Chubb v. Skelgas Co.

• Decision Date: 04 May 1940
• Docket Number: 36521
• Parties: Erna D. Chubb and Mary Lucile Chubb, Appellants, v. Skelgas Company, a Corporation, and United States Casualty Company, a Corporation
• Court: Missouri Supreme Court

139 S.W.2d 904

346 Mo. 22

Erna D. Chubb and Mary Lucile Chubb, Appellants, v. Skelgas Company, a Corporation, and United States Casualty Company, a Corporation

No. 36521

Supreme Court of Missouri

May 4, 1940

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Edgar J. Keating, Martin E. O'Leary, Fenton Hume and Walter A. Raymond for appellants.

(1) The issue of the jurisdiction of the Missouri Workmen's Compensation Commission is based almost entirely on respondents' evidence and is a question of law. Stepaneck v. Mark Twain Hotel, 104 S.W.2d 765; Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 915; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 134; Pruitt v. Harker, 328 Mo 1200, 43 S.W.2d 773; Brown v. Chicago, R. I. & P. Ry Co., 231 Mo.App. 126, 98 S.W.2d 131; Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 77. (2) The transfer of Mr. Chubb from Kansas City to Topeka did not break the continuity of his employment. (a) The change in said employee's work from retail store manager in Kansas City, Missouri to blockman in Topeka, Kansas, as a matter of law did not constitute a new contract of employment. (b) The last act giving validity to the employee's transfer to Topeka as a blockman took place in Missouri so the new arrangements were made in Missouri and Missouri law governs. Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W.2d 1039; Illinois Fuel Co. v. Mobile & O. Ry. Co., 319 Mo. 899, 8 S.W.2d 838; Restatement of the Law of Conflict of Laws, sec. 326; 13 C. J., p. 582, sec. 581; Colt Co. v. Gregor, 328 Mo. 1216, 44 S.W.2d 5. (3) The transfer of Mr. Chubb from Belleville, Illinois, to Elgin, Illinois, did not break the continuity of his employment. (a) The transfer of the employee, Mr. Chubb, from blockman at Belleville, Illinois to district salesman at Elgin, Illinois, was a mere promotion and not a discharge and rehiring. Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 82; Sims v. Truscon Steel Co., 126 S.W.2d 208. (b) The final act putting into effect Mr. Chubb's change of work in Illinois was the approval of employer's executives in Kansas City, Missouri. Missouri law, therefore, governs. Burton v. United States, 26 S.Ct. 688, 202 U.S. 381; Holder v. Aultman, 18 S.Ct. 269, 42 L.Ed. 669, 169 U.S. 91; Minor's Conflict of Laws, p. 377, sec. 159; Johnston v. Industrial Comm., 352 Ill. 74, 185 N.E. 192; Metropolitan Life Ins. Co. v. Cohen, 96 F.2d 68; Texas Employers' Ins. Assn. v. Volek, 44 S.W.2d 797; Travelers Insurance Co. v. Cason, 124 S.W.2d 321. (4) Mr. Chubb was continuously employed by Skelgas from February 11, 1931, to the time of his death. The original employment was a Missouri employment, which continued until the time of his death. Chalanda v. St. Louis Transit Co., 213 Mo. 244, 112 S.W. 252; Randolph v. Moberly Hunting & Fishing Club, 321 Mo. 995, 15 S.W.2d 840. (5) Under the evidence here, the parties intended the Missouri Workmen's Compensation Act to apply. That intention is conclusive as to the application of the Missouri Act. Bolin v. Swift & Co., 73 S.W.2d 777; Stansberry v. Monitor Stove Co., 150 Minn. 1, 183 N.W. 977; Krekelberg v. Floyd Co., 207 S.W. 194; Ben Wolf Trunk Lines v. Bailey, 1 N.E.2d 662; Cunningham v. Good Mfg. Co., 249 A.D. 898, 292 N.Y.S. 606; Flinn v. Remington Rand, 297 N.Y.S. 900; Penwell v. Anderson, 250 N.W. 666.

McVey & Randolph for respondents.

(1) The courts may not disturb a finding of fact made by the Workmen's Compensation Commission where such finding is based upon conflicting testimony or upon any substantial evidence. Sec. 3342, R. S. 1929; Sayles v. Kansas City Structural Steel Co., 128 S.W.2d 1050. (2) The burden was upon appellants to establish that at the time of the accident relied upon, deceased was working under a contract of employment made in Missouri. The holding of the commission that they failed to sustain that burden is supported by substantial evidence and reasonable inference flowing therefrom. Sec. 3310, R. S. 1929; Adams v. Continental Life Ins. Co., 101 S.W.2d 75. (3) There was substantial evidence that the Missouri Commission was without jurisdiction, because: (a) The deceased was discharged and his employment completely severed as of February 28, 1934, and he was later rehired in a different capacity by a new contract of employment made in Topeka, Kansas, on or about March 6, 1934. Adams v. Continental Life Ins. Co., 101 S.W.2d 75; Daggett v. Kansas City Structural Steel Co., 65 S.W. 1036; Globe Cotton Oil Mills et al. v. Industrial Acc. Comm., 221 P. 658; Pederson & Voechting et al. v. Kromrey, 231 N.W. 267. (b) A new contract of employment was made in Illinois in January, 1935, covering deceased's position as district manager for northeastern Illinois, which contract entirely abrogated and superseded his previous contract of employment, and which position was held by him at the time of the accident relied upon. 13 C. J., pp. 581, 595, 598, secs. 581, 615, 617; 39 C. J., p. 76, sec. 68; 3 Page on Contracts, p. 2073, sec. 1339; Herboth v. American, 145 Mo.App. 484, 123 S.W. 533; Bolin v. Swift & Co., 73 S.W.2d 774; Penwell v. Anderson, 250 N.W. 665; Stone v. Thomson Company, 124 Neb. 181; Sec. 3310, R. S. 1929; Daggett v. Kansas City Structural Steel Co., 65 S.W.2d 1040; Elsas v. Montgomery Elevator Co., 50 S.W.2d 133. (4) Under the terms of the contract of employment, the compensation laws of Illinois were made to apply to the exclusion of the compensation laws of Missouri, so that the Missouri Commission was deprived of jurisdiction as a matter of law. Sec. 3310, R. S. 1939; State ex rel. Weaver v. Mo. Workmen's Comp., 95 S.W.2d 641; Bradford Electric Light Co. v. Clapper, 286 U.S. 145; Pacific Employers Ins. Co. v. Industrial Acc. Comm., 59 S.Ct. 629; Johnson v. Industrial Comm. of Ohio, 186 N.E. 509; First Natl. Bank of St. Louis v. West End Bank, 129 S.W.2d 879; Tomnitz v. Employers Liability Ins. Corp., 121 S.W.2d 745; McClintock v. Skelly Oil Co., 114 S.W.2d 181; Morrison v. Terminal Ry. Assn., 57 S.W.2d 775.

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

OPINION

WESTHUES

Appellants, Erna D. Chubb and Mary Lucile Chubb widow and daughter respectively of Clark J. Chubb, deceased, filed a claim with the Missouri Compensation Commission to recover death benefits in the sum of $ 13,326. The defendants were Skelgas Company, a Corporation, employer of Chubb, and United States Casualty Company, a Corporation, insurer. The Compensation Commission made an award of no compensation solely on the ground that the commission did not have jurisdiction, because the injury, which allegedly caused Chubb's death, was received in the state of Illinois where Chubb was employed. The claimants contended that the Missouri Compensation Commission had jurisdiction because the contract of employment was executed in Missouri. The defendants' theory was that the contract of employment was not a Missouri contract. Claimants appealed from the order of the commission to the circuit court of Jackson county which affirmed the award of the commission. An appeal to this court followed.

The deceased, Chubb, was first employed by the Skelgas Company, on February 11, 1931, as a district manager, with headquarters at Topeka, Kansas. The contract of employment provided that the Missouri Compensation Law should govern. On February 16, 1932, another contract was signed and Chubb's duties were changed to those of business manager in a retail store of the Skelgas Company in Kansas City, Missouri. This contract likewise provided that the Missouri Compensation Law should govern. Chubb continued in this employment until March 1, 1934. Up to this time he had been paid a salary of $ 132.50 to $ 225 per month, plus various commissions on sales. We next find where Chubb was employed as blockman in a retail store dealing in Skelgas merchandise, operated by one Swift in Topeka, Kansas. In this position he received a salary from the retail store, also a salary of $ 50 per month from the Skelgas Company and commission on sales. A blockman was described as a salesman employed by a retail dealer in Skelgas goods. For the purpose of this case we will consider this last employment of Chubb at Topeka as a joint employment by the Skelgas Company and Swift. Later Chubb was employed at Waterloo, Illinois, also in the capacity of a blockman. He continued to receive commissions on sales from the Skelgas Company. In February, 1935, Chubb was placed in charge of the northeastern Illinois district as a district supervisor for the Skelgas Corporation. He received a monthly salary and commission on sales. The Skelgas Corporation was then his sole employer. The contract for this latter position did not refer to the Missouri Compensation Law. On January 28, 1936, Chubb was injured in a car accident. He died on March 2, 1936.

Appellants contend that Chubb's employment was continuous, hence the original contract of employment, providing that the Missouri Compensation Law should govern, was still in force at the time he was injured. The defendants, respondents here contend that Chubb's employment with the Skelgas Company was severed on February 28, 1934. Evidence was introduced that Chubb and his supervisor had had some difficulties and therefore the contract of employment was terminated. A number of witnesses so testified. D. R. Skinner at this time was district salesman for the Skelgas Company with headquarters at Topeka, Kansas. Skinner testified that Chubb came to him at Topeka sometime in March, 1934, and informed him that he had been discharged and was looking for employment. Skinner testified that he informed Chubb that a Mr. Swift was operating a retail store dealing in Skelgas products; that Mr. Swift had decided to take a...