Carpenter v. William S. Lozier, Inc.

• Decision Date: 02 January 1945
• Docket Number: 39053
• Parties: Ethel Carpenter v. William S. Lozier, Inc., and W. S. Broderick and D. G. Gordon, a Partnership, d/b/a Joint Enterprise, Employer, and Employers Mutual Liability Insurance Company, Insurer, Appellants
• Court: Missouri Supreme Court

184 S.W.2d 999

353 Mo. 864

Ethel Carpenter v. William S. Lozier, Inc., and W. S. Broderick and D. G. Gordon, a Partnership, d/b/a Joint Enterprise, Employer, and Employers Mutual Liability Insurance Company, Insurer, Appellants

No. 39053

Supreme Court of Missouri

January 2, 1945

Rehearing Denied February 5, 1945.

Appeal from Jackson Circuit Court; Hon. Emory H. Wright Judge.

Reversed and remanded (with directions).

Leo T. Schwartz for appellants; Thomas E. Hudson and R. S. McKenzie of counsel.

(1) The findings and award of the Commission, when supported by competent evidence, are conclusive on appeal, and in determining the sufficiency of the evidence, the court considers the evidence most favorable to the award together with all reasonable and favorable inferences and disregards any evidence conflicting therewith. Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046; Edwards v. Al Fresco Advertising Co., 340 Mo. 342 100 S.W.2d 513; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Doughton v. Marland Refining Co., 53 S.W.2d 236, 331 Mo. 280. (2) The foregoing rule is applied in cases involving employment contracts and the place of contract. Deister v. Thompson, 352 Mo. 871, 180 S.W.2d 15; Chubb v. Skelgas Co., 139 S.W.2d 904, 346 Mo. 22; Adams v. Continental Life Ins. Co., 101 S.W.2d 75, 340 Mo. 417. (3) Under facts strikingly similar to this case, the courts hold the evidence is sufficient to support the award. Deister v. Thompson, 352 Mo. 871, 180 S.W.2d 15; Hunt v. Jeffries, 156 S.W.2d 23; Anschutz v. Phillips Petroleum Co., 142 S.W.2d 110; Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 75; Chubb v. Skelgas Co., 346 Mo. 22, 139 S.W.2d 904. (4) Where, as here, the evidence is conflicting and different inferences may reasonably be drawn therefrom, the findings of fact of the commission were conclusive on the circuit court and the circuit court erred in ruling to the contrary. State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1008; State ex rel. Probst v. Haid, 333 Mo. 390, 62 S.W.2d 869; Ulman v. Chevrolet-St. Louis Division of G.M. Corp., 349 Mo. 906, 163 S.W.2d 778. (5) The state in which occurs the final act making the contract is the place of contract. Under the facts and the applicable authorities, the contract of hire was made in Kansas, and the circuit court erred in holding that the employment contract was made in Missouri. Illinois Fuel Co. v. Mobile & O.R. Co., 319 Mo. 899, 8 S.W.2d 834; Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 75; Deister v. Thompson, 180 S.W.2d 15. (6) Under Section 3700, R.S. 1939, and Section 290, Title 40, United States Code Annotated, the Kansas Compensation Act exclusively governed the respondent's claim for compensation and the circuit court erred in ruling that the Missouri act applied. Sec. 3700, R.S. 1939; Sec. 290, Title 40, U.S.C.A.; Mulcahy v. Terminal Railroad Assn., 346 Mo. 65, 139 S.W.2d 939; Riley v. Wabash Ry. Co., 328 Mo. 910, 44 S.W.2d 136; Carter v. St. Louis, T. & E. Ry. Co., 307 Mo. 595, 271 S.W. 358; Winterbottom v. Kurn, 141 S.W.2d 93; Pfister v. Badgett Const. Co., 65 S.W.2d 137; State ex rel. Kansas City Bridge Co. v. Missouri Commission, 81 S.W.2d 986, affirmed 92 S.W.2d 624; Murray v. Joe Garrick & Co., 291 U.S. 315, 54 S.Ct. 432, 78 L.Ed. 821; Art. I, Sec. 8, Pars. 17, 18, U.S. Const.; Surplus Trading Co. v. Cook, Sheriff, 281 U.S. 647, 50 S.Ct. 455, 74 L.Ed. 1091; Standard Oil Co. v. People, 291 U.S. 242, 54 S.Ct. 381, 78 L.Ed. 775; Chicago, R.I. & P. Ry. Co. v. McGlinn, 114 U.S. 542, 58 S.Ct. 1005, 39 L.Ed. 270; Young v. Tarlton, Contractor, 204 Ark. 283, 162 S.W.2d 477; Capetola v. Barclay White Co., 139 F.2d 556, 48 F.Supp. 797; State ex rel. Brewen-Clark Syrup Co. v. Commission, 320 Mo. 893, 8 S.W.2d 897; Ottinger Brothers v. Clark, 131 P.2d 94; Chap. 44, Art. 5, Sec. 1, Gen. Stat. of Kan., 1935; Mitchell v. J.A. Tobin Const. Co., 159 S.W.2d 709, 236 Mo.App. 910.

Borders, Reinhardt, Margolin & Wimmell for respondent.

(1) The finding of the Commission "that the contract of employment was made in the State of Kansas" was not binding upon the circuit court. Illinois Fuel Co. v. Mobile & O.R. Co., 319 Mo. 899, 8 S.W.2d 834; Vaseleou v. St. Louis Realty & Securities Co., 344 Mo. 1121, 130 S.W.2d 538; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909; Deister v. Thompson, 180 S.W.2d 15; Sec. 3764, R.S. 1939; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Decker v. Raymond Concrete Pile Co., 336 Mo. 1116, 82 S.W.2d 267; Bullock v. Potashnick, 162 S.W.2d 607; Hughes v. Maryland Casualty Co., 229 Mo.App. 472, 76 S.W.2d 1101. (2) Under the law, as applied to undisputed facts in this case, the contract of employment was made in Missouri. Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W.2d 1036; Deister v. Thompson, 180 S.W.2d 15, 352 Mo. 871; Overcash v. Yellow Transit Co., 352 Mo. 993, 180 S.W.2d 678; Restatement of Law of Contracts, sec. 74; Missouri Annotations, Restatement of the Law of Contracts, p. 30; Sims v. Truscon Steel Co., 343 Mo. 1216, 126 S.W.2d 204. (3) There was no substantial evidence that the contract was made in Kansas. Aiple-Hammelmann Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S.W. 480; State v. Edwards, 345 Mo. 929, 137 S.W.2d 447; Peters v. Carroll, 153 Mo.App. 375, 134 S.W. 49. (4) The agreement between the appellants and unions that the Kansas Compensation Act should not apply was made for the benefit of union members and entitles claimant to recover under the Missouri act. 95 A.L.R. 41; McCoy v. St. Joseph Belt Ry. Co., 77 S.W.2d 175; Noles v. Terminal Railroad Assn., 154 S.W.2d 606; Sparks v. Thompson, 161 S.W.2d 977; McGee v. St. Joseph Belt Ry. Co., 110 S.W.2d 389. (5) Neither Sec. 3700, R.S. 1939, nor Sec. 290, Title 40, U.S.C.A., excludes the application of the Missouri Compensation Act. Shout v. Construction Co., 41 S.W.2d 629; Knupp v. Truck Service, 135 S.W.2d 1084; State ex rel. Brewen-Clark Syrup Co. v. Commission, 320 Mo. 893, 8 S.W.2d 897; Travelers Ins. Co. v. Cardillo, 141 F.2d 362; Alexander v. Movietonenews, 248 A.D. 653, 283 N.Y.S. 768, 273 N.Y. 511, 6 N.E.2d 599, 7 N.E.2d 712; Alaska Packers Assn. v. Industrial Accident Comm., 294 U.S. 532, 79 L.Ed. 1044; Steinmetz v. Sneed & Co., 9 A.2d 801; Hopkins v. Matchless Metal Polish Co., 121 A. 828, 99 Conn. 457; Norwich Union Indemnity Co. v. Wilson, 17 S.W.2d 68; Hall v. Industrial Comm., 235 P. 1073; Waiderhoff v. Neal, 6 F.Supp. 798.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

This case originated with the Workmen's Compensation Commission. The Commission denied compensation on the theory that it did not have jurisdiction. On appeal to the circuit court the award of no compensation was set aside and the defendant appealed to this court.

The claimant, Ethel Carpenter, asked for compensation because of the death of her husband, Reese W. Carpenter, who was killed while at work for the defendants at the Sunflower Ordnance Plant, near Eudora, Kansas. The amount involved vests this court with appellate jurisdiction. The defendants are William S. Lozier, Inc.; W. S. Broderick and D. G. Gordon, a partnership, employer, and Employers Mutual Liability Insurance Company, insurer. The accident causing Carpenter's death occurred July 24, 1942, in the state of Kansas. The Compensation Commission held it was without jurisdiction because the contract of employment was also made in Kansas. See sec. 3700, R.S. Mo., 1939, Mo. R.S.A. The circuit court in its judgment ruled, ". . . that, as a matter of law, the contract of employment, under undisputed facts, was made in Missouri." The employers in this case contracted to construct an ordnance plant for the United States Government near Eudora, Kansas. Before construction was commenced representatives of the employers met with representatives of certain union labor organizations in Kansas City, Missouri. It was agreed that only union men were to be employed. Working conditions, working hours per day and the rate of pay were also agreed upon. It was further agreed that when the employers were in need of men they would send a requisition for workers for the various crafts, stating the hour the men were to report for work, to the United States Employment Office in Kansas City, Missouri. This office in turn would convey the information contained in the requisition to the proper local union or its business agent. The local would secure the necessary number and kind of workers desired. These men were then provided with cards or slips showing name, address, social security number etc., which they would take to the United States Employment Office in Kansas City, Missouri, where a form was filled out with certain information and also with the information which appeared on the slip furnished by the union. The men would then take the form given them by the United States Employment Service to the personnel office of the employer at the Sunflower Plant in Kansas. At that office there was a complete check as to the information contained on the form and a comparison of this information with the requisition issued by the employer. The applicants were required to sign an affidavit at the personnel office that they did not belong to any organization advocating the overthrow of our form of government; that they were citizens of the United States and that all answers to questions on the form furnished by the employment service had been truthfully answered. Anyone refusing to sign the affidavit was rejected. A witness for claimant, named Eslinger, a representative of a union, testified that the employer had the right to reject a man who was physically handicapped or who refused to sign the affidavit. It was also shown that anyone who had previously worked at...