Peerless Fixture Co. v. Keitel, No. 39495.

• Court: Missouri Supreme Court
• Writing for the Court: Barrett
• Citation: 195 S.W.2d 449
• Decision Date: 10 June 1946
• Docket Number: No. 39495.,No. 39496.
• Parties: PEERLESS FIXTURE COMPANY, a Corporation, v. ELMER JOHN KEITEL, SR., GEORGE A. ROZIER, and HARRY P. DRISLER, Members of the UNEMPLOYMENT COMPENSATION COMMISSION OF MISSOURI, Appellants. CONRAD SHOWER v. ELMER JOHN KEITEL, SR., GEORGE A. ROZIER, and HARRY P. DRISLER, Members of the UNEMPLOYMENT COMPENSATION COMMISSION OF MISSOURI, Appellants.

195 S.W.2d 449 PEERLESS FIXTURE COMPANY, a Corporation,
v.
ELMER JOHN KEITEL, SR., GEORGE A. ROZIER, and HARRY P. DRISLER, Members of the UNEMPLOYMENT COMPENSATION COMMISSION OF MISSOURI, Appellants. CONRAD SHOWER
v.
ELMER JOHN KEITEL, SR., GEORGE A. ROZIER, and HARRY P. DRISLER, Members of the UNEMPLOYMENT COMPENSATION COMMISSION OF MISSOURI, Appellants. No. 39495. No. 39496. Supreme Court of Missouri. Division Two, June 10, 1946. Rehearing Denied, July 8, 1946.

[195 S.W.2d 450]

Appeal from Cole Circuit Court. — Hon. C.H. Jackson, Special Judge.

AFFIRMED AS TO RESPONDENT PEERLESS FIXTURE COMPANY, AND REVERSED AND REMANDED AS TO RESPONDENT CONRAD SHOWER.

Michael J. Carroll, Chief Counsel, Charles F. Moseley and John L. Porter, Assistant Counsel, for appellants.

(1) The Supreme Court has jurisdiction of this cause, because the members of the Unemployment Compensation Commission are parties hereto in their official capacities as state officers. Murphy v. Hurlbut Undertaking & Embalming Co., 346 Mo. 405, 142 S.W. (2d) 449; Trianon Hotel Co. v. Keitel, 169 S.W. (2d) 891. (2) The court erred in considering and ruling on a question of whether or not the Commission had the right to reconsider and set aside its aproval of respondents' (Peerless Fixture Company, Inc.) application for termination of coverage. Sec. 9432B, R.S. 1939, as amended in 1943; Unemployment Compensation Commission's Regulation No. 58; Commerce Clearing House, Unemployment Insurance, Vol. 4, Missouri, Section 5358, p. 28,381; Denny v. Guyton, 40 S.W. (2d) 562, 327 Mo. 1030. (3) The trial court erred in holding that having approved the written application for termination of coverage (of Peerless Fixture Company, Inc.); that the Unemployment Compensation Commission was without power, authority or jurisdiction to set aside its approval of said application for termination of coverage (of Peerless Fixture Company, Inc.), and that the order to that effect was a nullity. Sec. 9428 (b), R.S. 1939; Laws 1937, p. 574; Sec. 9426 (a), R.S. 1939; Laws 1937, p. 574; Westerman v. Supreme Lodge K.P., 196 Mo. 670, 94 S.W. 470, 5 L.R.A. (N.S.) 1114. (4) The trial court erred in holding that the decision (of the Commission in the matter of Peerless Fixture Company, Inc.) was beyond the powers and jurisdiction of the Commission, was not authorized by law, and was a nullity which should be vacated and held for naught. Section 9426A (d), R.S. 1939, as amended in 1941; Laws 1941, p. 566. (5) The trial court erred in declaring as a matter of law that there was no evidence of substantial probative force to support the following findings of fact of the Commission: "For all practical purposes, it (Peerless Fixture Company, Inc.) was a corporation in name only, and the business was conducted as though it was the personal business of Conrad Shower, the President of the corporation. Mr. Shower controlled the business and affairs of the corporation by legally enforceable means and otherwise, directly or indirectly." Kellogg v. Murphy, 164 S.W. (2d) 285, 349 Mo. 1165; Krisman v. Unemployment Comp. Comm., 351 Mo. 18, 171 S.W. (2d) 575; Haynes v. Unemployment Comp. Comm., 183 S.W. (2d) 77. (6) The trial court erred in holding that there was no evidence of substantial probative force to support the findings of the Commission that during the year 1938 the Peerless Fixture Company, Inc., alone had eight or more persons in employment for thirteen or more days, each day in a separate week. (7) The trial court erred in holding that there was no evidence of substantial probative force to support the finding of fact of the Commission that the Peerless Fixture Company, Inc., and Conrad Shower together had eight or more persons in employment for thirteen or more days, each day in a separate week, during the year 1938. Atkisson v. Murphy, 179 S.W. (2d) 27, 352 Mo. 644. (8) The trial court erred in holding that there was no evidence of substantial probative force to support the finding of fact of the Commission that Conrad Shower and Peerless Fixture Company, Inc., together had eight or more persons in employment for twenty or more days, each day in a different week in 1937. Section 9423 (g), R.S. 1939; Laws 1937, p. 574; Sec. 9423 (h) (1), R.S. 1939; Laws 1937, 574. (9) The trial court was in error in holding that the following findings of fact of the Commission were not supported by evidence of substantial probative force, and that the following conclusions of law were erroneous: "The Commission holds as a matter of law that Conrad Shower became an employer subject to the Missouri Unemployment Compensation Law for the year 1937 and that he has continued to be an employer subject to the Law for each year thereafter. Mr. Shower became an employer subject to the law with respect to the year 1937 by reason of the fact that his employment experience in 1937, together with that of the Peerless Fixture Company, Inc., was sufficient to cause him to become an employer under the provisions of Section 9423 (h) (4) as set out above." Sec. 9423, R.S. 1939; Laws 1937, p. 574; Krisman v. Unemployment Comp. Comm., 351 Mo. 18, 171 S.W. (2d) 575; Kellogg v. Murphy, 349 Mo. 1165, 164 S.W. (2d) 285. (10) The trial court was in error in holding that the following conclusions of law were erroneous: "Even if Mr. Shower had not become an employer in this manner, he would have become an employer under the provisions of Section 9423 (h) (2) as set out above on March 5, 1939, because he acquired the organization, trade and business of Peerless Fixture Company, Inc., an employer subject to the Law, on that date." Sec. 9423 (h) (2), R.S. 1939; Southern Photo & Blue Print Co. v. Gore, 173 Tenn. 69, 114 S.W. (2d) 796; Wiley Motors, Inc., v. Unemployment Comp. Comm. of New Jersey, 130 N.J.L. 30, 31 Atl. (2d) 39, affirmed 35 Atl. (2d) 894.

Edward K. Schwartz for respondents.

(1) The trial court ruled correctly in holding that, having approved the written application for termination of coverage (of Peerless Fixture Company, Inc.), the Unemployment Compensation Commission was without power, authority or jurisdiction to set aside its approval of said application for termination of coverage (of Peerless Fixture Company, Inc.), and that the order to that effect was a nullity. In re Buckles, 53 S.W. (2d) 1055, 331 Mo. 405; Soars v. Soars-Lovelace, Inc., 142 S.W. (2d) 866; Christian County v. Dye, 132 S.W. 1018; Maxwell v. Kurn, 180 S.W. 249; Aetna Ins. Co. v. O'Malley, 118 S.W. (2d) 3, 342 Mo. 800. (2) The trial court ruled correctly in holding that the decision (of the Commission in the matter of Peerless Fixture Company, Inc.) was beyond the power and jurisdiction of the Commission, was not authorized by law, and was a nullity which should be vacated and held for naught. In re Buckles, 53 S.W. (2d) 1055, 331 Mo. 405; Bash v. Truman, 335 Mo. 1077, 75 S.W. (2d) 840; American Const. Fire Ins. Co. v. O'Malley, 113 S.W. (2d) 795; Callahan v. Hess, 153 S.W. (2d) 713, 348 Mo. 388; State ex rel. v. Missouri Comp. Comm., 113 S.W. (2d) 1024. (3) The trial court ruled correctly in declaring as a matter of law that there was no evidence of substantial probative force to support the following findings of fact of the Commission: "For all practical purposes, it (Peerless Fixture Company, Inc.) was a corporation in name only, and the business was conducted as though it was the personal business of Conrad Shower, the President of the corporation. Mr. Shower controlled the business and affairs of the corporation by legally enforceable means and otherwise, directly or indirectly." S.S. Kresge v. Unemployment Comp. Comm., 162 S.W. (2d) 838, 349 Mo. 590. (4) The trial court ruled correctly in holding that there was no evidence of substantial probative force to support the findings of the Commission that during the year 1938 the Peerless Fixture Company, Inc., alone had eight or more persons in employment for thirteen or more days, each day in a separate week. A.J. Meyer & Co. v. Unemployment Comp. Comm., 152 S.W. (2d) 184, 348 Mo. 147. (5) The trial court ruled correctly in holding that there was no evidence of substantial probative force to support the finding of fact of the Commission that the Peerless Fixture Company, Inc., and Conrad Shower together had eight or more persons in employment for thirteen or more days, each day in a separate week, during the year 1938. A.J. Meyer & Co. v. Unemployment Comp. Comm., 152 S.W. (2d) 184, 348 Mo. 147. (6) The trial court ruled correctly in holding that there was no evidence of substantial probative force to support the finding of fact of the Commission that Conrad Shower and Peerless Fixture Company, Inc., together had eight or more persons in employment for twenty or more days, each day in a different week in 1937.

BARRETT, C.

This is an appeal by the Unemployment Compensation Commission from a decree of the Circuit Court of Cole County setting aside two separate decisions of the Commission. While the two appeals were appropriately consolidated they involve, as we view them, various, separate and distinct, though interrelated, problems under the Unemployment Compensation Law. Mo. R.S.A., Ch. 52, Art. 2. The first appeal involves Peerless Fixture Company, while the second...