Hall v. Denver-Chicago Intern., Inc.

• Decision Date: 05 June 1972
• Docket Number: DENVER-CHICAGO,No. 25672,25672
• Citation: 481 S.W.2d 622
• Parties: Louis A. HALL, Deceased, et al., Respondents, v.INTERNATIONAL, INC., et al. and Liberty Mutual InsuranceCompany, Appellants.
• Court: Missouri Court of Appeals

Page 622

481 S.W.2d 622

Louis A. HALL, Deceased, et al., Respondents, v. DENVER-CHICAGO INTERNATIONAL, INC., et al. and Liberty Mutual InsuranceCompany, Appellants.

No. 25672.

Missouri Court of Appeals, Kansas City District.

June 5, 1972.

A Warren Francis, Lloyd A. Hamrick, Roger J. Staab, Kansas City, for appellants.

Robert E. Stewart, Kansas City, for respondents.

TIMOTHY D. O'LEARY, Special Judge.

Plaintiff-Claimant, Louis A. Hall, died from an unrelated accident after filing his claim for Workmen's Compensation and his widow and children were substituted as parties claimant prior to the hearing before the Referee.

The Referee, after hearing the evidence, denied compensation on the basis that the claimant was employed in California and injured in New Jersey and therefore Missouri had no jurisdiction. The Industrial Commission affirmed the Referee's award and made a Final Award denying compensation. Claimant appealed and the circuit court reversed the Industrial Commission on the basis that there was not substantial competent evidence in the record to warrant the denial of compensation because of lack of jurisdiction and remanded the case to the Industrial Commission for further proceedings.

On appeal defendant-employer and insurer contend that the circuit court erred in reversing the Industrial Commission for the reason that the Commission's findings were supported by substantial and competent evidence and are not contrary to the overwhelming weight of the evidence.

We set out the evidence necessary for a consideration of the issue presented.

Louis Hall was injured in New Jersey on January 19, 1968, as a result of a fall while working for the Appellant-Employer, Denver-Chicago International, Inc., (hereinafter referred to as Employer). At the hearing before the Referee the Employer admitted that claimant was an employee, that they had notice of the injury, that the claim was timely filed, and that plaintiff sustained an injury, but based its defense on the sole issue that Missouri had no jurisdiction of the case because plaintiff contracted for employment in California and was injured in New Jersey.

At the hearing plaintiff offered the deposition testimony of Mr. Carlson, a co-employee, who testified that he was presently employed and had been for 12 years as an over-the-road truck driver, which is the same capacity in which the claimant was employed.

Mr. Carlson testified that the Employer is a national truck line with three terminals in the United States which are located in Chicago, Kansas City and Los Angeles. He stated that when an employee is originally hired at one of the three terminals he must fill out an application for employment and that when an employee is transferred to another terminal he does not fill out any additional employment application. Mr. Carlson stated that transfers from one terminal to another are a common occurrence with this employer and other employers in this particular business; that an employee never knows when he is going to be transferred from one terminal to another, and if the employee refuses to accept the transfer then he loses his job.

He indicated that the normal and customary practice for this employer, as well as other employers in this business, in transferring employees from one terminal to another is for the employer to put a notice up on the bulletin board advising of available transfers to a particular terminal. If the employee decides to accept a transfer the only procedure involved is for the employee to register or 'sign in' when he gets to the new terminal. For example, if an employee is transferred from Los Angeles to Kansas City he registers when he gets to the Kansas City terminal in the same manner as he does when he brings in a load. From that time on the employee receives his assignments at that particular terminal and uses it as his base of operations.

Mr. Carlson further advised that when an employee accepts a transfer from one terminal to another the employer pays a stipulated sum for mileage involved in the transfer as well as a stipulated sum for the wife and each child. The allowance and mileage is to be paid at the new terminal when the employee arrives there.

Claimant's wife testified that her deceased husband was employed by this employer in California sometime prior to the year 1963 as an over-the-road truck driver and was still working for them when he was transferred from California to the Kansas City terminal in 1966. The family then moved to the Kansas City area to live. After this accident in August of 1968 claimant was transferred back to the Los Angeles terminal. Mrs. Hall advised that when the family moved from Los Angeles to Kansas City her husband changed his membership from the union local in California to the union Local 41 in Kansas City.

The only other evidence offered by the claimant was the introduction of a Teamster's Union Contract that was executed effective April 1, 1967, while claimant was a member of Local 41 in Kansas City, Missouri, and a resident of Kansas City.

The employer offered evidence which tended to prove that when an employee is transferred he retains his seniority with the company and that he does not fill out a new application for employment or take a new pre-employment physical examination when transferred from one terminal to the other.

It having been admitted that the accident and injury in question occurred outside the State of Missouri and that plaintiff was employed in the State of California the only issue before the Industrial Commission was whether a new contract of employment was entered into in Missouri when the employee transferred from California to Missouri.

In ruling this question the Industrial Commission found:

'It is our finding, however, that all factors point to the ultimate conclusion that the parties involved here, must have intended to contract in California for performance in California as well as elsewhere in the United States where employee's duties required his presence, including Missouri. The fact remains, however, that the 'contract of employment' was made and entered into in California, not Missouri. The fact that employee was required to establish residency elsewhere in order to best carry out his duties is a factor to be considered, but it is not, in itself, controlling upon the issue before us. Further, a reading of the collective bargaining agreement of April 1, 1967, will disclose that the agreement contemplated not only the employee, but all employees of Denver-Chicago similarly situated and engaged, no matter where they were hired or were located on the effective date of the agreement. The agreement in no way had the effect of retroactively determining the situs of an original contract of employment nor does it establish a new contract of employment at the location where the particular employee concerned happens to be residing on the effective date of the agreement. 'The injuries in question having been received outside of this state and the employee's dependents having failed to sustain the burden of showing that it was under contract of employment made in this state, the Missouri Workmen's Compensation Act does not apply.'

The determination of the question of Missouri's jurisdiction is governed by V.A.M.S. 287.110, Section (2), which reads:

'This chapter shall apply to all injuries received in this state, regardless of where the contract of employment was made and also to all injuries received outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide.'

In passing on the sufficiency of the evidence it must be kept in mind that this court views the record in the light most favorable to the finding and disregards any evidence which might support a different finding than the one the Commission made. McCue v. Studebaker Automotive Sales, Inc., Mo.App., 389 S.W.2d 408; Rendleman v. East Texas Motor Freight Lines, 355 Mo. 287, 196 S.W.2d 171; Adams v. Continental Life Insurance Company, 340 Mo. 417, 101 S.W.2d 75. In this connection we further observe that the question of where the contract of employment or arrangement was made is one of fact (Kelsall v. Riss & Company, Mo.App., 165 S.W.2d 329) and the burden of sustaining that fact, both as to proof and persuasion is upon the claimant. 165 S.W.2d at 333; Smith v. Braudis, 234 Mo.App. 1237, 123 S.W.2d 223.

'The general test of where, as a fact, the relationship * * * of employee and employer was created or entered into is a problem of the intention of the parties * * * as evidenced by their...