Kelsall v. Riss & Co.
| Citation | 165 S.W.2d 329 |
| Decision Date | 04 November 1942 |
| Docket Number | No. 26183.,26183. |
| Court | Missouri Court of Appeals |
| Parties | KELSALL v. RISS & CO. |
Appeal from Circuit Court, Marion County; Branham Rendlen, Judge.
"Not to be reported in State Reports."
Proceeding under the Workmen's Compensation Act by Noel F. Kelsall, employee, against Riss & Company, employer and insurer. From a judgment of the Circuit Court affirming a final award of the Workmen's Compensation Commission denying compensation, the employee appeals.
Affirmed.
Paul E. Bindley, of Kansas City, and Roy Hamlin, of Hannibal, for appellant.
M. D. Campbell, Jr., of Kansas City, and Harry Carstarphen, of Hannibal, for respondent.
Appeal by the employee from a judgment of the circuit court affirming a final award of the Workmen's Compensation Commission denying compensation. The employee's claim was for injuries received on October 5, 1939, one and one-half miles south of Palmyra, Missouri, on Highway # 24 in Marion County, when and where claimant was driving a truck belonging to and at the direction of employer from employer's garage in Kansas City, Kansas, to some point in Illinois, for the purpose of repairing another truck belonging to employer and which had been in a wreck, when he fell asleep and the truck he was driving left the highway and overturned.
The employer, Riss & Company, Inc., is engaged in an interstate trucking business, and maintains its principal office at 224 East Fourth Street, Kansas City, Missouri. Employer also maintains a shop or garage at 1917 North Fifth Street, Kansas City, Kansas, in charge of David Shultz, who was assistant to the president and general credit manager of Riss & Company, Inc. The average number of employees at the garage was in the neighborhood of thirty. Kelsall, who lived in Kansas City, Missouri, had worked as a mechanic for other companies, but desiring to better himself as to pay made application for employment in employer's garage. He first called employer over the telephone in Kansas City, Missouri. The evidence is not clear whether this call was to the Kansas City, Missouri office or to the garage in Kansas City, Kansas; however, in any event the telephone call did not result in his being employed, but thereafter he went to the Riss & Company garage in Kansas City, Kansas, and talked to a Mr. Young who was superintendent of Riss & Company's shop or garage, at which time and place Mr. Young took his written application for employment. Mr. Young gave Kelsall a blank application and Kelsall filled it out and signed it. Kelsall claims that he was alone in Young's office when he filled out and signed the application, Mr. Young having left the office, and that he left the application on Mr. Young's desk for him; that no mention was made to him at any time by any person connected with Riss & Company relative to his accepting compensation under the Kansas law regardless of where he might be injured.
The application for employment was produced and contains the following statement written immediately beneath the signature of Kelsall, viz: "I was hired in the State of Kansas and agree to work under the Kansas Workmen's Compensation Act".
Mr. Young testified that when he employed Kelsall he stated to him, "You understand you are now being employed under the Kansas Workmen's Compensation Act," which statement he made to all employees hired in Kansas, and Kelsall did not reply, but later he went to work. Young further testified that Mr. Crawford, another employee, wrote the words on Kelsall's application, "I was hired in the State of Kansas and agree to work under the Kansas Workmen's Compensation Act"; that he and Crawford and Kelsall were all three present at the time.
Horton Crawford testified that he was in the employ of Riss & Company in charge of pay roll and personnel work; that he prepared the pay roll schedule and records and accounts of Social Security tax for Noel Kelsall, and also issued checks in payment of wages; that at the time Kelsall was employed Mr. Young called him and asked him for a blank; that he took the blank to Mr. Young's office and Mr. Kelsall filled it out and that he (witness) inspected it to see that all the information was on it that was needed; that the provision as to the Kansas Compensation law was not on it, and that he (witness) in the presence of Kelsall and Young wrote the words beneath Kelsall's signature, and after he wrote it on there he read it to Kelsall.
Witnesses Shultz and Young both testified that a bulletin was posted on the garage premises in plain view to the effect that the employees of the garage in Kansas City, Kansas, were working under the Kansas Workmen's Compensation Act, Gen.St.1935, 44-501 et seq., and also signifying the name of the doctor who should be called in case of emergency.
The Workmen's Compensation Commission reversed an award in employee's favor made by its referee, and made an award denying compensation, the finding being as follows:
This final award of the Workmen's Compensation Commission was affirmed by the circuit court and claimant has appealed to this Court.
As we understand Appellant's first contention it is that the greater weight of the evidence supports the finding and award made by the referee, and not the finding and final award made by the Commission, and hence we should reverse the judgment of the circuit court affirming the final award. Such is not the law. In a case where there is sufficient competent evidence to support a finding by the Commission either for or against the final award, the circuit court on review is bound to believe the evidence in the record that tends to support the final award, and to draw all reasonable inference therefrom favorable to such award, and to disregard the evidence contradictory thereto. Anschutz v. Phillips Petroleum Co., Mo.App., 142 S.W. 2d 110; Hunt v. Jeffries, Mo.App., 156 S. W.2d 23. The Commission is the sole judge of the weight of the evidence and the credibility of the witnesses. The Compensation Act, Section 3732 R.S.1939, Mo. R.S.A. § 3732, provides that "Upon appeal no additional evidence shall be heard and in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding." Of course, the Commission in reviewing the award of its Referee, and in passing on the weight of the evidence and the credibility of the witnesses, as it has the right to do, might properly consider that the Referee had the witnesses before him and was thus in a position which gave him a great vantage ground over the members of the Commission who afterwards had the opportunity of reading the testimony, but when the Commission determined the issues, its finding had the force and effect of a verdict, and the circuit court on appeal had no right to pass on the weight of the evidence or the credibility of the witnesses. As stated by this Court in the case of Kane v. St. Louis Refrigerator Transit Co., Mo.App., 83 S.W.2d 593, 597, and again in Aldridge v. American Car & Foundry Co., Mo.App., 132 S.W.2d 1023, 1026:
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