Evans v. Farmers Mutual Hail Ins. Co.

• Decision Date: 07 February 1949
• Citation: 217 S.W.2d 705,240 Mo.App. 748
• Parties: Dale Evans, Employee, Appellant, v. Farmers Mutual Hail Insurance Company of Missouri and Farmers Hail Insurance Company, of Iowa, Employers, and Employers Mutual Liability Insurance Company and Employers Mutual Casualty Insurance Company, Insurers, Respondent
• Court: Kansas Court of Appeals

217 S.W.2d 705

240 Mo.App. 748

Dale Evans, Employee, Appellant, v. Farmers Mutual Hail Insurance Company of Missouri and Farmers Hail Insurance Company, of Iowa, Employers, and Employers Mutual Liability Insurance Company and Employers Mutual Casualty Insurance Company, Insurers, Respondent

Court of Appeals of Missouri, Kansas City

February 7, 1949

Delivered

Appeal from Circuit Court of Boone county; Hon. Wm. Dinwiddie Judge.

Reversed and remanded with directions.

Alexander, Ausmus & Harris and Warren D. Welliver for appellant.

(1) The court erred under the law and evidence in finding, adjudging and decreeing that the facts found by the Division of Workmen's Compensation, Department of Labor and Industrial Relations of Missouri did not support the award and that there was not sufficient evidence in the record to warrant the making of the award.

Employee was acting in the course of his employment with the Farmers Mutual Hail Insurance Company of Missouri when he sustained the accidental injury. Lee v. Oreon E. and R. G Scott, 96 S.W. 2d 652; Ellegood v. Brashear Freight Lines, 162 S.W. 2d 628. (2) The accident arose out of and in the course of his employment. Buckner v Quick, 118 S.W. 2d 100, 223 Mo.App. 273; Everand v. Women's Home Companion Reading Club, 122 S.W. 2d 51. (3) The Division of Workmen's Compensation, Department of Labor and Industrial Relations of Missouri had jurisdiction of the parties and the cause of the accident. Section 3700, R. S. Mo., 1939.

John E. Linster for respondents.

(1) The court properly found that under the law and evidence the facts found by the Division of Workmen's Compensation, Department of Labor and Industrial Relations of Missouri did not support the award and that there was not sufficient evidence in the record to warrant the making of the award, and correctly ordered and adjudged that the award of the Industrial Commission of Missouri be set aside. The appellant was at the time of his injury a "loaned employee" of the Farmers Mutual Hail Insurance Company of Iowa. Ellegood v. Brashear Freight Lines, Inc., 162 S.W. 2d 628; Lee v. Oreon E. & R. G. Scott, 96 S.W. 2d 652. (2) The accident did not arise out of and in the course of the appellant's employment. Smith et al. v. Seaman and Schuska Metal Works Co. et al., 127 S.W. 2d 435, 334 Mo. 559; Ricketts v. Story Laundry and Dry Cleaning Co. et al., 155 S.W. 2d, 536; Jakeway v. John V. Bauer Co., 218 N.Y.S. 193, 218 A.D. 302; Koss v. Hirschberg, Schutz and Co., 181 N.Y.S. 35, 191 A.D. 300; Turner v. Cathedral Pub. Co. Inc., et al., 278 N.Y.S. 229, 243 App.Div. 826; Gibbs Steel Co. et al. v. Industrial Commission, et al., 10 N.W.2d 130, 243 Wis. 375. (3) The referee improperly admitted in evidence the letter addressed to the Director of the Division of Workmen's Compensation. Wright v. Quattrocki, 49 S.W. 2d 3, 330 Mo. 173; Shelton v. Wolf Cheese Co., 93 S.W. 2d 947, 338 Mo. 1129; Fidelity and Casualty Co. v. Haines, 111 F. 337.

Boyer, C. Sperry, C., concurs.

OPINION

This is an appeal from a judgment of the circuit court of Boone County which set aside an award of the Industrial Commission of Missouri in favor of Dale Evans who had filed a claim for compensation before the Division of Workmen's Compensation, Department of Labor and Industrial Relations of Missouri. The claim lists both the Farmers Mutual Hail Insurance Company of Missouri, and Farmers Mutual Hail Insurance Company of Iowa, as employers, and also gives the name and address of their respective insurers. The date of the accident in which claimant was alleged to have sustained a broken leg was given as June 29, 1946, and the place of the accident as Avoca Hotel, Avoca, Iowa; and that the work employee was doing at the time was adjusting losses by hail upon growing crops. For brevity, appellant will hereafter be referred to as the employee, and the Farmers Mutual Hail Insurance Company of Missouri as the Missouri Company, and the Farmers Mutual Hail Insurance Company of Iowa as the Iowa Company.

The Missouri Company and its insurer for answer to the claim deny that the Division of Workmen's Compensation has jurisdiction of the claim, and allege that Dale Evans was an employee of the Iowa Company on the date of his alleged injury and was not an employee of the Missouri Company at said time, and they deny that the employee sustained an accident arising out of and in the course of his employment.

The answer of the Iowa Company and its insurer states that they appear specially, and in general states that the Division of Workmen's Compensation of the Industrial Commission of Missouri does not have jurisdiction of the parties or the cause of action set forth in the claim insofar as the allegations of the claim concern the Iowa Company and its insurer. Further answering, the Iowa Company and its insurer deny each and every allegation contained in the claim for compensation.

The claim was heard by a referee on June 16, 1947. It was admitted by both the Missouri and Iowa Companies that the claim was filed within the time prescribed by law; that no compensation had been paid and no medical aid furnished. It was granted by all parties that the Missouri Company and the Iowa Company are corporations and separate entities. It was admitted that the Missouri Company was a major employer operating under the provisions of the Missouri Workmen's Compensation Law, and that its liability was covered by its insurer. There was no such admission on the part of the Iowa Company.

The evidence at the hearing consisted of the testimony of Paul R. Rutledge, who was secretary of the Missouri Company; the testimony of Dale Evans, the employee, and certain exhibits. The following facts appear from the evidence. The Missouri Company is engaged in the business of insuring crops against loss by hail in the State of Missouri, and the Iowa Company is engaged in the same business in the State of Iowa. Long prior to June 1946, it had been the custom for companies engaged in the same business in other states, including the Iowa Company, to call upon the Missouri Company to send adjusters employed by the Missouri Company to their states to adjust losses for them when their work was unusually heavy, and the Missouri Company had men available. The practice in such case was for the Missouri Company to pay employees their regular wage, traveling and car expense, and the Missouri Company would bill the other company for the salary and expense and for an amount in excess of the actual cost to the Missouri Company, which resulted in a monetary profit to the Missouri Company. On June 29, 1946, and since 1936, employee had been in the general employment of the Missouri Company. On February 1, 1946, employee and the Missouri Company entered into a written contract of employment wherein he was appointed by the Missouri Company for one year as agent with authority to take applications, collect policy fees, accept money and receipt therefor, and to perform other tasks directed by the officers of the Missouri Company. The salary of employee was to be $ 210 a month, plus commission and necessary hotel and traveling expense. The use of an automobile and the upkeep thereof was also furnished by the Missouri Company.

C. P. Rutledge, a brother of Paul Rutledge, was president of the Iowa Company. Some time in June 1946, he called the secretary of the Missouri Company and requested him to send adjusters to Iowa to help adjust losses. Paul Rutledge called the employee and told him to finish his work in Missouri, and directed him to go to Iowa to help the Iowa Company adjust losses. Upon finishing his work in northern Missouri, the employee went to Iowa on June 27, 1946, and arrived at the town of Avoca that afternoon. He made contact with an adjuster for the Iowa Company and worked the rest of the day with him. He stayed at the Avoca Hotel that night. The next morning some of the men working for the Iowa Company gave him a list of losses to be adjusted and he worked on these claims all that day alone. That night he again stayed at the same hotel in Avoca, and the next morning he and other adjusters decided to leave the Avoca Hotel and go to Atlantic, Iowa, in order to procure better accommodations. Employee went back to the hotel to get his grip and to check out, intending to adjust losses that day between Avoca and Atlantic, and to stay at Atlantic that night. As he was leaving the hotel, carrying his grip and a small electric fan in a paper sack, his foot caught on a mat on the stairway and he either fell or sat down and broke his leg. In describing what happened, the employee stated that he did not fall, but turned around, sat down on the landing, and broke his leg. Later in his testimony he stated that his grip caught on the bannister post and his foot fastened under the step at the time he fell. He was taken to a hospital in Atlantic, and later to a hospital in St. Joseph, Missouri, where he received additional treatment. He was in the hospital eighteen days, and was away from work as a result of the accident until January 16, 1947, and he did not return to full time work until March 1, 1947.

In adjusting losses in Iowa, employee used the Iowa Company's proof of loss forms, but did not issue checks or drafts in payment of losses. All the losses worked on in Iowa were for people insured in the Iowa Company. No one directed him how to adjust losses or what to pay; all the directions he received were the slips furnished by someone connected with the Iowa Company which gave the location of the claims. He was permitted to select his own hotels and did not discuss with any one what the work was going to be the next day. The secretary of the Missouri Company had full supervision and control over employee and...