Deister v. Thompson

• Decision Date: 03 April 1944
• Docket Number: 38840
• Parties: Madge A. Deister, Appellant, v. J. J. Thompson and Glenn Thompson, doing business as J. J. Thompson & Son, and Lumberman's Mutual Casualty Company
• Court: Missouri Supreme Court

180 S.W.2d 15

352 Mo. 871

Madge A. Deister, Appellant, v. J. J. Thompson and Glenn Thompson, doing business as J. J. Thompson & Son, and Lumberman's Mutual Casualty Company

No. 38840

Supreme Court of Missouri

April 3, 1944

Rehearing Denied May 2, 1944.

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

Affirmed.

Jay B Wilson, Philip J. Close, Hook & Thomas, and Inghram D. Hook for appellant.

The employee's contract of employment was a Missouri contract made and entered into in the State of Missouri. Daggett v. K.C. Struct. Steel Co., 65 S.W.2d 1036, 334 Mo. 207; Sims v. Truscon Steel Co., 126 S.W.2d 204, 343 Mo. 1216.

Paul C. Sprinkle, William F. Knowles, and Sprinkle & Knowles for respondents.

The contract of employment was made within the State of Kansas. Sec. 3700 (b), R.S. 1939; Daggett v. K.C. Struct. Steel Co., 65 S.W.2d 1036, 334 Mo. 207; Toon v. Evans Coffee Co., 103 S.W.2d 533, 537; Yeats v. Dodson, 127 S.W.2d 652, 345 Mo. 196; Kelsall v. Riss & Co., 165 S.W.2d 329.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

PER CURIAM

This is a Workmen's Compensation case. Claimant, appellant here, sought compensation for the death of her husband, Leonard H. Deister, an employee of J. J. Thompson & Son. The Lumberman's Mutual Casualty Company was the insurer. A referee allowed the claim for $ 12,430, plus a burial allowance. Appeal was taken to the Commission and the Commission found "that the contract of employment was not made in Missouri"; that the accident occurred in the State of Kansas, and that the Commission, therefore, was without jurisdiction, and compensation was denied. Claimant appealed to the circuit court from the order of the Commission denying compensation. The circuit court affirmed the order of the Commission, not upon the ground stated by the Commission, but upon the ground that the employer had never done business in Missouri; had never qualified to do business in Missouri, and that such being so, the Missouri Workmen's Compensation Act was not applicable. Claimant again appealed.

Respondents, employer and insurer, contend that claimant is not entitled to compensation under the Missouri Workmen's Compensation Act, and base their contention on four grounds: (1) That the contract of employment was not made in Missouri and the accident occurred in Kansas; (2) that the annual earnings of the deceased were in excess of $ 3600; (3) that under a federal statute (40 U.S.C.A., Sec. 290) the Workmen's Compensation Act of Kansas governed; and (4) that the employer was not and had not been operating, that is, doing business in Missouri, and therefore, was not subject to the Missouri Act.

The employer resided in Oklahoma City, Oklahoma, and had a government contract for the construction of a Naval Air Base at Gardner, Kansas. The deceased was employed to work on this job, and while at work, operating a scoop or scraper machine, on May 2, 1942, was struck by lightning and killed. It is conceded that the accident occurred in Kansas, but claimant says that the contract of employment was made in Missouri, and if so, claimant can recover [Sec. 3700 R.S. 1939, Mo. R.S.A., Sec. 3700] unless denied compensation because of grounds 2, 3, and 4 above, or one of them.

Was the contract of employment made in Missouri? The Commission found that it was not, but claimant contends that there was no substantial evidence to support such finding. Deceased resided at Parkville, Missouri, and was a member of local No. 101, hoisting engineers union, Kansas City, Missouri. Elmer Foster was steward of the union on the air base job and was also employed on the job by the employer. Asked the duties of a steward, Foster said: "Well, when the contractor wants men, he tells the steward, and the steward calls the Labor Temple (Kansas City, Mo.) and orders the men out." No men, for the type of work deceased was doing, were hired on the job except through local No. 101.

Foster further testified: "Pallesen, the employer's superintendent, in January, 1942, requested me to get some men, and when I got off my shift, I got in touch with Lane (business agent of the union) at the Labor Temple; I went to the Labor Temple, and told Lane that we wanted some men at the Gardner Air Base. We looked at some books upon which the names of idle men are kept and then I asked him about Deister (deceased) going to work, and he said it was perfectly all right (Foster had known Deister several years). He (Lane) then picked up a phone and called Deister at Parkville; asked him if he wanted to go to work and Deister said he did. Lane told Deister to report at the Labor Temple. Deister came to the Labor Temple and was sent to the employment office, Kansas City, Kansas, and was told to see a man named Edwards. Lane called Edwards and told him, 'I am sending Leonard Deister over. Give him a card.' So Deister went over there and got fixed up at the employment office. When Lane got through talking with Deister he said to me, 'All right. Leonard Deister is going out there. It is perfectly all right. Leonard can go out and go to work. He is going to work.' I saw Deister that night when he came to work. The cards obtained at the employment office are turned over to the contractor" (employer).

Lane testified: "I am business representative of the union, and have offices at the Labor Temple, Kansas City, Mo. Shortly after J. J. Thompson & Son procured the contract for the construction of the Gardner Naval Air Base they contacted me with reference to supplying them men from the union for grading work. We had no signed contract with J. J. Thompson & Son, but the men we sent got show up time, that is, if a man showed up for work and did not work because of weather conditions, etc., he got pay for two hours, if on day shift, or pay for four hours, if on night shift. I do not recall talking personally to Deister, but I sent him out there. I remember Elmer Foster calling me about Deister. If he (Foster) gets any advance information on them (employer) wanting some men, he usually calls us, and sometimes he would ask for a certain person, like he did when he asked if I would put Leonard Deister to work, and I told him the first chance I had, I would put him to work. I contacted Deister; called by telephone at Parkville. Mr. Pallesen called me for a scoop operator, and then I contacted Mr. Deister and told him to come over to the office of Labor Temple (in Kansas City, Mo.) and then I sent him to the employment office over in Kansas City, Kansas, and he went out to the job and went to work. I told him to go to the employment office and then report out at Gardner to Mr. Pallesen, and he signified that he would. The employment office issued to the men we sent what is known as a 320 card, that is, an identification and qualification card. The only thing required by the employment office is the social security number. In January and February, 1942 (Deister was employed in January, 1942), a man had to have the 320 card to be admitted to the premises of the Gardner Naval Air Base. I don't think that J. J. Thompson & Son ever rejected any one that I sent out; I don't recall. I reached an oral understanding with Mr. Pallesen (employer's superintendent) that all the hoisting engineers on this job would be supplied through the union. The last time I saw Deister, he left my office and signified he was going over there (to the job) and go to work."

On cross examination Lane testified: "Deister went to the employment office in Kansas City, Kansas; got the 320 card. The card had on it, 'Leonard Deister, scoop operator', I imagine (Deister's card was not in evidence). I have seen those blank cards. It had a place on there to reject. There was printed on the face of the 320 card a place for the contractor to state whether or not he had accepted or rejected the man. There was no rejections from J. J. Thompson & Son on the men I sent out there. Q. (By Mr. Sprinkle): As I understand it, there is no question in your testimony but that Thompson (employer) had the right to accept or reject those men when they came out there with the card, and they sent it back showing they did one or the other? A. That is right, but they never did. Q. They had the right to? A. They had the right to."

A. W Pallesen, as a...