Hogue v. Wurdack

• Decision Date: 28 January 1957
• Docket Number: No. 7569,7569
• Parties: Everett HOGUE, Claimant, Respondent, v. Hugo WURDACK, Alleged Employer, and Employers' Liability Assurance Corporation, Ltd., Insurer, Appellants.
• Court: Missouri Court of Appeals

Page 492

298 S.W.2d 492

Everett HOGUE, Claimant, Respondent, v. Hugo WURDACK, Alleged Employer, and Employers' Liability Assurance Corporation, Ltd., Insurer, Appellants.

No. 7569.

Springfield Court of Appeals, Missouri.

Jan. 28, 1957.

Sherwood R. Volkman, St. Louis, for appellants.

Geo. F. Addison, L. Clark McNeill, Salem, for respondent.

STONE, Judge.

In this proceeding under the Workmen's Compensation Law (hereinafter referred to as 'the Act') the Industrial Commission of Missouri (hereinafter called the Commission) awarded to Everett Hogue, the claimant, the aggregate sum of $7,770.75 for permanent partial disability, disfigurement and medical expense. On appeal by Hugo Wurdack, the alleged employer, and Employers' Liability Assurance Corporation, Ltd., his insurer (hereinafter jointly referred to as appellants), the cause has been transferred to us on the theory that, since a contingency exists under which appellants' liability might be terminated before payments aggregating more than $7,500 accrue, it cannot be said with certainty that the amount in dispute, independent of all contingencies, exceeds that sum. Hogue v. Wurdack, Mo., 292 S.W.2d 576; Section 287.230(2). (All statutory references herein are to RSMo 1949, V.A.M.S.)

Wurdack, a resident of St. Louis, Missouri, owned a farm of 1,156 acres in Crawford County. It was primarily a stock farm but 'we raised our own grain also.' On March 24, 1940, Hogue 'took charge of the farm' for Wurdack, working first under an oral agreement and, after March 1, 1945, under a written agreement. On January 31, 1953, Hogue sustained severe injuries when, as he was mounting a trailer wheel, 'the rim blew off' and struck him across the face.

We deal first with appellants' contention that the relation between Wurdack and Hogue was that of landlord and tenant, and not that of employer and employee, and that, therefore, Hogue was not entitled to an award under the Act. Section 287.040(2). The written agreement of March 1, 1945, between Wurdack and Hogue recited that it 'is between Everett Hogue, the tenant, and Hugo Wurdack, the owner, and is founded on the agreement for employment to operate the farms known as the Lennox Farm and the Ross Farm, situated near Cook Station, in Crawford County, Missouri.' The 'owner' was to 'furnish land, animals, machinery and equipment, farm house, barns and other necessary buildings,' as well as 'necessary posts and wire for keeping the fences in repair.' The 'tenant' was to 'furnish all labor (except threshing labor) necessary to farm the land, harvest the crop, tend the stock, cattle and hogs, maintain the fences, maintain the farm machinery and equipment (except skilled labor necessary to maintain such machinery and equipment), and all labor necessary for the upkeep and proper protection and operation of the property.' The agreement then detailed what 'the tenant is to receive as compensation for the above services,' consisting, generally speaking, of (1) the right to use a house and garden, (2) the right to keep two cows, two hogs and thirty chickens, and (3) forty per cent of the net increase in stock and of the net profit from sale of products. The agreement was to 'continue in effect until March 1, 1946, and then in periods of one year from March 1, 1946,' with either party having the right to terminate at the end of any contract year upon prior written notice.

In considering appellants' argument that references in the written agreement to Wurdack as 'owner' and to Hogue as 'tenant' evidenced a landlord-tenant relationship, we bear in mind the commonplace but fundamental principles that, in arriving at a fair and reasonable construction of a contract of doubtful meaning, the court may consider the subject matter of the contract, the facts and circumstances attending execution thereof, and its interpretation by the parties [Gabel-Lockhart Co. v. Gabel, 360 Mo. 518, 229 S.W.2d 539, 543(3); Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, 268(7)]; that, where the language of an agreement is not consistent throughout, the intention of the parties, as gathered from the entire instrument, must prevail over the strict letter of the contract [Kolb v. Golden Rule Baking Co., 222 Mo.App. 1068, 9 S.W.2d 840, 842(1); Ebbs v. Neff, 220 Mo.App. 1070, 282 S.W. 74, 77(4); Bent v. Alexander, 15 Mo.App. 181, 190(1)]; and, that greater regard is to be accorded to the clear intention of the parties than to any particular language used in attempting to express that intention. Veatch v. Black, 363 Mo. 190, 250 S.W.2d 501, 507; Truck Leasing Corp. v. Esquire Laundry & Dry Cleaning Co. Mo.App., 252 S.W.2d 108, 111(2); Stephenson v. Morrissey, Mo.App., 230 S.W.2d 124, 127. In short, the primary and cardinal rule, which permeates and pervades the entire field of contractual construction, is that the court should ascertain and (unless in conflict with some positive rule of law) then give effect to the intention of the parties. Cook v. Tide Water Associated Oil Co., Mo.App., 281 S.W.2d 415, 420(9).

The agreement under consideration was couched in conflicting terminology. Notwithstanding the references to Wurdack as 'owner' and Hogue as 'tenant,' the opening paragraph stated that the instrument was 'founded on the agreement for employment to operate the farms'; and, significantly (as we are persuaded) it provided that Hogue 'is to receive as compensation for the above services' forty per cent of the net profit and nowhere suggested that the sixty per cent retained by Wurdack was rental for the farm. The transcript indicates that Wurdack collected all farm income and, from time to time, paid Hogue's percentage of the net profit to him; and, from the testimony of Hogue, the only witness offering any oral evidence relating to farming operations, we infer that Wurdack remained in actual control thereof. Furthermore, we are unable to find that Hogue possessed 'an estate in the demised premises,' which is an essential and distinguishing characteristic of the relationship of landlord and tenant. State ex rel. Shall Petroleum Corp. v. Hostetter, 348 Mo. 841, 849, 156 S.W.2d 673, 677. See also Marden v. Radford, 229 Mo.App. 789, 799, 84 S.W.2d 947, 954(6); Fisher v. Payton, Mo.App., 219 S.W.2d 293, 296(5); 51 C.J.S., Landlord and Tenant, Sec. 6c, p. 514; Ibid., Sec. 2b(3), p. 511. Our conclusion is that the finding of the Commission 'that Everett Hogue was an employee of said employer (Wurdack)' was justified.

The other principal contention advanced by appellants is that Hogue was not entitled to an award because he was engaged in an exempted employment, i. e., farm labor, and was working for an exempted minor employer, who was not shown to have '(kept) posted in a conspicuous place on his premises a notice thereof to be furnished by the commission.' Section 287.090(2). Although Wurdack admittedly filed with the Commission during June, 1931, notice of his election to accept the Act, and during July, 1934, his acceptance of the amendment relative to occupational diseases [Section 287.020(4)], there was no evidence as to whether the Commission furnished to Wurdack notices of such acceptances to be posted and maintained on his premises. The only testimony bearing upon whether notice of Wurdack's election to accept the Act had been '(kept) posted in a conspicuous place on his premises' [Section 287.090(2)] was Hogue's answer on cross-examination, 'I didn't see any.' Hogue was not asked, and the record does not indicate, whether prior to the accident of January 31, 1953, Hogue had actual notice of Wurdack's election to accept the Act.

To establish that an exempted employer has been brought within the Act, Section 287.090(2) plainly and unmistakably requires a showing of (1) 'filing with the commission notice of his election to accept the same' and (2) 'keeping posted in a conspicuous place on his premises a notice thereof to be furnished by the commission.' Time and again, it has been pointed out in compensation proceedings that the General Assembly is presumed to have intended what it has stated directly and unambiguously and that the courts may not, under the guise of construction, add to or take from the clear and definite terms of a legislative enactment. ¹ Thus, we must and do accept Section 287.090(2) as we find it, for '(w)here the terms defining the right of election in (workmen's compensation) statutes of this character are direct and definite, they admit of no gloss and require no commentary.' Span v. Jackson-Walker Coal & Mining Co., 322 Mo. 158, 170, 16 S.W.2d 190, 196. The wisdom of enactment of Section 287.090(2) was for the legislative mind and conscience, not ours; and, if this statute operates unjustly or (as we think) needs alteration, remedial and corrective amendment is for the General Assembly, not the courts. ²

Like other administrative bodies, our Industrial Commission 'is a creature of the Legislature' [Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 719, 142 S.W.2d 866, 871(8)], and its 'jurisdiction * * * and the question of what persons are subject to it, is to be determined from the acts of our Legislature.' Morse v. Potosi Tie & Lumber Co., Mo., 130 S.W.2d 477, 478(3). In each of the Missouri cases ³ in which the posting of notices of election to accept [Section 287.090(2)] or to reject [Section 287.060] has been considered, it has been recognized or assumed that substantial compliance with the statutory provisions as to posting of such notices is essential to acceptance or rejection of the Act, as the case may be. ⁴ No Missouri case to the contrary has been cited or found. The numerous cases, in which injured workmen have sought to escape application of the Act in order that they might recover common-law damages, attest to the soundness of the observation that it is in the interest of employees as well as employers to require substantial compliance with statutory requirements for acceptance of the Act, before permitting...