Bolin v. Swift & Co.

• Decision Date: 17 July 1934
• Docket Number: 32807
• Citation: 73 S.W.2d 774,335 Mo. 732
• Parties: Sylvia Ruth Bolin v. Swift & Company, a Corporation, Employer, Security Mutual Casualty Company, a Corporation, Insurer, Appellants
• Court: Missouri Supreme Court

73 S.W.2d 774

335 Mo. 732

Sylvia Ruth Bolin v. Swift & Company, a Corporation, Employer, Security Mutual Casualty Company, a Corporation, Insurer, Appellants

No. 32807

Supreme Court of Missouri

July 17, 1934

Motion for Rehearing Overruled July 17, 1934.

Appeal from Buchanan Circuit Court.

Affirmed.

Brown Douglas & Brown for appellants.

(1) Appellants were entitled to remove the cause from the Circuit Court of Buchanan County, Missouri, to the District Court of the United States for the St. Joseph Division of the Western District of Missouri, in view of the fact that the amount involved in controversy was in excess of three thousand dollars, exclusive of interest and costs, with appellants nonresident Illinois corporations, and respondent a citizen of the State of Missouri. Mobile & Ohio Railroad Co. v Industrial Comm. of Ill., 28 F.2d 228; U.S. Smelting & Refining Co. v. Evans, 35 F.2d 459; Hicks v Georgia Cas. Co., 63 F.2d 157; Reid v. Maryland Cas. Co., 63 F.2d 10; Maryland Cas. Co. v. Kramer, 62 F.2d 295; Am. Fid. & Casualty Co. v. Fentress, 61 F.2d 999; So. Casualty Co. v. Posey, 47 F.2d 1074; Ocean Acc. & Guaranty Corp. v. Turner, 55 F.2d 654; Maryland Cas. Co. v. Latham, 41 F.2d 312; Watson v. Employers' Liability Assur. Corp., 23 F.2d 682; Kansas City Fibre Box Co. v. Connell, 5 F.2d 398; Warlop v. Coal & Mining Co., 24 F.2d 926; Terral v. Burke Const. Co., 257 U.S. 529, 66 L.Ed. 352; Rhodes v. N. Y. Life Ins. Co., 148 S.E. 439. (2) The death of William M. Bolin, respondent's deceased husband, did not result by accident arising out of and in the course of his employment. (3) It is not the intent of the Missouri Workmen's Compensation Act, and was not the intent when the Legislature framed it, that its provisions should apply to operations carried on in a foreign state by a resident and citizen of that state. DeMay v. Liberty Foundry Co., 37 S.W.2d 640; Secs. 3300, 3304, 3305, 3310(b), R. S. 1929; N. Y. Cent. Railroad Co. v. White, 243 U.S. 188, 61 L.Ed. 666; Hartman v. Union Elec. L. & P. Co., 53 S.W.2d 241; Liggett & Myers Tobacco Co. v. Goslin, 160 A. 804; Val Blatz Brewing Co. v. Gerard, 230 N.W. 622; Interstate Power Co. v. Industrial Comm. of Wis., 234 N.W. 889; Wandersee v. Moskewitz, 223 N.W. 837; Tripp v. Industrial Comm. of Colo., 4 P.2d 917; Platt, Inc., v. Reynolds, 282 P. 264; Freeman v. Higgins, 242 N.W. 271; Watts v. Long, 218 N.W. 410; Durrett v. Lumber Co., 140 So. 867; Johns-Manville v. Thraine, 141 N.E. 229; Premier Const. Co. v. Grinstead, 170 N.E. 561. (4) The parties to the contract under consideration agreed that as to injuries received in the State of Iowa the Workmen's Compensation Law of the State of Iowa, and not that of the State of Missouri, should apply. Sec. 3310(b), R. S. 1929; Secs. 807, 823(a), 823(b), Compiled Code of Iowa for 1929; Am. Radiator Co. v. Rogge, 92 A. 85; Douthwright v. Champlin, 100 A. 97; Mitchell v. Smelting & Refining Co., 215 S.W. 506; Shout v. Gunite Concrete & Const. Co., 41 S.W.2d 629. (5) The State of Missouri and the courts thereof are without jurisdiction over a citizen of the State of Iowa, resident there, and without power or jurisdiction, therefore, to apply the Missouri Workmen's Compensation Act to operations carried on by him there. Mitchell v. Smelting & Refining Co., 215 S.W. 506; Liggett & Myers Tobacco Co. v. Goslin, 160 A. 804.

Randolph & Randolph for respondent.

(1) This case having reached the circuit court by an appeal taken by appellants from the award of the Missouri Workmen's Compensation Commission, it is not such an action as can be removed to the Federal Court. Elsas v. Montgomery Elev. Co., 38 F.2d 303; McFall v. Barton-Mansfield Co., 61 S.W.2d 912. (2) The Missouri Workmen's Compensation Act by its terms is given extraterritorial effect where the contract of employment is made in this State, and the contract of employment between Swift & Company and William M. Bolin, deceased, having been made in St. Joseph, Missouri, for him to work for the St. Joseph, Missouri, plant, the Missouri Workmen's Compensation Act, therefore, has jurisdiction over this claim. Sec. 3310(b), R. S. 1929; State ex rel. Brewen-Clark Syrup Co. v. Workmen's Compensation Comm., 8 S.W.2d 897; Wadley v. Employers' Liability Assur. Corp., 37 S.W.2d 665; Shout v. Grunite Construction Co., 41 S.W.2d 629; Hartman v. Electric L. & P. Co., 53 S.W.2d 241; Zarnacke v. Blue Line Chemical Co., 54 S.W.2d 772; Muse v. Whitney & Son, 56 S.W.2d 848.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This case, coming recently to the writer, is an appeal by an employer and its insurer from an order of the Circuit Court of Buchanan County affirming an award of the Workmen's Compensation Commission. The award was made for the death of William M. Bolin, an employee of Swift & Company, to his widow until prior death or remarriage, then the unpaid remainder to his two children, four and fifteen years of age. The award was for a total of $ 7796, being $ 150 burial expenses and $ 20 per week for 382.3 weeks.

Claimant's evidence was to the effect that Bolin was employed by Swift & Company at St. Joseph, Missouri, as a traveling salesman in December, 1923; that he had previously worked for Swift & Company, but had for a year prior to his last employment been working for Sinclair Oil Company at Norton, Kansas. He had come to St. Joseph with his family for the Christmas holidays at the time he entered into his contract of employment, which was a verbal contract. St. Joseph was his wife's former home but it is not definitely shown whether he had previously lived there. For the first week of his employment, Bolin remained in the St. Joseph plant of Swift & Company to familiarize himself with their products which he was to sell to merchants. In the latter part of December, 1923, he went with his family to Centerville, Iowa, which was centrally located in the territory he was to travel over, and continuously lived there until his death on March 7, 1932. He paid poll taxes there and voted there. Bolin's letters of instruction, and correspondence about his territory, came from the St. Joseph office of Swift & Company. He made his reports there and sent his remittances, for collections from his territory, there. His accounts were kept there. His pay checks came from the St. Joseph office. He was called to sales meetings in St. Joseph. Goods and samples were shipped to him from St. Joseph. Swift & Company also had a produce plant at Centerville, Iowa. When Bolin sold produce in his territory, it was shipped to his customers from this Centerville plant. Orders for other merchandise, which he sold in his territory, were filled and shipped to his customers from the St. Joseph plant. Bolin's territory was partly in Iowa and partly in Missouri. He was furnished a Chevrolet coupe by Swift & Company to make his trips. He kept this car in a small garage at his residence in Centerville. Twice a week he made trips into Missouri. One of these trips was to the towns of Unionville, Lemon, Poling and Mendota. The other Missouri trip was to Downing, Lancaster, Glenwood and Memphis.

On the morning of March 7, 1932, Bolin got up about six o'clock, fixed the fire in the furnace at his residence, and went out to the garage. It was a cold, blustery, windy morning. Sometime later his wife saw smoke coming through the closed garage doors, went there, and found him dead from carbon monoxide poisoning. The motor of the car was still running and, according to claimant's testimony, he was lying on the opposite side of the car, from that upon which the exhaust pipe was located, with his face toward the door. There was evidence that the garage doors blew shut easily and there was also evidence that they dragged on the ground so that it was difficult to shut them. Appellants had evidence that there was a shortage of $ 1173.14 in Bolin's accounts and that another salesman from Swift & Company was in Centerville that morning to go over his territory with him. Claimant said that Bolin often carried his customer's accounts when they could not pay; that he was optomistic about conditions; that there had been no change in his actions, attitude or manner; and that he told her, when he left, to arrange to have the visiting salesman to dinner the next evening. Appellants also had evidence that it would take from one-half hour to one hour to cause death from carbon monoxide poisoning from the ordinary idling of an automobile engine in a small garage. It was admitted, however, that the time would be less if the engine was running faster.

The defenses made by appellants were that Bolin came to his death by suicide instead of by an accident arising out of and in the course of his employment; and that if his death was due to an accident the Compensation Act of the State of Iowa would apply instead of the Missouri Act. The commission found that both the employer and the employee had accepted the Missouri Act; "that William M. Bolin, deceased, was on March 7, 1932, fatally injured by accident arising out of and in the course of his employment with Swift & Company; that deceased's contract of employment with Swift & Company was made in St. Joseph, Missouri; that he was employed as a traveling salesman and that a part of his territory lay in Iowa and a part in Missouri." The commission ruled "that since his contract of employment was made in Missouri this Commission has jurisdiction to hear this claim and award compensation to the dependents of deceased."

Appellants thereafter applied for review and upon hearing before the full commission the award was affirmed. Appellants then appealed to the circuit court which likewise affirmed the award. After the proceeding was lodged in the circuit court by appeal appellants filed petition for...