Kilgore v. Industrial Commission

• Decision Date: 07 June 1960
• Docket Number: No. 7849,7849
• Citation: 90 A.L.R.2d 825,337 S.W.2d 91
• Parties: Lon W. KILGORE, Plaintiff-Respondent, v. INDUSTRIAL COMMISSION of Missouri, and Division of Employment Security, and Tri-State Drive-In Theatre, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 91

337 S.W.2d 91

90 A.L.R.2d 825

Lon W. KILGORE, Plaintiff-Respondent, v. INDUSTRIAL COMMISSION of Missouri, and Division of

Employment Security, and Tri-State Drive-In

Theatre, Defendants-Appellants.

No. 7849.

Springfield Court of Appeals, Missouri.

June 7, 1960.

Lloyd G. Poole, Jefferson City, for Industrial Commission of Missouri.

Stewart E. Tatum, Joplin, Harry L. Browne, and Howard F. Sachs, Kansas City, for Tri-State Drive-In Theatre.

Spencer, Fane, Britt, & Browne, Kansas City, of counsel, for appellants.

Daniel J. Leary, Joplin, Jack Eisen, Kansas City, for respondent.

McDOWELL, Judge.

This appeal is from a judgment of the Circuit Court of Jasper County, Missouri, reversing a decision of the Industrial Commission of Missouri denying claimant compensation.

The question to be determined is whether respondent left his work voluntarily without good cause attributable to his work or to his employment as provided in Section 288.050 RSMo 1949, as amended, 1959 Cumm. Annual Pocket Parts, Vol. 15, V.A.M.S.

Claimant filed an initial claim under the Missouri Division of Employment Security Law December 4, 1958, and, thereafter, claimed benefits through the week ending January 10, 1959. A deputy determined that the claimant was eligible for benefits without disqualification. Employer appealed from that determination on December 22, 1958, contending that claimant had left his work voluntarily without good cause attributable to his work or to his employer. After due notice to the interested parties, the appeal was heard by the referee in Joplin, Missouri, on January 21, 1959. On February 20, 1959, the referee affirmed the determination of the deputy. Application for review was filed by the employer with the Industrial Commission, where the findings of the deputy and referee were reversed. The Commission made the following findings:

'The employer operates a drive-in theatre near Joplin, Missouri. The employer signed an agreement with the Motion Picture Operators' Union Local No. 465 whereby he agreed that the Union would furnish the employer with a projectionist. This procedure was followed and for several years an individual by the name of Rouse worked as the projectionist for the employer on an agreed working schedule of seven nights a week. The employer was informed by Rouse in July of 1958 that for an indefinite period he would only work six days a week. Beginning in July of 1958 and continuing through December 6, 1958, a relief projectionist (the claimant) was furnished to the employer to work each Saturday night. The employer had no need for more than one projectionist. In December of 1958, the regular projectionist resumed working seven nights a week so that the claimant did not report for work as a relief projectionist.

'The Missouri Employment Security Law provides that a claimant shall be disqualified for waiting week credit or benefits until after he has earned wages equal to ten times his weekly benefit amount if it is found that he left his work voluntarily without good cause attributable to his work or to his employer.

'It is apparent from the evidence that the employer had need for only one projectionist and that under the contract which he had with Local Union No. 465 the Union was obligated to furnish a reliable and satisfactory projectionist at all times. Claimant last worked on December 6, 1958. He did not report for work thereafter as the regular projectionist returned to seven nights a week schedule. Under such circumstances, it is the belief of the Commission that claimant voluntarily left his work as the union, through its agent, authorized the regular projectionist to return to the seven night week and, thereby, withheld the services of the claimant to the employer. The evidence does not show that the claimant's separation or leaving the work was for a good cause attributable to his work or to his employer. Under such circumstances, the Commission finds that the claimant left his work voluntarily on December 6, 1958, without good cause attributable to his work or to his employer.'

The cause was appealed to the Circuit Court of Jasper County where it was heard and the judgment of the Industrial Commission reversed. The memorandum opinion of the court is as follows:

'The Court finds that the findings and decision of the Industrial Commission of Missouri in this case are inconsistent with the law and are not supported by competent and substantial evidence.

'The Commission has overlooked the fact that while there was only a one man job involved, that job for a number of months became a two man job with Rouse working a majority of the time and Kilgore working the remainder of the time; also, the Commission either overlooked or failed to consider the undisputed fact that the reason for Kilgore's elimination as an employee was the fact that he refused to be a party to an illegal arrangement proposed by the manager of the Tri-State Drive-In Theatre concerning pay and because he failed to go along with such plan Rouse decided he would work straight time. Whether Rouse took over the work previously performed by Kilgore or whether some other person would have taken it over who was agreeable to the arrangement proposed by the manager of the Tri-State Drive-In Theatre, Kilgore was forced out of work although he was available, ready and willing to work.

'This Court is of the opinion that the Commission erred in its ruling that the business agent of the Union was the agent for the employee. This Court rules that by the Union contract the employer delegated to the Union the selection of its (Tri-State Drive-In Theatre's) employees and that the Union was, in fact, the agent of the employer.'

Claimant, Lon W. Kilgore, and Paul R. Rouse were both long time members of Local Union No. 465. Employer, Tri-State Drive-In Theatre, signed an agreement with the Motion Picture Operators' Local No. 465 whereby it was agreed that the Union would furnish employer with a projectionist. Rouse had been filling this job at the direction of the Union for approximately ten years. In July, 1958, employer was informed by Rouse that for an indefinite time he would work only six days a week. In July, 1958, and continuing through December 6, 1958, a relief projectionist, claimant, was furnished by the Union to work each Saturday night and also worked for periods of three, four and five days during one week while Rouse was off. The evidence shows that employer needed only one projectionist.

Claimant testified that he last worked for Tri-State Drive-In Theatre on the night of December 6th; that he went there some time in July and had worked about seven months in 1958. He gave this testimony:

'Q. And was this regular employment? Did you work so many days a week? A. Well, I worked whenever he wanted me to work.

'Q. Who is he? A. Well, the operator whenever he wanted to lay off.'

Witness stated that he worked regularly on each Saturday. He testified:

'Q. What happened that you did not work there the following Saturday, which would have been December 13? A. Mr. Rouse called me and told me he didn't want to lay off. He called me at 9:30 in the morning December 13.

'Q. Did Mr. Rouse call you when you were needed or did someone else call? A. Mr. Rouse wanted me to start to work; he wanted to lay off. Mr. Rouse was to let me know when he wanted off, but he wanted off every Saturday and sometimes he would lay off three, four, five days.

'Q. What did Mr. Rouse tell you on December 6, 1958 about working the following Saturday? A. The following Saturday morning, the 13th, he called me. It wasn't the 6th, the 13th he called me and told me he was going to work.

'Q. How about the next Saturday, the following Saturday, the 20th, did you report then? A. I was out there--Mr. Wilson had me to go out but he didn't want me to work.'

The evidence shows that Wilson was the business agent of the Union and claimant testified that Wilson sent him to see if Rouse was working. He testified that he went out to the theatre on the 20th, at the request of Wilson, to find out if Rouse wanted him to work; that Rouse told him he was working and claimant testified that he did not go out on Saturday, December 27th. He gave this answer: 'No, I didn't go out there then. I told him, 'Call the business agent anytime you want me now.' He said, 'Well, I won't use you any more.''

The witness stated: 'When he laid off that it when I was supposed to work, and I did not know unless he told me, sir.'

Claimant testified that his working arrangements were handled through the business representative of the Union; that Rouse had asked him to work for him, stating that he was going to lay off on every Saturday and some other days; that he asked Mr. Wilson who said, 'That is the thing to do, * * * we have to go through the business agent.'

Claimant received his pay checks from Tri-State Theatre up until November 27th; the last two checks he received were paid by Rouse. These checks were for work done November 27th and December 6th. Claimant testified that Walters asked him when he went after his check, 'How about me putting all that on Paul Rouse's check and him paying you?' Claimant stated he said, 'I don't know, I will see about it and find out.' He stated that before he had time to find out they had made the change. The evidence shows that claimant went to the Internal Revenue office to seek information about withholding tax on his pay which made him pay twice. He stated he told Rouse that it was not right for Rouse to pay him and that Rouse stated 'That is the way Walter is going to have it.' He said, 'It is that or else.' I said, 'Well, I have got to work, and I worked.'

Paul R. Rouse testified that he and claimant, Kilgore, were members of the same Union; that he made arrangements with the Union and Kilgore to work at the Tri-State Drive-In Theatre on a substitute basis; that Kilgore simply took his place while he was off duty with the sanction of the...