McClintock v. Skelly Oil Co.

• Decision Date: 18 March 1938
• Docket Number: No. 19018.,19018.
• Citation: 114 S.W.2d 181
• Parties: ANNA E. McCLINTOCK, RESPONDENT, v. SKELLY OIL COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

114 S.W.2d 181

ANNA E. McCLINTOCK, RESPONDENT, v. SKELLY OIL COMPANY, APPELLANT.

No. 19018.

Kansas City Court of Appeals. Missouri.

March 18, 1938.

Appeal from the Circuit Court of Jackson County. — Hon. Ben Terte, Judge.

AFFIRMED.

R.J. Holmden for respondent.

Cave & Hulen, C.L. Swim, Cliff V. Perry and Mosman, Rogers, Bell & Buzard for appellant.

REYNOLDS, J.

This is an appeal by the Skelly Oil Company, appellant-employer, from the decision of the circuit court of Jackson County, Missouri, approving and affirming an award of the Workmen's Compensation Commission in favor of the respondent-claimant.

The claimant's husband, Theodore E. McClintock, died on January 18, 1936, as a result of injuries accidentally sustained by him in the course of his employment with the appellant-employer, when a truck which he was operating accidentally ran into a bridge on a public highway about four miles east of Durant, Oklahoma.

Claim for compensation was filed by the claimant, Anna E. McClintock, before the Workmen's Compensation Commission of Missouri on March 19, 1936.

The answer of the appellant-employer was filed on March 28, 1936, wherein it was denied that it was liable for compensation under the Workmen's Compensation Law of Missouri, because, by the contract of employment, it was provided that the Workmen's Compensation Law of Missouri should apply to the injury or death of the employee (McClintock) only if such injury or death occurred in Missouri, and that, if such injury or death occurred elsewhere than in Missouri, then the laws of the State where such injury or death occurred should govern the rights of the parties and that, under Section 3310, Revised Statutes of Missouri, 1929, such a contract was authorized and, as the injury resulting in the death of McClintock occurred in the State of Oklahoma, the Missouri Workmen's Compensation Commission was without jurisdiction to make an award of compensation.

An amended answer to the claimant's claim for compensation was filed with the commission on March 28, 1936, wherein it was set up that the State of Oklahoma had a Workmen's Compensation Law designated as Chapter 72. Sections 13348-13404. Oklahoma Statutes of 1931, entitled "Workmen's Compensation Law," which had been made a part of the contract of employment between the deceased and the appellant-employer, of the existence and provisions of which the commission was asked to take judicial notice.

Hearing of the claim for compensation was held before Commissioner Orin H Shaw on April 30, 1936, in Kansas City, Jackson county, Missouri. The claim was heard on original and supplemental statements of facts, the original of which is fully set forth in the Appellant's Abstract of the Record at pages 10, 11, and 12 and the supplemental at pages 12 and 13.

The original is as follows:

"1. That an employment contract as set forth in photostatic copy marked Exhibit `A' attached to employer's answer herein, was made on August 24, 1932, in Kansas City, Jackson County, Missouri.

"2. That from the date said employment began on August 24, 1932, until December 31, 1933, deceased employee performed the duties of his employment as construction foreman in the States of Missouri, Kansas and Iowa; that since March 29, 1934, deceased had been continuously employed in Oklahoma at the same duties as foreman of construction; that the salary checks for deceased employee in the amount of One Hundred and Twenty-five Dollars ($125.00) each, were issued each month at Tulsa, Oklahoma, forwarded to the Kansas City, Missouri, office of employer and thereafter forwarded to deceased; that deceased employee during all of the time of his said employment in Oklahoma received his instructions and directions from his superior at the Tulsa, Oklahoma office and that all reports of expenditures by him were made to his superior at the Kansas City, Missouri, office and the checks in reimbursement for such expenditures (whether for personal expenses of deceased or expenditures for labor and material in connection with construction projects) were sent him from the Kansas City, Missouri, office of employer. Reports of work performed were made to the offices of employer at Tulsa, Oklahoma, and Kansas City, Missouri.

"3. That the deceased employee met his death by accident January 18, 1936, while driving a truck on a highway about four miles east of Durant, Oklahoma.

"4. That insofar as this claim before the Workmen's Compensation Commission is concerned, the parties agree that deceased employee's fatal accident arose out of and in the course of his employment with this employer.

"5. That at all times mentioned herein, employer was operating under the authority of a self insurance permit issued by the Missouri Workmen's Compensation Commission.

"6. That at all times mentioned herein, deceased employee had not made or filed an election to reject the Missouri Workmen's Compensation Law.

"7. That employer is properly authorized to, and does conduct its business in a number of states of the Union and that in each of said states it enters into employment contracts identical to the one referred to herein, save and except that the state in which such contract is made is named in the contract in the place therein where Missouri is named in the instant case; that such employees are sometimes employed in Missouri and transferred elsewhere and in other cases employed in other states and later transferred to Missouri or some other than the one in which employed.

"8. That Anna E. McClintock is the widow of Theodore E. McClintock, deceased, and is the sole and only person who was a total dependent at the time of his death; that deceased was not survived by any children, natural or adopted.

"9. That the sole questions herein are:

"a. Whether under the Missouri Workmen's Compensation law, the employment contract of August 24, 1932, and the fatal accident to deceased in Oklahoma, there is any liability of employer under the provisions of the Missouri Compensation law.

"b. Whether under said facts herein stipulated the Workmen's Compensation Commission has authority and jurisdiction to make an award of compensation in said cause.

"c. What amounts are proper to be considered as earnings of deceased employee as a basis for the determination of the amount of compensation liability, if any."

The supplemental is as follows:

"That deceased employee maintained a home in Kansas City during all of the time herein mentioned, and that for such days as he was away from his home in Kansas City and engaged in the duties of his employment he incurred an average expenditure of $3.00 per day, representing three meals at 50c each, and a hotel room at $1.50, for which expenditures by him he was re-imbursed by the employer; that the deceased employee submitted reports of such expenditures weekly on which were included the items above mentioned in addition to expenditures made for railroad fare, telephone calls, stamps, cost of maintaining the truck owned by employer which was under his custody and control, and other similar expenses, for all of which said employee was re-imbursed by employer; that the number of days in the year preceding the fatal injury sustained by this employee during which he was away from his home was 330. It is the contention of claimant herein that such expenditures for room and meals made by deceased employee, for which he was reimbursed by employer, should be considered as earnings in addition to the sum of $125.00 per month; on the other hand, it is the contention of employer that such payment for room and meals was merely additional expense entailed by his employment, for which he was reimbursed by employer and which did not represent additional earnings."

On July 6, 1936, Commissioner Shaw handed down his findings of fact and rulings of law and made an award in favor of the claimant as a dependent of the deceased employee (McClintock), for burial expenses of the deceased in the sum of $150.00 and for death benefits in the sum of $19.23 per week for 300 weeks (beginning January 18, 1936) or until prior death or remarriage.

Application for review of the award before the full commission was made by the appellant-employer, which application was granted; and, on review by the full commission, said award of Commissioner Shaw, on November 25, 1936, was affirmed by a vote of two members of the commission, one dissenting. The appellant-employer appealed from the award of the commission to the circuit court of Jackson county; and the record in the cause before the commission, including all documents and papers on file in the cause and a transcript of the evidence and the findings and the award under the certificate of the commission, was returned to the circuit court of Jackson county and filed therein.

On March 2, 1937, the appeal was heard upon said record in the circuit court of Jackson county, Missouri, by the Honorable BEN TERTE, judge; and said findings, decision, and award of the Workmen's Compensation Commission were affirmed by that court. The appellant-employer now appeals from the judgment, decision, and decree of the circuit court of Jackson county, Missouri, affirming the final award of the Workmen's Compensation Commission.

The contract of employment between the employee (McClintock) and the appellant-employer, which was signed by both, provides as follows:

"1. Contract made this 24 day of Aug. 1932, by and between T.E. McClintock, hereinafter designated as Employee, and SKELLY OIL COMPANY, hereinafter designated as Employer.

"2. Said Employee has this day entered the employ of the said Employer to work for said Employer from day to day in such capacity and in such manner as said Employer may from time to time direct, with compensation at the rate of $125.00 per month and ____, subject to change without notice by the Employer effective at the date stated in such notices. It is agreed that such compensation shall be paid monthly.

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