Johnson v. Great Lakes Pipe Line Co.

• Citation: 215 S.W.2d 460,358 Mo. 445
• Decision Date: 13 December 1948
• Docket Number: 40805
• Parties: Howard L. Johnson (Deceased), Employee, Orpha T. Johnson, Dependent, Appellant, v. Great Lakes Pipe Line Company, Employer, and Hartford Accident and Indemnity Company, Insurer, Respondents
• Court: United States State Supreme Court of Missouri

215 S.W.2d 460

358 Mo. 445

Howard L. Johnson (Deceased), Employee, Orpha T. Johnson, Dependent, Appellant, v. Great Lakes Pipe Line Company, Employer, and Hartford Accident and Indemnity Company, Insurer, Respondents

No. 40805

Supreme Court of Missouri

December 13, 1948

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

R C. Southall and R. J. Southall, for appellant.

(1) The court erred in refusing to hold that a contract is "entered into" at the place where the last act necessary to complete it is performed. Daggett v. K.C Structural Steel Co., 65 S.W.2d 1036, 54 S.Ct. 640, 292 U.S. 630, 78 L.Ed. 1484; Restatement of the Law of Contracts, sec. 72; 17 C.J.S. 813, sec. 346; Adams v. Continental Life Ins. Co., 101 S.W.2d 75; Toon v. Evans Coffee Co., 103 S.W.2d 533; Colt v. Gregor, 44 S.W.2d 2; Illinois Fuel Co. v. M. & O.R. Co., 8 S.W.2d 834; D'Oench, Huhne & Co. v. F.D.I.C., 116 F.2d 491, 62 S.Ct. 676, 315 U.S. 447, 85 L.Ed. 477; Deister v. Thompson, 180 S.W.2d 15, 352 Mo. 871; Overcash v. Yellow Transit Co., 180 S.W.2d 678, 352 Mo. 993. (2) The court erred in holding that the fact that the work of the employee was in Kansas deprived the Missouri Division of Workmen's Compensation of jurisdiction to make an award for an injury arising out of and in the course of his employment. Sec. 3700, R.S. 1939; Toon v. Evans Coffee Co., 103 S.W.2d 533; State ex rel. v. Commission, 8 S.W.2d 897; State ex rel. v. Commission, 95 S.W.2d 641, 339 Mo. 150; Blatz Brewing Co. v. Commission, 230 N.W. 622, 201 Wis. 474; State ex rel. v. District Court, 166 N.W. 185, 139 Minn. 205; Daggett v. K.C. Structural Steel Co., 65 S.W.2d 1036. (3) The court erred in ruling that the last act to complete the contract of employment had not occurred in Missouri. Daggett v. K.C. Structural Steel Co., 65 S.W.2d 1036; Mott v. Kansas City, 60 S.W.2d 736; Pruitt v. Harker, 43 S.W.2d 769, 328 Mo. 1200; Deister v. Thompson, 180 S.W.2d 15, 352 Mo. 871; Overcash v. Yellow Transit Co., 180 S.W.2d 678, 352 Mo. 993; 21 C.J.S. 172, sec. 112.

Leo T. Schwartz for respondents; John A. McGuire of counsel.

(1) Scope of review. Seabaugh's Dependents v. Garver Lumber Manufacturing Company, 355 Mo. 1153, 200 S.W.2d 55; Wood v. Wagner Electric Co., 355 Mo. 670, 197 S.W.2d 647; Burke v. Coleman, 356 Mo. 594, 202 S.W.2d 809; Scott v. Wheelock Bros., Inc., 209 S.W.2d 149. (2) There was competent and substantial evidence to support the award. American Sash & Door Co. v. Commerce Trust Co., 332 Mo. 98, 56 S.W.2d 1034; Sims v. Truscon Steel Co., 343 Mo. 1216, 126 S.W.2d 204. (3) Awards under similar facts have been approved by the Missouri courts. Anschutz v. Phillips Petroleum, 142 S.W.2d 110; Kelsall v. Riss & Co., 165 S.W.2d 329; Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W.2d 1036. (4) When Linch orally accepted Johnson's application for employment the contract took immediate effect. Hudson v. Rodgers, 121 Mo.App. 168, 98 S.W. 778. (5) The place where the agent enters into the contract is the place of contract even though it is subsequently approved or ratified in some other state by the principal. Golson v. Ebert, 52 Mo. 260; Gibson v. Connecticut Fire Ins. Co., 77 F. 561. (6) The rule or custom of the corporation concerning approval of the acts of agents did not affect the contract of hire. International Harvester Co. v. Campbell, 96 S.W. 93. (7) There is no provision of law for the filing and consideration of requested findings of fact and requested declarations of law by the circuit court in an appeal from the award of the Industrial Commission and assignments of error based on rulings thereon are nullities and present nothing for review by this court. State ex rel. Melbourne Hotel Co. v. Hostetter, 344 Mo. 472, 126 S.W.2d 1189; Sec. 3732, R.S. 1939; Teague v. Laclede-Christy Clay Products Co., 331 Mo. 147, 52 S.W.2d 880; Hoffman v. Mo. Pac. Railroad Co., 63 S.W.2d 427; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55.

Van Osdol, C. Bradley and Dalton, CC., concur.

OPINION

VAN OSDOL

Appeal from a judgment of the Circuit Court affirming an award denying compensation in a proceeding under the Workmen's Compensation Law. The claim was made by the widow-dependent for benefits of $ 10,380 for the death of the employee, Howard L. Johnson.

Commission found "from the evidence that the contract of employment between the employer and employee herein was entered into in the State of Kansas and that the alleged accident, series of accidents, or occupational disease occurred in the State of Kansas. This Commission, therefore has no jurisdiction in the premises and compensation must be and is hereby denied."

The only question presented upon this appeal is the jurisdiction of the Commission to determine the claim.

It is provided by Section 3700 R.S. 1939, Mo. R.S.A. § 3700, that ". . . (b) This chapter (Chapter 29, Workmen's Compensation Law) 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."

Where the employer is a major employer operating under the Missouri Workmen's Compensation Law, the Law is applicable to all injuries received outside of this state and under contract of employment made in this state (unless the contract otherwise provides). Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W. 2d 75; Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W. 2d 1036; Toon v. David G. Evans Coffee Co., Mo. App., 103 S.W. 2d 533. See also Loudenslager v. Gorum, 355 Mo. 181, 195 S.W. 2d 498. The general test of where, as a fact, the contract of employment is entered into and the relation of employer and employee is created is the intention of the parties as evidenced by their acts and conduct, the nature of the business, the situation of the parties, and all the facts and circumstances. Rendleman v. East Texas Motor Freight Lines, 355 Mo. 287, 196 S.W. 2d 171; Overcash v. Yellow Transit Co., 352 Mo. 993, 180 S.W. 2d 678; Deister v. Thompson, 352 Mo. 871, 180 S.W. 2d 15; Kelsall v. Riss & Co., Mo. App., 165 S.W. 2d 329. And it has been said the place where the contract of employment is made and the relation of the employer and employment established or created is the place where the final act occurs which makes a binding contract. Overcash v. Yellow Transit Co., supra; Deister v. Thompson, supra; Adams v. Continental Life Ins. Co., supra; Daggett v. Kansas City Structural Steel Co., supra. See also Rendleman v. East Texas Motor Freight Lines, supra.

It is appellant-claimant's contention that, although Claimant's decedent suffered death from injury received by accident, series of accidents, or occupational disease in Kansas, the final act (the "approval" of the contract) completing the contract of employment had occurred in Missouri; and, since Employer was admittedly operating under the Missouri Workmen's Compensation Law, the Commission's finding and final award denying compensation and the Circuit Court's judgment affirming the award were erroneous.

Employer-respondent, Great Lakes Pipe Line Company, had its general office in the Bryant Building, Kansas City, Missouri. Employer's president, Harry M. Moreland; and its vice-president, general superintendent and personnel manager, E. H. Skinner, were stationed at Employer's general office. Employer maintained district "field" or operating offices in other states, including a district office for its Fairfax district in Kansas City, Kansas. From its general office in Missouri, Employer supervised the operations of its lines passing through Kansas and Missouri, and other states. All original records pertaining to employees were kept in the general office. Payroll data and records of employees' "time off" were there kept; and Social Security taxes were paid, and employees' income was withheld for income tax purposes through and at its general office.

Employer's Fairfax district office was in the charge of a district superintendent. A "terminal" of Employer's line was also located in Kansas City, Kansas, the terminal being in the charge of a terminal superintendent. When Employee, Howard L. Johnson, was employed, Employer's district superintendent was Noble L. Linch. Linch testified Employee made application personally at the Fairfax district office in Kansas. It seems Linch put Employee on temporary work as a laborer August 1, 1933; and, subject to physical examination, Employee was "transferred" to permanent employment August 16th. He was permanently employed as a gauger. He continued his residence in Kansas City, Missouri, and continued to work in the Fairfax district (in Kansas) until his death, July 13th or 18th, 1946.

Two "Employment Rate Change Transfer" (form) cards were used in connection with the employment of Howard L. Johnson. The first card indicates Johnson was employed August 1, 1933 and the employment terminated August 15th; the stated "Reason For Termination" is, "Transferred to Permanent Position." The second card, identified as Claimant's Exhibit No. 4, discloses the filled-in statement of the name of Employee, Howard L. Johnson, residence Kansas City, Missouri; the Claimant's name is stated as the insurance beneficiary; a report of an examining physician is shown as of date August 17, 1933; the card indicates Johnson was employed as a gauger August 16, 1933, at K.C.T. Dept. OP2; the stated reason for employment is, "Additional Labor, to Comply with N.R.A. Code. See Req. 8/21/33." The exhibit bears Employee's signature, and shows "E.H. Skinner and Harry M. Moreland" signed the exhibit over...