases under Point (1). (a) There is absolutely no evidence that a new contract of employment was made in St. Louis in 1931, but the record simply shows that Adams was continuously employed since 1924, without disclosing the situs of the employment agreement made in 1924. De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961. (b) Mere changes or modifications in the work performed by Adams when he came to St. Louis, are not sufficient to establish a "new contract of employment" as that expression is used in the statute. State ex rel. v. Ry. Co., 318 Mo. 290; Hartman v. Union Elec. L. & P. Co., 53 S.W.2d 241; Selser v. Bragmans Bluff Lbr. Co., 142 So. 690; Pettiti v. Pardy Const. Co., 130 A. 70; Tripp v. Ind. Acc. Comm., 4 P.2d 917. (3) The award is for the right parties and should have been sustained, since there is no competent evidence to prove that the accident arose out of and in the course of Adams' employment. De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 962; Smith v. Levis-Zukoski Merc. Co., 14 S.W.2d 470; Jenczewski v. Aluminum Co. of America, 199 A.D. 156, 191 N.Y.S. 392; United States Fuel Co. v. Ind. Comm., 310 Ill. 85, 141 N.E. 401; Chicago Daily News Co. v. Ind. Comm., 306 Ill. 212, 137 N.E. 797. (4) If the trial court is correct in its conclusion that the commission has jurisdiction of this claim, and that respondent is entitled to compensation under the Missouri Statute, then General is primarily liable and Continental is only secondarily liable, to respondent. Sec. 3325, R. S. 1929. (a) In order to arrive at the proper interpretation of the policy of insurance issued by General and in force at the time of this accident, the entire contract must be considered, and it must be viewed from its four corners. State ex rel. v. Allen, 295 Mo. 307, 243 S.W. 839; Swanson v. Georgia Casualty Co., 315 Mo. 1007, 287 S.W. 455; Wehrhohn v. Ft. Dearborn Casualty Underwriters, 221 Mo.App. 230, 1 S.W.2d 242.

Allen, Moser & Marsalek for General Accident Fire & Life Assurance Corporation.

(1) The Workmen's Compensation Commission, in support of its final award, found (a) that the contract of employment under which deceased was working at the time of the accident was made in 1924; (b) that no new contract was made when deceased was transferred to St. Louis in 1931; and (c) that the evidence was insufficient to show the situs of the 1924 contract. Under the authorities and the specific provisions of the Workmen's Compensation Act, such findings were findings of fact, and as such are conclusive and binding upon the courts, on appeal, if sustained by evidence. Secs. 3339, 3342, R. S. 1929; Wadley v. Employers' Liab. Assur. Corp., 225 Mo.App. 631, 636; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Hoffman v. Railroad Co., 63 S.W.2d 427; De Moss v. Evens & Howard Fire Brick Co., 57 S.W.2d 720; Gillick v. Fruin-Colnon Const. Co., 65 S.W.2d 927; Hinkle v. Miller, 56 S.W.2d 825; King v. Mark Twain Hotel, 60 S.W.2d 675; Kiser v. O'Connor Ptg. Co., 60 S.W.2d 636; Jones v. Century Coal Co., 46 S.W.2d 198. (2) Even if it were an admitted fact in this case that when Adams was brought to St. Louis in October, 1931, there were some modifications in his work, such fact would not authorize the commission to find that a new contract of employment was entered into in St. Louis, between him and his employer. The expression "contract of employment made in this state," used in the Compensation Act as the basis of jurisdiction over accidents occurring in other states, cannot be construed as equivalent to "any change in the details or situs of the employee's work." The statute should not be given a construction which would cause confusion. State ex rel. v. Ry. Co., 318 Mo. 291; Hartman v. Union Elec. L. & P. Co., 53 S.W.2d 241; Selser et al. v. Bragman's Bluff Lbr. Co., 146 So. 690; Pettiti v. Pardy Const. Co., 130 A. 70; Tripp v. Ind. Acc. Comm., 4 P.2d 917; Texas Employer's Assn. v. Volek, 69 S.W.2d 33. (a) The audits referred to in evidence were mere transcripts of the accounting records of the Continental, and were made up solely upon information furnished by said company. They constitute no evidence of the making of a contract of employment between Adams and the Continental in St. Louis, nor do they constitute admissions or representations chargeable against the appellant General Accident Fire & Life Assurance Corporation. Freeland v. Williamson, 220 Mo. 231; Blodgett v. Perry, 97 Mo. 272; Scrutchfield v. Sauter, 119 Mo. 623; Skoczlois v. Vincour, 221 N.Y. 276, 116 N.E. 1004; Fidelity & Cas. Co. v. Baker, 18 P.2d 894; In re Humphrey, 227 Mass. 166, 116 N.E. 412; Employers Liab. Assur. Corp. v. Ind. Acc. Comm., 203 P. 95. (b) The answer signed and filed by the Continental, and the letters written by Arlie Mays, the manager of its real estate department, to respondent's attorney, are not binding on this appellant. Miliato v. Jack Rabbit Candy Co., 54 S.W.2d 779; Union Savings Assn. v. Edwards, 47 Mo. 445; McCune v. McCune, 29 Mo. 120; Wood v. Carpenter, 166 Mo. 485; King v. Gilson, 191 Mo. 333; Schierbaum et al. v. Schemme, 157 Mo. 1. (3) There was no competent evidence to prove that the accident arose out of or in the course of the deceased's employment. The evidence went no further than to show that on the morning of the day of the accident deceased transacted some business for the assured. As to what he was doing or where he was going when the accident happened, there is no evidence whatever in the record. In addition to the fact that the commission had no jurisdiction, the award is for the right parties and should be sustained, because upon the record the respondent was not entitled to an award. De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 962; Smith v. Levis Zukoski Merc. Co., 14 S.W.2d 470; Jenczewski v. Aluminum Co. of America, 199 A.D. 156, 191 N.Y.S. 392; United States Fuel Co. v. Ind. Comm., 310 Ill. 85, 141 N.E. 401; Chicago Daily News Co. v. Ind. Comm., 306 Ill. 212, 137 N.E. 797. (4) The appellant General Accident Fire & Life Assurance Corporation is not in any event liable to the respondent. At the employer's request, coverage for the State of South Dakota was "entirely eliminated from the policy" by the endorsement attached thereto, which became effective coincident with the policy itself. The terms of said endorsement are plain and unambiguous, and should be enforced as written. State ex rel. v. Trimble, 297 Mo. 659; State ex rel. v. Ellison, 269 Mo. 420; Goedeke v. Zurich Gen. Acc. & Liab. Ins. Co., 7 S.W.2d 309; Employers' Liability Assur. Corp. v. Ind. Acc. Comm., 203 P. 95; Gunther v. Liverpool L. & G. Ins. Co., 34 F. 501; Morris & Co. v. Rhode Island Ins. Co., 181 Ill.App. 503; Skoczolis v. Vincour, 221 N.Y. 276, 116 N.E. 1004; In re Humphrey, 227 Mass. 166, 116 N.E. 412.

Francis McCurlee and Richard F. Moll for Lola M. Adams.

(1) Findings of fact of the commission are not conclusive on appeal if unsupported by sufficient competent evidence. If not supported by the competent evidence, the commission's findings and award should be reversed. R. S. 1929, sec. 3342; Doughton v. Marland Ref. Co., 331 Mo. 280, 53 S.W.2d 236; Sawtell v. Stern Bros. & Co., 226 Mo.App. 485 44 S.W.2d 264; Hassell v. Reineke Lbr. Co., 54 S.W.2d 758; Johnson v. Reed, 224 Mo.App. 1120. (2) Where the facts are undisputed the matter resolves itself into a question of law. The finding and award are directly opposed to all of the competent evidence in the record. Russell v. Ely & Walker, 332 Mo. 645, 60 S.W.2d 44; Hassell v. Reineke Lbr. Co., 54 S.W.2d 758; Morrison v. Terminal Railroad, 57 S.W.2d 775; Gillmore v. Ring Const. Co., 227 Mo.App. 1217, 61 S.W.2d 764. (a) There is little, if any, evidence in the record to indicate where the deceased's first contract of employment arose. However, there is an abundance of undisputed evidence in the record proving the existence of a new contract of employment, which was entered into in Missouri in the fall of 1931. This evidence is supported by the unexplained admissions of the Continental in its report of accident and answer to the claim for compensation filed herein. The contract of employment being a Missouri one, the commission had jurisdiction even though the accident occurred in South Dakota. R. S....