Hunt v. Jeffries

• Decision Date: 02 December 1941
• Parties: JAMES HUNT AND ANNA BELLE HUNT, DEPENDENTS OF JAMES CHARLES HUNT, DECEASED EMPLOYEE, APPELLANTS, v. JOHN L. JEFFRIES D/B/A MOUND CITY ERECTION COMPANY, EMPLOYER, AND LIBERTY MUTUAL INSURANCE COMPANY, INSURER, RESPONDENTS
• Court: Missouri Court of Appeals

156 S.W.2d 23

236 Mo.App. 476

JAMES HUNT AND ANNA BELLE HUNT, DEPENDENTS OF JAMES CHARLES HUNT, DECEASED EMPLOYEE, APPELLANTS, v. JOHN L. JEFFRIES D/B/A MOUND CITY ERECTION COMPANY, EMPLOYER, AND LIBERTY MUTUAL INSURANCE COMPANY, INSURER, RESPONDENTS

Court of Appeals of Missouri, St. Louis

December 2, 1941

Appeal from the Circuit Court of the City of St. Louis.--Hon William S. Connor, Judge.

AFFIRMED.

Action affirmed.

Bartley & Mayfield for appellants.

(1) Daggett v. K. C. Struct. Steel Co., 65 S.W.2d 1036; Sims v. Truscon Steel Co., 126 S.W.2d 204, 206-207; Eyring v. K. C. Life Ins. Co., 129 S.W.2d 1086 1089; Williams v. Emerson B. Imp. Co., 198 S.W. 425 427; (a) Yeats v. Dodson, 127 S.W.2d 652, 656; Williams v. Emerson B. Imp. Co., 198 S.W. 425; Leesley Bros. v. Fruit Co., 162 Mo.App. 195, 208. (b) Leesley Bros. v. Fruit Co., 162 Mo.App. 195 208; 9 Cyc. 270; Lawson on Contracts, page 27 et seq. (2) Sec. 3700, R. S. 1939; State ex rel. v. Mo. W. Comp. Comm., 8 S.W.2d 897; Shout v. Gunite C. & Const. Co., 41 S.W.2d 629. (3) Elihinger v. Wolf H. F. Co., 85 S.W.2d 11. (a) Sec. 3709, sub (d), R. S. 1939. (b) Elihinger v. Wolf H. F. Co., 85 S.W.2d 11, 14; Holland v. Missouri Electric P. Co., 104 S.W.2d 277; Triola v. Western U. Tel. Co., 25 S.W.2d 518. (c) A legal obligation to support is not necessary to create dependency. Elihinger v. Wolf H. F. Co., 85 S.W.2d 11, 15. (4) Maltz v. Jackoway-Katz C. Co., 82 S.W.2d 909, 915; DeMoss v. Evens, H. T. B. Co., 57 S.W.2d 720, 721; Seifert v. Heil, 552 S.W.2d 579, 582; Garcia v. Vix I. Cream Co., 147 S.W.2d 141. (5) State ex rel. v. Hostetter et al., 98 S.W.2d 683; Bicanic et al. v. Kroger Gro. & Bak. Co. et al., 83 S.W.2d 917.

John F. Evans for respondents.

(1) Noto v. Hemp & Co., 231 Mo.App. 982, 83 S.W.2d 136; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Crutcher v. Airplane Mfg. Co., 331 Mo. 169, 52 S.W.2d 1019; Shroyer v. Livestock Comm. Co., 332 Mo. 1219, 61 S.W.2d 713; Burgstrand v. Crow Coal Co., 336 Mo. 119, 77 S.W.2d 97 (2) (a) Hall v. St. L.-S. F. Ry. Co., 224 Mo.App. 431, 28 S.W.2d 687; Maisel v. Sigman, 205 N.Y.S. 807; Meltzer v. Kaminer, 227 N.Y.S. 459; Barnes v. Berry, 169 F. 225; Annotation, 95 A. L. R. 40. (b) 12 Am. Jurisprudence, Contracts, secs. 41-45, pp. 535-538; Williams v. Implement Co., 198 S.W. 425; Lee v. Dodd, 20 Mo.App. 271; Lungstrass v. Insurance Co., 48 Mo. 201.

McCULLEN, J. Hughes, P. J., and Anderson, J., concur.

OPINION

McCULLEN, J.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, Missouri, which affirmed an award of the Missouri Workmen's Compensation Commission denying the claim for compensation of James Hunt and Anna Belle Hunt on account of the death of James Hunt, Jr.

Referee White of the Workmen's Compensation Commission, after a hearing, made an award to claimant James Hunt for funeral expenses and to James Hunt and Anna Belle Hunt jointly an award of compensation of $ 20 per week for 316.9 weeks. Upon a review by the full commission, two members thereof (the third member dissenting), made a finding and award denying compensation, giving their reasons for such denial as follows:

"We find from all the evidence that the contract of employment between deceased employee herein and employer, John L. Jeffries, doing business as Mound City Erection Company, was made in the State of Illinois, and that the accident alleged herein and from which employee died happened in the State of Illinois. Therefore, this Commission is without jurisdiction in this claim and compensation is accordingly denied."

From said finding and award of no compensation claimants appealed to the circuit court where the finding and award were affirmed, and claimants thereafter duly appealed to this court.

Appellants contend that the circuit court erred in affirming the award of the commission denying compensation on the ground of lack of jurisdiction; and that the court further erred in not holding that the contract of employment involved herein was made in Missouri.

The record shows that it was admitted that the employer was a major employer and carried insurance in compliance with the provisions of the Missouri Workmen's Compensation Act. It was agreed by the parties that, if the Missouri Workmen's Compensation Act was applicable under the evidence, then both employer and employee were governed by the provisions of said act.

It was admitted that James Hunt, Jr., sustained an accident on May 17, 1939, while he was in the employ of the respondent employer, and that said accident arose out of and in the course of his employment; that death resulted to the employee on May 22, 1939, from said accident; that the accident occurred at Scott Field near the City of Belleville in the State of Illinois; that the employee had been working on the same job for the employer from March 14, 1939, to the date of the accident; that on said date some scaffolding on which he was working fell, causing the injuries which resulted in his death; that appellants' claim for compensation was filed herein within the time required by law. It is undisputed that for a long time prior to and during such employment, the employee lived with the claimants in their home in the City of St. Louis, Missouri; that claimant appellant James Hunt was the natural father of James Hunt, Jr., the employee, and that claimant appellant Anna Belle Hunt was his stepmother; that the employee was an apprentice ironworker by trade, and his father was a journeyman ironworker, an apprentice ironworker being one who is learning the trade.

John McCarthy, who was a witness for claimants, was the business agent for the Ironworkers' Union, Local No. 392 of and for East St. Louis, Illinois. McCarthy lived in East St. Louis, Illinois. Said local union did not have jurisdiction over the St. Louis, Missouri, territory but did have jurisdiction over certain territory which included East St. Louis and Scott Field, Illinois, where the accident occurred. It was a local union of the international union of ironworkers which was affiliated with the American Federation of Labor. During the months of March, April and May, 1939, the employer was engaged in doing some erection work at Scott Field, Illinois. Said employer was a member of a group of contractor employers who had entered into a written agreement with the District Council of the ironworkers' union which was located in the City of St. Louis, Missouri. The District Council included in its jurisdiction the "east side" territory involved herein, as well as the St. Louis territory. The agreement between said group of contractors, including the employer herein, on the one side and the District Council of the ironworkers' union on the other provided that the members of the contractors group would employ only members of the ironworkers union in structural steel work and certain other work. The terms and conditions of the employment of ironworkers with respect to hours and wages and conditions of employment were agreed upon and fixed in said agreement.

The regular custom under said agreement and the rules of the union was that all ironworkers were employed through the business agent of the local union and not by arrangements between individual contractors and the individual ironworkers or apprentices direct. If an employer wished to employ a particular union member, he would make such request of the business agent of the union who would try to arrange for such union member's service if he was available. All transactions with reference to obtaining ironworkers and ironworker apprentices on any job within the East St. Louis district, which included Scott Field, were made through McCarthy as business agent of the union.

The only testimony adduced at the hearing was that introduced by claimants. John McCarthy, business agent of the East St. Louis local union, testified that on March 13, 1939, he had a conversation with Mr. Watson who was the superintendent on the job at Scott Field, Illinois, for the respondent employer herein; that the conversation took place at Scott Field and that Mr. Watson asked the witness to get him two ironworker apprentices. The witness testified that at that time there was a good bit of work going on at Scott Field, and that he, as business agent, didn't have anyone out of work right then belonging to the East St. Louis local; that he told Watson that and told him that he, the witness would have to get the men from St. Louis; that Watson then said: "That's o. k. by me; just so you get them on the job tomorrow morning." The witnesses further testified that he knew James Hunt, Jr., and knew he was then out of work; that he called by telephone from his own home in East St. Louis, on the same day that he had talked with Watson, to the home of James Hunt, claimant herein, which was also the home of James Hunt, Jr. On that call McCarthy was informed that Hunt, Jr., was not at home at the time, and McCarthy talked only to Hunt, Jr.'s father. In this connection witness McCarthy testified as follows:

"Q. What did you do and what did you say then with reference to his going to work? A. I told Mr. Hunt, Senior, to tell James Hunt, Junior, to go to Scott Field and go to work for Jeffries in the morning.

"Q. Did you leave any further instructions as to what to do when he arrived there? A. Just to report for work; that they needed some men there.

"Q. Now, do you know--did you have any further conversation by telephone, or otherwise, with Mr. Hunt after that day? A. No not that day.

"Q. Do you know whether Mr. Hunt, Junior, actually went to work the next day? A. He did.

"Q. How long did he continue on that job? A. Until the time of his injury along in May, I believe it was; May 17.

"Q. Did you leave any...