Mills v. Carthage Marble Corp.

• Decision Date: 05 February 1937
• Parties: H. F. MILLS, APPELLANT, v. CARTHAGE MARBLE CORPORATION, (EMPLOYER), MARYLAND CASUALTY COMPANY (INSURER), RESPONDENT
• Court: Missouri Court of Appeals

102 S.W.2d 769

231 Mo.App. 334

H. F. MILLS, APPELLANT, v. CARTHAGE MARBLE CORPORATION, (EMPLOYER), MARYLAND CASUALTY COMPANY (INSURER), RESPONDENT

Court of Appeals of Missouri, Springfield

February 5, 1937

Rehearing denied February 24, 1937.

Appeal from Circuit Court of Jasper County.--Hon. Wilbur J. Owen Judge.

AFFIRMED.

Judgment affirmed.

Wright Rogers & Margolin for appellant.

James D. Reeves for respondents.

SMITH, J. Allen, P. J., and Fulbright, J., concur.

OPINION

SMITH, J.--

This appeal is from the denial of compensation under the Missouri Workmen's Compensation Act to the claimant, H. F. Mills.

He was injured May 29, 1934, in Arkansas on Highway 100, a short distance south of the Missouri-Arkansas State line. He was driving an automobile belonging to the employer, Carthage Marble Corporation, on company business, at the time of his injury, when the automobile was struck on the highway by a large truck. Claimant was severely injured, the injuries being to his left femur which was broken, resulting in imperfect union, left fibula out of joint, knee joint injured and movement impaired, region of knee cut, left leg shortened and weakened, left shoulder broken and movement impaired, left arm weak and atrophied, brain concussion, skull fractured, face and nose broken, eyesight impaired, chest and lungs injured. The extent of his permanent partial disability was reserved for later determination, temporary total disability having been conceded of record by respondents.

The place of employment was Carthage, Jasper County, State of Missouri, where claimant Mills lived and where Carthage Marble Corporation had its office and place of business. Maryland Casualty Company, one of the respondents, was the insurer and the policy of insurance introduced in evidence as Claimant's Exhibit "C" was in force and effect at the date of injury.

The employer and insurer were duly and promptly notified of the accident and injury. Claim was duly filed on November 28, 1934. The claim was heard by Referee R. S. McClintic, at Joplin, Missouri, February 21, 1935. On March 12, 1935, said referee found in favor of the employer and insurer and against claimant, denying his right to compensation. The full commission on review heard oral arguments on May 6, 1935, and on June 27, 1935, made final award denying compensation to the claimant, Commissioner JAY J. JAMES dissenting on the ground that the claimant was an employee for the reason that he was not under contract of employment for a definite period of one full year or more. Claimant duly appealed to the Circuit Court of Jasper County, where the matter was argued before Honorable WILBUR J. OWEN, Judge of Division 2 of said court, who on November 2, 1935, affirmed the award of the commission denying compensation to the claimant. On November 2, 1935, the claimant's appeal herein to this court was allowed by the Jasper County Circuit Court.

All proof in this proceeding was adduced by the claimant, none having been offered by the employer or insurer. The question in controversy is whether the facts so established by claimant, legally entitle him to compensation. The employer and insurer contend those facts show the claimant was not an employee within the terms of the Compensation Act, because he was paid in excess of $ 3600 during the year preceding his injury. The claimant asserts he was an employee within the terms of the act, because he was employed not for a term of one full year or more at a fixed compensation of more than $ 3600 per year, but for an indefinite time terminable at will by the board of directors of Carthage Marble Corporation.

Claimant was at the time engaged in his work as a salesman for the employer, Carthage Marble Corporation. He did what is known as salesman's work for Carthage Marble Corporation, which consisted of promoting its products, attending lettings and bidding the work in, at certain times following the work through and making collections, but his chief duties and activities were in selling the marble produced by his employer. His work was out of the office most of the time, taking him away from Carthage, Missouri. He was vice-president and sales manager of Carthage Marble Corporation. His compensation covered all those duties. He started work as sales manager and did not become vice-president until 1931. His compensation was increased and then diminished following the year 1931, and another reduction was made in November, 1932. When he became vice-president of the company there was no change in the amount of his compensation. At a later time, his compensation was increased, but in November, 1932, it was reduced to $ 506 per month, and remained at that amount when he was injured--and thereafter. Appellant worked for no other company, but devoted his entire time to Carthage Marble Corporation. He had no office hours, but worked day and night as his duties required. His duties were not increased when he became vice-president.

It is conceded by all parties to this litigation that the only question before us is whether the claimant comes under the provisions of the Workmen's Compensation Law so as to entitle him to benefits, or whether he is excluded because of his compensation being in excess of three thousand six hundred dollars as provided by Section 3305, Revised Statutes 1929, Mo. Stat. Ann., p. 8238. The pertinent part of this section is:

"Sec. 3305--CERTAIN TERMS OF ACT DEFINED--(a) the word 'employee' as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written, or under any appointment or election, but shall not include persons whose average annual earnings exceed three thousand six hundred dollars, . . ."

It is the contention of the claimant that at the time of his injury he was not employed by the Carthage Marble Corporation for any definite time, and that his employment was terminable at will by the employer, therefore his was not a contract of employment for one full year or more at a fixed salary for such period in excess of $ 3600 and that he was not excluded from the benefits of the Compensation Act by the provisions of the above quoted section 3305.

He bases his contention almost exclusively upon the wording of said section, and upon a recent decision of the Supreme Court in the case of Klasing v. Fred Schmitt Contracting Company, 73 S.W.2d 1011.

Of course if the facts in this case are sufficiently similar to the facts in the Klasing case to bring the case within the rule determined by the Supreme Court, there is no question as to our conclusions here, for we are bound by the latest holding of the Supreme Court. It is not necessary for us to recite here the facts in the Klasing case, for the parties to this litigation are familiar with them. We have read them. The inquiring mind may turn to 73 S.W.2d 1011, and ascertain what the facts are there. It is sufficient for us to say that we think the facts in the instant case are so different from those in the Klasing case, that we cannot reach the conclusion here that the claimant comes within the provisions of the compensation act so as to entitle him to recover.

Let us look again at the provisions of Section 3305, supra. This section in very plain words sets out what the word "employee" means, and then it says "but shall not include persons whose average annual earnings exceed three thousand six hundred dollars." (Italics ours.)

Keeping in mind the provisions of the above section, let us look a bit to the facts in this case as furnished by the claimant. (There being no evidence offered by the respondents.)

As we understand the above section, it does not stress the kind of a contract of employment. It says "under any contract of hire." It also expressly excludes persons whose average annual earnings exceed three thousand six hundred dollars. We think the evidence in this case shows that at the time of the injury there was a contract of hire either express or implied, existing between the claimant and the employer. There is no contention that there was no contract. The contention is that there was no contract for a definite term of one full year or more.

As we view the statute, in the light of the construction placed thereon in the Klasing case, we think the question for determination is whether the claimant's average annual earnings exceed $ 3600.

There was no question at all but that the claimant had been working for the employer for several years prior to his injury. He began his employment in 1926 under a written contract of hire whereby he received $ 6500 per year. He was under continuous employment from 1926 up to the date of his injury. On November 17, 1932, his compensation was fixed by the board of directors of the company at $ 6072, per year, and this compensation continued until his injury, and that was as small compensation as he received at any time since 1926. Some of the time he received more, but never less than $ 6072 per year. He worked continuously through these years and received his pay regularly. At no time was his annual earnings as small as $ 3600, and in fact at no time was his annual earnings as small as $ 6000. In this respect are the facts entirely different from the facts in the Klasing case. In that case, the court considered Klasing's earnings for the three years prior to his injury. In only one of those years did his earnings pass $ 3600, and for the other years his earnings were considerably under $ 3600, so as to make his average annual earnings less than $ 3600. And then, too Klasing was a bricklayer and worked and was paid by the hour, and at no time was he employed except when called for certain jobs. ...