Hartman v. Union Electric L. & P. Co.

• Decision Date: 28 September 1932
• Docket Number: No. 31421.,31421.
• Court: Missouri Supreme Court
• Parties: INEZ HARTMAN ET AL. v. UNION ELECTRIC LIGHT & POWER COMPANY ET AL., Appellants.

53 S.W.2d 241

INEZ HARTMAN ET AL. v. UNION ELECTRIC LIGHT & POWER COMPANY ET AL., Appellants.

No. 31421.

Supreme Court of Missouri, Division Two.

September 28, 1932.

Appeal from St. Francois Circuit Court. — Hon. B.H. Boyer, Judge.

AFFIRMED.

Holland, Lashly & Donnell and Harold C. Ackert for appellants.

(1) The Missouri Workmen's Compensation Act is not compulsory, but on the contrary is wholly voluntary, elective and optional. State ex rel. Brewen-Clark v. Missouri Workmen's Compensation Comm., 8 S.W. (2d) 897; De May v. Liberty Fdry., 37 S.W. (2d) 640; Warren v. American Car & Fdry., 38 S.W. (2d) 718; Kemper v. Gluck, 39 S.W. (2d) 330. (2) The Missouri Workmen's Compensation Act is contractual and, when accepted by both employer and employee, supplements the other terms of their contract of employment and becomes an integral part thereof by providing the rights and liabilities of said parties in case of an accident or death arising out of or in the course of their employment. State ex rel. Brewen-Clark v. Missouri Workmen's Compensation Comm., supra; Warren v. American Car & Fdry., supra; Kemper v. Gluck, supra. (3) A contract made in Missouri to be performed either wholly or in part in Illinois is subject, in so far as the mode of performance is concerned, to the laws of the State of Illinois, i.e., to the laws of the state of performance. Peak v. International Harvester Co., 186 S.W. 574; Tremain v. Dyott, 161 Mo. App. 217, 142 S.W. 760; 13 C.J. 249; Andrews v. Pond, 13 Peters, 65, 10 L. Ed. 61; London Assurance Co. v. Companhia de Moagens, 167 U.S. 149, 42 L. Ed. 113, 17 Sup. Ct. Rep. 785; Hall v. Cordell, 142 U.S. 116, 35 L. Ed. 956, 12 Sup. Ct. Rep. 154. (4) While the Missouri Workmen's Compensation Act, being contractual, may cover injuries received outside of the State of Missouri, it never covers such injuries where the contract of employment otherwise provides. R.S. 1929, sec. 3310 (b), Mo. Workmen's Comp. Act, sec. 12 (b). (5) An employee or an employer, or both, are presumed to know the law of Illinois when they are actually doing business or carrying on work in that state. Johnson v. Nelson, 128 Minn. 158, 150 N.W. 620; American Mut. Liability Ins. Co. v. McCaffrey, 37 Fed. (2d) 870; Bentley v. Whitmore, 18 N.J. Eq. 366; Hill v. Speer, 50 N.H. 255. (6) When the terms of Hartman's original contract, which provided for work in and around River Mines in the State of Missouri, was changed by substituting a new place of performance in Illinois, and when Hartman actually went into Illinois to work, where he and the employer are charged in law with knowing the existence of a compulsory compensation act, the provisions of such compensation act were superimposed upon the original contract of employment and the provisions of such Illinois Workmen's Compensation Act were substituted for and in the place of the compensation provisions of the Missouri act. Douthwright v. Chaplin, 91 Conn. 524, 100 Atl. 97; Banks v. Howlett, 92 Conn. 368, 102 Atl. 822; Ocean Accident & Guaranty Co. v. Industrial Comm., 257 Pac. 644; Amer. Mut. Liability Ins. Co. v. McCaffrey, 37 Fed. (2d) 870. (7) Computation of wages can only be made under Section 22 (d) (R.S. 1929, sec. 3320 [d]) of the Missouri Workmen's Compensation Act in the event that it is not otherwise possible to compute such wages in accordance with Section 22 (a) (R.S. 1929, sec. 3320 [a]) or Section 22 (c) (R.S. 1929, sec. 3320 [c]); R.S. 1929, sec. 3320 (d), Missouri Workmen's Compensation Act, Sec. 22 (d). (8) The burden of proving all the necessary facts is upon the claimants, and failure to prove the facts showing the impossibility of computation of wages in accordance with Section 22 (e) of the Missouri Workmen's Compensation Act is fatal to claimants' case. Munton v. Driemeyer, 22 S.W. (2d) 61. (9) Section 22 (d) is only applicable in computing an employee's wages in cases where it was the custom in the particular employment to work throughout the working days of the year, and failure to prove such fact or custom is fatal to claimants' case. Munton v. Driemeyer, supra; R.S. 1929, sec. 3320 (d) (Compensation Act, Sec. 22 [d]).

A.B. Holmes and Frank Coffman for respondent.

(1) The contract of employment was made in Missouri. Deceased was permanently employed in Missouri. The fatal injury was met with while he was temporarily working in Illinois. Hence, the award was properly made under the Missouri Compensation Law, because: (a) The Missouri Compensation Law is elective. Kemper v. Gluck, 39 S.W. (2d) 330. (b) And its provisions are applicable to injuries received outside the State, as well as those received in this State. Sec. 3310, subsection (b), R.S. 1929. (c) Both parties having elected to come within its provisions, the act was a part of the employment contract, and injuries are compensable under it, regardless of where they occur. State ex rel. v. Missouri Compensation Commission, 8 S.W. (2d) 897; Smith v. Van Noy Interstate Co., 262 S.W. 1048. (d) It is the rule, without exception, that injuries to employees, occurring in a foreign state, where the employment temporarily takes them, are compensable under the compensation law of the state of the permanent employment. State ex rel. v. Mo. Workmen's Compensation Comm., 8 S.W. (2d) 897; Amaxis v. Vassilaros, Inc., 250 N.Y. Supp. 201; Miller Brothers Const. Co. v. Maryland Casualty Co., 155 Conn. App. 709; Armburg v. Railroad, 177 N.E. 665; The Linseed King, 48 Fed. (2d) 311; Interstate Power Co. v. Industrial Comm., etc., 234 N.W. 889; Pederzoli's Case, 169 N.E. 427; Klettke v. Commercial Driveaway, 231 N.W. 132, 250 Mich. 454; Deakins v. Commercial Driveaway, 231 N.W. 133; State v. State Industrial Accident Board, 286 Pac. 408; Indemnity Co. v. Wilson, 17 S.W. (2d) 68 (Tex.); Casualty Ins. Co. v. Huhn, 142 S.E. 121, 165 Ga. 667; Bradtmiller v. Liquid Carbonic Co., 217 N.W. 680, 173 Minn. 481; Employers Ins. Assn. v. Price, 300 S.W. 667 (Tex.); Krekelberg v. Floyd Co., 207 N.W. 193, 166 Minn. 149; Pettite v. Const. Co., 103 Conn. 102; Madderns v. Fox Film Corp., 200 N.Y. Supp. 344, 205 App. Div. 791; Stansberry v. Stone Co., 183 N.W. 977; Post v. Burger & Gohike, 216 N.Y. 544; Klein v. Stoller & Cook Co., 220 N.Y. 670; Fitzpatrick v. Blackall & Baldwin Co., 220 N.Y. 671; Spratt v. Sweeney & Grey Co., 216 N.Y. 763. (2) There was a substantial compliance with the requirements of the act, respecting computation of annual earnings. Appellants' claim that computing such earnings under subsection (d) of Section 3320, Revised Statutes 1929, was not justified, is technical and should not be allowed. Sec. 3374, R.S. 1929. (3) Respondents are entitled to all reasonable inferences to be drawn from the testimony which will support the award of the Commission. Cotter v. Coal Co., 14 S.W. (2d) 660; Betz v. Telephone Co., 24 S.W. (2d) 224; Hulsmann v. Stute & Co., 28 S.W. (2d) 387; Brewer v. Cement Co., 25 S.W. (2d) 1086.

FITZSIMMONS, C.

Ralph A. Hartman, while working for appellant, Union Electric Light and Power Company, fell from a transmission line tower at Valmeyer, Illinois, and was killed. Respondents, his widow and dependent children, filed a timely claim before the Missouri Workmen's Compensation Commission, which awarded compensation in the sum of $8,866, payable in installments over a period of 435.8 weeks. Appellants, the employer and its insurer, took an appeal to the Circuit Court of St. Francois County which affirmed the award. From the judgment of the circuit court appellants appealed to this court. It was admitted that Hartman lost his life by accident arising out of and in the course of his employment, but liability was denied upon the ground that the Missouri Workmen's Compensation Commission did not have jurisdiction over the case for the reason that the accident occurred in Illinois which has a compulsory Compensation Act.

The deceased, Ralph Hartman, was employed December 3, 1929, by Union Electric Light and Power Company in the construction of its substation at Rivermines, St. Francois County, Missouri, and he was so employed to the time of his death on September 6, 1930. During the period of his employment Hartman and his family lived at Rivermines and, prior to that, at Rolla, Missouri. George W. Couch, who hired Hartman was, at the time of the employment, superintendent of construction of the station at Rivermines. But on May 28, 1930, Couch was also appointed superintendent of transmission and his jurisdiction was extended over the transmission lines of the Electric Company between its plants at Cahoka, Illinois, and Rivermines, Missouri. After Couch took charge of the transmission lines he sent Hartman to Illinois twice. The first time was on a Sunday to make repairs, and the second time was September 3, 4, 5 and 6, 1930, on which latter day Hartman fell and was killed. Of the work which Hartman and others were doing at the time of his death, Couch testified before the Commission:

"Q. Did you have any men working over there prior to the time you sent Mr. Hartman over? A. No; not on maintenance.

"Q. What kind of work were they doing? A. More construction work, installing some porcelain signs on the tower — a number of signs. When a plane goes over the line they could read the tower numbers from the air — large porcelain signs, letters six inches.

"Q. Was that temporary work in Illinois or was it permanent transfer, Mr. Couch? A. It was just a small job. They had almost completed the job that afternoon when he got hurt; another three hours, come back, and wouldn't have further work over there for two weeks.

"Q. Then this permanent job was at Rivermines, Missouri? A. Yes; I would say it was because he hadn't been transferred over to the transmission department.

"Q. And his original contract was entered with you at Rivermines? A. Yes."

Couch had been given the task of forming a permanent transmission-repair crew from the experienced linemen in the construction force at...