Payne v. St. Louis Grain Corp.
| Decision Date | 20 December 1977 |
| Docket Number | No. 38705,38705 |
| Citation | 562 S.W.2d 102 |
| Parties | Norvel Ray PAYNE, Respondent, v. ST. LOUIS GRAIN CORP., Respondent, and Commercial Union Insurance Co., Appellant, and Westchester Fire Insurance Co., Respondent. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Robert R. Schwarz, St. Louis, for appellant.
George D. Chopin, St. Louis, Alfred Hoffman, Columbia, Edward M. Vokoun, St. Louis, for respondents.
A workmen's compensation case involving a dispute as to coverage by two insurance carriers. St. Louis Grain Corporation, the employer, was insured by two valid workmen's compensation policies. One was with Westchester Insurance Company (hereinafter Westchester) which carried workmen's compensation insurance coverage on any injuries construed to be compensable under the Illinois Workmen's Compensation Act. The other was an assigned risk workmen's compensation policy with Commercial Union Insurance Company (hereinafter Commercial) for injuries compensable under the Missouri Workmen's Compensation Law. Appellant Commercial Union appeals from the finding below that it was the insurer of the risk which occurred in East St. Louis, Illinois and resulted in claimant's injury.
Claimant Norvel Ray Payne resided in the City of St. Louis in October of 1973. A friend who worked for St. Louis Grain Company suggested that Payne go to Elevator A on East Grand in the City of St. Louis to obtain employment. At the office in St. Louis Payne spoke to a Mr. George Spafford, the general superintendent, and there filled out a job application. Spafford told Payne he would call him at home if he needed him, and that evening Spafford called Payne and told him to meet him at the East St. Louis elevator the following day. Payne met Spafford in East St. Louis that day and started working. His work consisted of cleaning the area and greasing machines.
On October 12, Payne was working at the same elevator in East St. Louis, cleaning out bins. He fell a distance of 40-50 feet, hit his head against the concrete sloped wall of the bin, lost consciousness, and was dragged out from the bin.
Following a hearing before the Division of Workmen's Compensation, the Referee made 4 findings: 1) claimant was hired in Missouri, 2) the insurance policy of Commercial included coverage for this injury notwithstanding the fact that it occurred in Illinois, 3) the employee was entitled to an award for disability in the amount of $12,500 due from Commercial, and 4) Westchester, which also insured St. Louis Grain Corporation, was to be reimbursed by Commercial for the $5,208.05 that it mistakenly paid claimant Payne in temporary benefits and medical expenses.
The Industrial Commission affirmed the referee's finding in all respects except disallowed the reimbursement, finding that neither the referee nor the commission had the power to make such an order.
Upon appeal to the Circuit Court of the City of St. Louis, the Commission's award was affirmed and modified by adding to the award the sum of $3,166.85 for medical aid for the employee.
Respondents Westchester and Norvel Payne both move that we dismiss this appeal. Payne and Westchester assert that appellant Commercial has failed to comply with Supreme Court Rule 84.04(c), because its brief does not contain "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Westchester alone also claims appellant is in violation of Rule 84.04(h) because the argument portion of his brief does not contain "specific page references to the transcript on appeal." This motion is denied.
However, this court concludes that four of appellant's points relied on preserve nothing for our review. We dismiss these four points. 1
The first remaining reviewable point concerns appellant's claim that it is not liable for the employee's award because its policy specifically excluded coverage of any accident occurring outside Missouri. Before discussing this issue, we point out that our standard of review is limited to surveying the whole record to see if there is competent and substantial evidence to support the decision of the Commission. We can set aside their ruling only if it is clearly contrary to the overwhelming weight of the evidence. Deatherage v. Churchill Truck Lines, Inc., 469 S.W.2d 660, 661(2) (Mo.App.1971).
Section 287.110(2) states, inter alia, that Missouri Workmen's Compensation Law applies to "all injuries received and occupational diseases contracted outside of this state under contract of employment made in this state." (Emphasis added). And the Commercial insurance policy in effect at the time of the injury specifically incorporated Missouri Workmen's Compensation Law, 2 as it was bound to do by our law, Section 287.310. 3
Accordingly, if the finding of the commission that the contract of employment was made in Missouri is supported by competent and substantial evidence, Payne is entitled to receive benefits from Commercial for the Illinois accident.
The test of determining where the relationship of employee and employer was created involves the intention of the parties as evidenced by their acts and conduct, the nature of the business, the situation of the parties and all the facts and circumstances. Hall v. Denver-Chicago International Inc., 481 S.W.2d 622, 625 (Mo.App.1972). Here several facts are significant in determining where the contract was made. These significant facts include: 1) St. Louis Grain had been strictly a Missouri operation until the very week that Payne began work, when it bought the East St. Louis elevator and for the first time began doing business in Illinois, 2) Norvel Payne applied for the job in Missouri by speaking with the supervisors at the Missouri office in St. Louis and filling out the job application there, 3) Superintendent George Spafford accepted Payne's application in St. Louis, and told Payne he would call him if he needed him. That night he called Payne at Payne's home in St. Louis and told him to begin work the following day in East St. Louis. Pursuant to Spafford's telephone call, Payne reported for work the following day in East St. Louis. Based on all the facts we believe the finding by the commission that Payne was hired in Missouri was supported by competent and substantial evidence. See, Daggett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W.2d 1036 (1933); Thacker v. Massman Construction Co., 247 S.W.2d 623, 629 (Mo.1952).
The next preserved point is that the circuit court erred in amending the award of the commission by adding to the award to employee the sum of $3,166.85 for medical aid. It is undisputed that Westchester paid $2,041.20 for the employee Payne's temporary total disability and $3,166.85 for his medical expenses, under the impression that they were liable for these expenses. The referee determined that Commercial was to reimburse Westchester in the amount of $5,208.05. The commission found the order of reimbursement to be erroneous because not within the authority of the referee or the commission, based on Harris v. Pine Cleaners, 296 S.W.2d 27, 30 (Mo. banc 1956), but they affirmed the referee's determination in all other respects.
The employee moved the commission to modify its award by granting him $3,166.85 for his medical expenses, or to rehear the case.
The commission responded by informing him that the case had been appealed to the Circuit Court of St. Louis and the commission no longer had jurisdiction over the matter. Claimant thereafter filed his motion in the Circuit Court, asking the court to modify the commission's award in the amount of $3,166.85. The Circuit Court granted the motion.
Section 287.490(1) states that "The final award of the Commission shall be conclusive and binding unless either party shall . . . appeal to the Circuit Court . . . The court, on appeal, shall review only questions of law and modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:
3) That the facts found by the commission do not support the award."
Therefore, the statute specifically allows a modification of the award by the court. Baer v. City of Brookfield, 366 S.W.2d 469, 471(5) (Mo.App.1963...
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