Loudenslager v. Gorum

• Citation: 195 S.W.2d 498,355 Mo. 181
• Decision Date: 10 June 1946
• Docket Number: 39532
• Parties: Ruby O. Loudenslager and Charlotte Loudenslager v. Jack Gorum and National Mutual Casualty Company, Appellants
• Court: Missouri Supreme Court

195 S.W.2d 498

355 Mo. 181

Ruby O. Loudenslager and Charlotte Loudenslager v. Jack Gorum and National Mutual Casualty Company, Appellants

No. 39532

Supreme Court of Missouri

June 10, 1946

Rehearing Denied July 8, 1946.

Appeal from Cedar Circuit Court; Hon. O. O. Brown, Judge.

Affirmed.

Dale Tourtelot, Joseph N. Hassett and Ernest E Baker for appellants.

(1) Where a suit is prosecuted to final judgment in one state and thereafter a suit is brought in another state on the same cause of action, the final judgment in the first action is res judicata as to the issues in the second action under Article IV, Section 1, of the Constitution of the United States. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430; Baltimore S.S. Co. v. Phillips, 274 U.S. 316; United States v. Moser, 266 U.S. 236. (2) Where a suit is prosecuted to final judgment in one state and thereafter a suit is instituted in another state between the same parties on a different cause of action, those issues presented to and decided by the Court in the first action btween the parties is res judicata in the second action under Article IV, Section 1, of the Constitution of the United States. Chicago, R.I. & P. Ry. v. Schendel, 270 U.S 611; United States v. Moser, 266 U.S. 236. (3) The claim prosecuted by claimant in Arkansas terminated in a final award prior to the award entered by the Mo. Workmen's Compensation Commission in the claim prosecuted in Missouri by claimant, and both claims were on the same cause of action, and the final Arkansas award deprived the Missouri Workmen's Compensation Commission of authority and jurisdiction to enter an award granting claimant compensation. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430; Baltimore S.S. Co. v. Phillips, 274 U.S. 316. (4) If the claim prosecuted in Arkansas and the claim prosecuted in Missouri were upon different causes of action, the finding by the Arkansas Workmen's Compensation Commission that claimant's deceased husband was an independent contractor and not an employee and that the contract under which he was working at the time of his death was entered into in the State of Arkansas were res judicata, under Article IV, Section 1, of the Constitution of the United States, and deprived the Missouri Workmen's Compensation Commission of the right, authority and jurisdiction to find that the claimant's deceased husband was an employee of the employer and that the contract of employment under which claimant's deceased husband was working was entered into in the State of Missouri. Chicago, R.I. & P. Ry. v. Schendel, 270 U.S. 611; United States v. Moser, 266 U.S. 236. (5) The final award of the Arkansas Workmen's Compensation Commission is res judicata, under Article IV, Section 1, of the Constitution of the United States, even though the award denied compensation to claimant. U.S. v. California & Oregon Land Co., 192 U.S. 355; Werlein v. New Orleans, 177 U.S. 390. (6) The attempted dismissal of the action before the Arkansas Workmen's Compensation Commission by claimant did not deprive the Arkansas Workmen's Compensation Commission of jurisdiction to enter an award on the merits, and did not render the final award of the Arkansas Workmen's Compensation Commission void. Act No. 319, General Assembly Ark. 1939, Sec. 19(d); Sec. 19(h); Sec. 23 (c); Krisman v. Unemployment Comp. Comm., 171 S.W.2d 575; State ex. rel. v. Wurdeman, 309 Mo. 341, 274 S.W. 380. (7) Whether claimant's attempted dismissal deprived the Arkansas Workmen's Compensation Commission of jurisdiction was presented to and decided by the Arkansas Workmen's Compensation Commission. Claimant was afforded an opportunity to be heard and to introduce her evidence or advance and urge her theory of the law, and this issue, having been heard and determined by the Arkansas Workmen's Compensation Commission, is final and binding on claimant and res judicata in the action before the Missouri Workmen's Compensation Commission. Chicot County Dist. v. Bank, 308 U.S. 371; Stoll v. Gottlieb, 305 U.S. 165; Hall v. Wilder Mfg. Co., 293 S.W. 760; Ederheimer v. Carson Dry Goods Co., 152 S.W. 142. (8) The Arkansas Commission had right and authority to examine the Compensation Act and determine its jurisdiction, and its finding is binding on the courts of Missouri. Laing v. Rigney, 160 U.S. 542; Stoll v. Gottlieb, 305 U.S. 165; Chicot County Dist. v. Bank, 308 U.S. 371; McLain v. Parker, 129 P. 1141. (9) There is not sufficient competent evidence to support an award of compensation on the theory that claimant's deceased husband was an independent contractor engaged on or about the premises of the employer. Rutherford v. Tobin Quarries, 82 S.W.2d 918; State ex rel. v. Fulbright, 169 S.W.2d 59. (10) The claim filed before the Missouri Workmen's Compensation Commission sought compensation on the ground that claimant's deceased husband was an employee, under a contract of hire with the employer, and that the contract of hire was entered into in Missouri, and this court should decide the case on the same theory. Toroian v. Parkview Amusement Co., 331 Mo. 700, 56 S.W.2d 134; Allen v. Mo. Pac. Ry. Co., 294 S.W. 80; Saunders v. Shaw, 244 U.S. 317; Standard Oil Co. v. Missouri, 224 U.S. 270. (11) There was not sufficient competent evidence that the alleged insurer insured the liability of the employer under the Missouri Workmen's Compensation Act. Perry v. J. A. Kreis & Son, 49 S.W.2d 220; Roach v. Durham Const. Co., 62 S.W.2d 593; Salkind v. Pennsylvania Threshermen's Ins. Co., 7 A.2d 301; Federal Underwriters Exchange v. Doyle, 110 S.W.2d 618.

Lawrence E. Goldman, E. H. Gamble, and Sam Mandell for respondents.

(1) The effect which the court of Missouri shall give to the award of the Arkansas Workmen's Compensation Commission denying compensation is primarily a question for the Missouri courts, and whether enforcement of the Arkansas award runs counter to Missouri domestic policy is exclusively for the decision of the Missouri courts. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092; Yellow Cab Transit Co. v. Overcash, 133 F.2d 228. (2) Since the deceased met with fatal injuries in an accident arising out of and under the course of his employment under a contract made in Missouri, by the public policy of Missouri, its Compensation Commission and courts, to the exclusion of all other bodies and courts, were vested with the sole power to determine rights to compensation because of his death. Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330, certiorari denied Gluck v. Kemper, 284 U.S. 649, 52 S.Ct. 29; Sec. 3700(b), R.S. 1939. (3) The award of the Arkansas Workmen's Compensation Commission denying compensation is not to be made a judgment of the Missouri courts under the full faith and credit clause of the Constitution, because it runs contrary to the public policy of Missouri. Williams v. North Carolina, supra; Secs. 3722, 3723, R.S. 1939. (4) The Arkansas Workmen's Compensation Commission had no jurisdiction of the subject matter or the parties. Williams v. North Carolina, supra; Secs. 18, 19, 20, 23, 25, Ark. Compensation Act. (5) It does not adjudicate the same rights which were adjudicated by the Missouri Compensation and could not have adjudicated them. National Surety Co. v. Jenkins, 18 F. 707; Jenkins v. National Surety Co., 277 U.S. 258, 48 S.Ct. 445; Northwestern Port Huron Co. v. Babcock, 224 F. 479; Haines v. Welker & Co., 182 Iowa 431, 165 N.W. 1027; Kern v. Wilson, 82 Iowa 407, 48 N.W. 919; Brury v. Smith, 8 Kan.App. 52, 53 P. 74; O'Meara v. McDermott, 43 Mont. 189, 115 P. 912; Sweet v. Tuttle, 14 N.Y. 465; McGee v. Wineholt, 23 Wash. 748, 63 P. 571; American Surety Co. v. White, 142 Va. 1, 127 S.E. 178; 34 C.J., sec. 1336, p. 330. (6) The award of the Arkansas Workmen's Compensation Commission denying compensation under the laws of that state does not bar the entry of an award allowing compensation by the Missouri Commission, growing out of a contract of employment made in this state. Magnolia Pet. Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208; Alaska Packers Assn. v. Industrial Accident Comm., 294 U.S. 532, 55 S.Ct. 518, 80 L.Ed. 1044; Pacific Employers' Ins. Co. v. Industrial Accident Comm., 306 U.S. 493, 59 S.Ct. 629, 83 L.Ed. 940. (7) The Commission's finding that the deceased was an employee of appellant Jack Gorum is based on adequate, competent evidence. Hoelker v. American Press, 296 S.W. 1008; Margolis v. Natl. Enameling Co., 23 S.W.2d 1049; Maltz v. Jackoway-Katz Co., 82 S.W.2d 909; Donohue v. Adams Trf. Co., 88 S.W.2d 432; Herrington v. Hoey, 139 S.W.2d 477; Mattoon v. Hoover Co., 166 S.W.2d 557; Smith v. Fine, 175 S.W.2d 761. (8) There was sufficient evidence that the insurer insured the liability of the employer under the Missouri Workmen's Compensation Act. Secs. 3713, 3716, 6014, R.S. 1939; J.C. Smith Co. v. Prussian Natl. Ins. Co., 54 A. 458; Queens Ins. Co. v. Hartwell, 68 S.E. 310; Lipman v. Niagara Ins. Co., 24 N.E. 699; Hicks v. British, Inc. Co., 56 N.E. 743; Ramey v. Broady, 272 S.W. 740; Duff v. Fire Assn., 30 S.W. 1034; McNabb v. Niagara Ins. Co., 22 S.W.2d 364; Foursha v. American Ins. Co., 34 S.W.2d 552; Robinson v. Franklin Ins. Co., 35 S.W.2d 635; Meier v. Eureka, Ins. Co., 168 S.W.2d 127; Allen v. Rafftery, 237 Mo.App. 542, 174 S.W.2d 345; 29 Am. Jur. 158, sec. 143.

OPINION

Hyde, J.

This is a Workmen's Compensation case. Claimants, widow and minor daughter of Guy Loudenslager, deceased, had an award of $ 9,521.00 for his death. Defendants, found to be the employer and insurer, have appealed from a judgment affirming this award.

On June 18, 1941, Loudenslager, while driving his truck in the service of Gorum, was killed in a collision with another truck near Pine Bluff, Arkansas. Gorum had a trucking business, called Arkansas Traveler Truck Lines, with...