Daggett v. Kansas City Structural Steel Co.

• Citation: 65 S.W.2d 1036,334 Mo. 207
• Parties: In the Matter of Jewel McWhirter Daggett, Widow, and David Leigh Daggett, Minor Son, Dependents of Lester Daggett, Deceased, v. Kansas City Structural Steel Company, a Corporation, and Globe Indemnity Company, a Corporation, Appellants
• Decision Date: 06 December 1933
• Court: United States State Supreme Court of Missouri

65 S.W.2d 1036

334 Mo. 207

In the Matter of Jewel McWhirter Daggett, Widow, and David Leigh Daggett, Minor Son, Dependents of Lester Daggett, Deceased, v. Kansas City Structural Steel Company, a Corporation, and Globe Indemnity Company, a Corporation, Appellants

Supreme Court of Missouri

December 6, 1933

Appeal from Jackson Circuit Court; Hon. A. Stanford Lyon Judge.

Affirmed.

Lathrop Crane, Reynolds, Sawyer & Mersereau, John N. Monteith and Dean Wood for appellants.

(1) The court erred in finding that the Missouri Workmen's Compensation Commission, in making the award of compensation in this matter, did not act without or in excess of its powers, for the reason that the contract of employment was made in Kansas and the injury occurred in Kansas, so Section 3310(b), Revised Statutes 1929, does not apply. Section 3310(b), Revised Statutes 1929, does not apply, whether the contract be bilateral or unilateral. If the contract were bilateral, it could only have been made in Kansas, since Daggett never made any promise of acceptance in Missouri and the Kansas City Structural Steel Company telephoned from Kansas. 13 C. J., sec. 581, p. 582, note 65. The contract as a unilateral contract of employment contemplated not a promise of acceptance but acts of acceptance, and so it could only have been made in Kansas, where all acts of the parties in relation to the contract were performed. Fullington v Ozark Poultry Supply Co., 39 S.W.2d 780; Williams v Emerson-Brantingham Implement Co., 198 S.W. 425; Morris v. Donovan, 159 Mo.App. 401, 141 S.W. 428. Workmen's Compensation cases arising on similar facts support the view that this contract of employment was made in Kansas. Sabella v. Brazileiro, 91 A. 1032; In re Spencer Kellogg & Sons, 52 F.2d 129; Mitchell v. St. Louis Smelting & Refining Co., 202 Mo.App. 251, 215 S.W. 506. (2) The court erred in finding that there was sufficient competent evidence in the record to warrant the making of the award, for the reason that there was no substantial evidence in the record that the contract of employment was made in Missouri. McFarland v. Gillioz, 37 S.W.2d 911; Premier Const. Co. v. Grinstead, 170 N.E. 561; Sec. 3342, R. S. 1929; Barlow v. Shawnee Inv. Co., 48 S.W.2d 35. (3) The court erred in finding that the Missouri Workmen's Compensation Commission, in making the award of compensation, did not act without or in excess of its powers: for the reason that this employment is not within the purpose and meaning of the Missouri Workmen's Compensation Law, inasmuch as Lester Daggett was a nonresident of Missouri, his accident occurred in Kansas, his services were exclusively performed in Kansas, his employment was in furtherance of a strictly Kansas enterprise and not incidental to any Missouri enterprise of his employer, and his employer's plant and principal place of business were in Kansas. Secs. 3304(a), 3305(a), 3310(b), R. S. 1929; 3 A. L. R. 1357; Industrial Comm. of Ohio v. Gardinio, 164 N.E. 758; Watts v. Long, 218 N.W. 410, 59 A. L. R. 728; Guillod v. Light Co., 18 S.W.2d 100; Sec. 3299, R. S. 1929; Wandersee v. Moskewitz, 223 N.W. 837; DeMay v. Liberty Foundry Co., 37 S.W.2d 654; Platt v. Reynolds, 282 P. 264; Secs. 9465, 9521, 3 Burns' Anno. Indiana Stats., 1926; Premier Const. Co. v. Grinstead, 170 N.E. 561; Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571; New York Life Ins. Co. v. Head, 234 U.S. 149, 34 S.Ct. 879. (4) The court erred in finding that the Missouri Workmen's Compensation Commission, in making the award of compensation in this matter, did not act without or in excess of its powers, for the reason that the employer and the employee in this case, by operation of law, provided in the contract that the Kansas law should govern within the meaning of Section 3310(b), Revised Statutes 1929. Sec. 3310(b), R. S. 1929; Mitchell v. St. Louis Smelting & Refining Co., 202 Mo.App. 251, 215 S.W. 506; Logan v. Mo. Valley Bridge & Iron Co., 249 S.W. 21; Hall v. Cordell, 142 U.S. 116, 12 S.Ct. 154; Guillod v. Kansas City P. & L. Co., 18 S.W.2d 100; Watts v. Long, 218 N.W. 410, 59 A. L. R. 728; Johns-Manville v. Thrane, 141 N.E. 229; Leader Specialty Co. v. Chapman, 152 N.E. 872; Premier Const. Co. v. Grinstead, 170 N.E. 561; Industrial Comm. of Ohio v. Gardinio, 164 N.E. 758; Wandersee v. Moskewitz, 223 N.W. 837; DeMay v. Liberty Foundry, 37 S.W.2d 640. (5) The court erred in finding that the facts found by the Missouri Workmen's Compensation Commission in this matter support the award, for the reason that the facts found by the commission show in law that the Missouri Workmen's Compensation Act does not apply to the employment in the instant case. The court erred in finding that the Missouri Workmen's Compensation Commission, in making the award of compensation in this matter, did not act without or in excess of its powers, for the reason that the application of the Missouri Workmen's Compensation Act to this case necessarily involves an interpretation of such Missouri Act in violation of the "full faith and credit" clause, Article IV, Section 1, and of the "due process" clause, Amendment XIV, Section 1, of the United States Constitution. Bradford Elec. Light Co. v. Clapper, 286 U.S. 145, 52 S.Ct. 571; New York Life Ins. Co. v. Head, 234 U.S. 149, 34 S.Ct. 879; Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427.

Watson, Ess, Groner, Barnett & Whittaker for respondents.

(1) There is ample evidence in the record to support the finding of the commission that the contract of employment was made in Missouri. (a) The fact that part of the evidence might have been hearsay does not destroy the competency or weight of that evidence, because it went in without objection. Citizens Bank v. Hilkemeyer, 325 Mo. 849, 29 S.W.2d 1094; Minton v. Driemeier Storage & Moving Co., 223 Mo.App. 1124, 22 S.W.2d 63; Robertson v. Energy Const. Co., 294 S.W. 426. (b) The final assent to the offer conveyed by Baxter was given by Daggett in Missouri, thereby establishing this State as the place of contracting. Cardon v. Hampton, 109 So. 176; 13 C. J. 580, 581; Peak v. International Harvester Co., 194 Mo.App. 128; Crohn v. Travelers Assn., 170 Mo.App. 280; Illinois Fuel Co. v. Railroad, 319 Mo. 917; Wood v. Ins. Co., 24 S.W.2d 653; Liebing v. Ins. Co., 276 Mo. 134. (c) The finding of the commission stands as the verdict of a jury, and will not be disturbed on appeal where there is any evidence to support it. Jones v. Century Coal Co., 46 S.W.2d 198; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 604; State ex rel. v. Commission, 320 Mo. 893, 8 S.W.2d 897; Sec. 3342, R. S. 1929. (2) The commission was clothed by the express provisions of Section 3310(b) of the statute with full jurisdiction to make the award. (a) The Missouri Compensation Act is elective, and the right to compensation thereunder is a contract right, not a tort. State ex rel. Syrup Co. v. Commission, 320 Mo. 893, 8 S.W.2d 897; Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330; Warren v. Am. Car & Foundry Co., 327 Mo. 755, 38 S.W.2d 718; Oren v. Swift & Co., 51 S.W.2d 59; Hartman v. Light & Power Co., 52 S.W.2d 241. (b) The fact that the contract of employment was made in Missouri is the controlling fact, in view of the express provisions of Section 3310 (b) of the statute. Shout v. Gunite Concrete & Const. Co., 41 S.W.2d 629; See authorities under (a) supra. (c) The fact that the accident occurred in Kansas does not deprive the Missouri Commission of jurisdiction. By the terms of the statute, jurisdiction is extended to all injuries received outside of this State under contracts of employment made in this State. Hartman v. Light & Power Co., 53 S.W.2d 241; State ex rel. Syrup Co. v. Commission, 320 Mo. 893, 8 S.W.2d 897; Smith v. Van Noys Co., 262 S.W. 1048, 35 A. L. R. 1409; 3 A. L. R. 1351; 18 A. L. R. 292; 28 A. L. R. 1345; 35 A. L. R. 1414; 59 A. L. R. 735. (3) The construction placed upon the act by this court in the Hartman case and the Syrup Company case does not render the act unconstitutional within the meaning of the full faith and credit clause or the due process clause of the Federal Constitution. (a) The constitutional question now presented by appellants was not raised at the first opportunity and is not before this court for review. DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640; Hartzler v. Met. St. Ry. Co., 218 Mo. 564; Sutton v. Anderson, 326 Mo. 304, 31 S.W.2d 1036; Schildnecht v. Joplin, 327 Mo. 126, 35 S.W.2d 35; Schimmelpfenning v. Wells, 24 S.W.2d 161; Milling Co. v. Blake, 242 Mo. 23; George v. Railroad, 249 Mo. 197; Miller v. Connor, 250 Mo. 677. (b) The application of the act to Kansas injuries under Missouri contracts of employment does no violence to the Federal Constitution. Bradford Electric Co. v. Clapper, 286 U.S. 145.

OPINION

Frank, P. J.

Appeal from an order of the Circuit Court of Jackson County affirming an award of the Workmen's Compensation Commission. The award was in favor of Jewell McWhirter Daggett and David Leigh Daggett, widow and minor son of Lester Daggett, deceased. Daggett was in the employ of the Kansas City Structural Steel Company as a structural iron worker. He was killed in the course of his employment while assisting in the construction of what is known as the Tenth Street Viaduct in Kansas City, Kansas.

We adopt, in the main, respondents' statement of the facts. With some corrections and additions, the statement reads as follows:

The facts respecting the making of the contract of employment were presented to the commission by the testimony of various witnesses produced by respondents. Certain other facts were admitted by the parties. The appellants offered no evidence.

The record shows that Daggett was killed in the course of his employment as a structural iron worker for the...