Rendleman v. East Tex. Motor Freight Lines

Citation196 S.W.2d 171,355 Mo. 287
Decision Date08 July 1946
Docket Number39755
PartiesNora Rendleman, Appellant, v. East Texas Motor Freight Lines and Hartford Accident & Indemnity Company, a Corporation
CourtUnited States State Supreme Court of Missouri

Rehearing Denied September 9, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. Harry F Russell, Judge.

Affirmed.

Russell J. Horsefield and Chelsea O. Inman for appellant.

(1) Where there is not sufficient competent evidence to support the Commission's finding, this court must reverse the award. Sec. 3732, R.S. 1939. (2) Although the proceedings before the Commission are informal and summary, the evidence must be of a character legally sufficient to establish the necessary facts. Woods v. American Coal & Ice Co., 25 S.W.2d 144; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Sawtell v. Stern Bros. & Co., 226 Mo.App. 485, 44 S.W.2d 264; Hassell v. C J. Reinecke Lumber Co., 54 S.W.2d 758. (3) The undisputed evidence in the record respecting the employment of Klassie showed that he was employed in St. Louis, Missouri, on May 24, 1943, to drive equipment from St. Louis to Chicago. This was the trip in which he sustained his fatal injuries. The contract of hiring was contained in the trip lease. A separate lease was made for each trip and was applicable to that trip only. Hence, the only competent evidence established conclusively that Klassie was employed in Missouri, and, therefore, the Commission had jurisdiction of the claim. Sec. 3700 (b), R.S. 1939. (4) Where the evidence is undisputed the award to be made is a question of law and the decision of the Commission is not binding on the courts. Horrell v. Chase Hotel, Inc., 174 S.W.2d 881. (5) The trip lease was a written contract prepared by the employer. It is clear and free of any ambiguity and no parol evidence to vary or modify its terms was competent. Chapman v. Kansas City, 114 Mo. 542, 21 S.W. 858; Evans v. Graden, 125 Mo. 72, 28 S.W. 439; Ford v. Dyer, 148 Mo. 528, 49 S.W. 1091; Donovan v. Boeck, 217 Mo. 70, 116 S.W. 543; Solace v. T.J. Moss Co., 142 S.W.2d 1079; Belt Seed Co. v. Mitchell Hill Seed Co., 236 Mo.App. 142, 153 S.W.2d 106; Zeppenfeld v. Morgan, 168 S.W.2d 971. (6) Even though the Commission found that a contract was made with Pichen in the State of Illinois, nevertheless Klassie was in the special employ of the East Texas Motor Freight Lines while operating under the trip lease and by virtue of its terms. Ellegood v. Brashear Freight Lines, 236 Mo.App. 971, 162 S.W.2d 629; Simmons v. K. C. Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Towers v. Watson Bros. Transportation Co., 294 N.W. 594; Sec. 3695 (a), R.S. 1939. (7) There was no evidence that Klassie was hired in Illinois. Archer had no authority to hire anyone. The statement of claimant that deceased phoned her from Litchfield that he had a job has no probative value. Such testimony will not support an inference of the place of employment in the face of the trip lease. Palm v. Southwest Missouri Liquor Co., 176 S.W.2d 528; Stepaneck v. Mark Twain Hotel Co., 104 S.W.2d 761; Holliday v. Walls, 64 S.W.2d 318; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69; Boehm v. Acacia Mutual Ins. Co., 119 S.W.2d 977. (8) Whereas in this case the contract of employment was entered into in Missouri, the Workmen's Compensation Law of Missouri applies notwithstanding the fact that the injury was sustained outside the state. Sec. 3700 (b), R.S. 1939.

John S. Marsalek and Moser, Marsalek & Dearing for respondents.

(1) The burden was upon appellant to show that the contract of employment was made in Missouri, and that the Missouri Workmen's Compensation Commission had jurisdiction of the claim. Sec. 3700 (b), R.S. 1939; Kelsall v. Riss & Co., 165 S.W.2d 329; Smith v. Braudis, 234 Mo.App. 1237, 123 S.W.2d 223; Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 75; Maxwell v. Kurn, 180 S.W.2d 249. (2) In determining where the contract of employment was made, all the facts and circumstances and the conduct of the parties must be taken into consideration. Deister v. Thompson, 352 Mo. 871, 180 S.W.2d 15; Muse v. A. E. Whitney & Son, 227 Mo.App. 640, 56 S.W.2d 848. (3) The record contains direct evidence that the employment contract under which Klassie was working at the time of the accident was made at Litchfield, Illinois, on February 14, 1943, and was ratified and approved in Chicago, Illinois, on the same day by respondent, and a few days later by Stanley Pichen. The question is one of fact, and since the finding of the Commission on the subject is supported both by direct evidence and fair inferences, it is conclusive. Deister v. Thompson, 352 Mo. 871, 180 S.W.2d 15; Kelsall v. Riss & Co., 165 S.W.2d 329. (4) The admissions by appellant, both by statements made shortly after her son's death, and in her testimony at the hearing, that he was employed in Illinois on February 14, 1943, and that he took his last job, the job he was doing at the time of his death, at said time and place, were competent and substantial evidence of the facts stated. Grodzky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618; Simmons v. K. C. Jockey Club, 334 Mo. 99, 66 S.W.2d 119; Reiling v. Russell, 345 Mo. 517, 134 S.W.2d 33. (5) Even if, as appellant contends, there is evidence in the record contrary to the Commission's finding, such evidence must be rejected. Only the evidence and inferences in support of the award can be considered on appeal. Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Simmons v. Kansas City Jockey Club, 334 Mo. 99; Tokash v. General Baking Co., 349 Mo. 767, 163 S.W.2d 554. (6) The commission was not required to determine the case on the theory that the "Memorandum of Equipment Lease Agreement" dated May 24, 1943, was the contract of employment under which Klassie was working at the time of the accident. No employment contract was effected by the above mentioned document. The provision therein that the equipment should be operated only by the lessor or his representative while in the employ of the lessee did not constitute the making of a contract of employment, but on the contrary was merely a requirement that the equipment should be operated only by one who was such an employee. Leggett v. Levy, 233 Mo. 590, 136 S.W. 299. (7) The trip leases recite that they are contracts between the owner of the equipment, in this case Pichen, and the respondent. They do not purport to be contracts between Klassie and anyone. He was not one of the contracting parties. It is obvious, therefore, that the lease of May 24th was not the employment contract under which Klassie was working when the accident occurred. Martin v. Almond, 25 Mo. 313; Musser v. Johnson, 42 Mo. 74; McClellan v. Reynolds, 49 Mo. 312; Hubbard v. Swofford Bros. Dry Goods Co., 209 Mo. 495, 108 S.W. 15. (8) The language of the provision relied upon by appellant is ambiguous, and requires the consideration of the oral testimony, and of all the facts and circumstances in evidence, in order to determine the intention of the parties. The purpose and intent of the document as a whole is not clear. Under such circumstances, the proper construction of the language used, the effect of the document as a whole, and its bearing upon the issues, becomes a question of fact, in this case a question for the Commission. Glaser v. St. Louis University, 293 S.W. 432; Yost v. Silvers, 138 Mo.App. 524, 119 S.W. 971; Duetman v. Kilpatrick, 46 Mo.App. 624; Philbert v. Burch, 4 Mo.App. 470. (9) Appellant's own testimony that her son took his last job, the job he was doing at the time of his death, in Illinois on February 14, 1943, the fact that he performed services which were part of the duties of the job between trips, both at Chicago and St. Louis, together with other facts and circumstances in evidence, show that the trip leases were not contracts under which Klassie was employed. His employment on February 14th contemplated various duties in addition to driving on the trips mentioned in the trip leases, and he continued on the job on which he was then employed until the accident occurred. He did not enter into a new contract of employment each time he started on a trip. The trips and the trip leases were merely incidents of a larger continuing relationship already existing. Secs. 3694, 3695, R.S. 1939; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 75; Simms v. Truscon Steel Co., 343 Mo. 1216, 126 S.W.2d 204; Hartman v. Union E.L. & P. Co., 53 S.W.2d 241; Selser v. Bragman's Bluff Lumber Co., 146 So. 690; Pettiti v. Pardy Const. Co., 130 A. 70; Tripp v. Ind. Acc. Comm., 4 P.2d 917; Texas Employer's Assn. v. Volek, 69 S.W.2d 33. (10) The Commission was under a duty first to determine whether it had jurisdiction over the claim. Having determined that the employment contract (regardless of whether Pichen or respondent was the employer) was not made in Missouri, and that the Commission, consequently lacked jurisdiction, it properly refrained from expressing an opinion or finding on any other issue. 21 C.J.S., p. 179, sec. 118.

Barrett, C. Westhues and Bohling, CC., concur.

OPINION
BARRETT

In this proceeding under the Workmen's Compensation Act Nora Rendleman, as the dependent mother of Clarence Klassie, made claim for the benefits, $ 12,390.00 accruing by reason of his accidental death on the 24th day of May 1943. A referee found in favor of the claimant but upon appeal the full Commission found that the "accident occurred in the State of Illinois, and that the contract of employment was not entered into in the State of Missouri" and, therefore, compensation was denied because, in these circumstances, the Commission did not have jurisdiction to make an award. Mo. R.S.A., Sec. 3700(b). The...

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3 cases
  • Johnson v. Great Lakes Pipe Line Co.
    • United States
    • United States State Supreme Court of Missouri
    • 13 Diciembre 1948
    ...... and circumstances. Rendleman v. East Texas Motor Freight. Lines, 355 Mo. 287, ......
  • Thacker v. Massman Const. Co.
    • United States
    • United States State Supreme Court of Missouri
    • 10 Marzo 1952
    ...record. Where the contract of employment was made was a fact issue for the Commission's consideration. Rendleman v. East Texas Motor Freight Lines, 355 Mo. 287, 196 S.W.2d 171, 174; Kelsall v. Riss & Co., Mo.App., 165 S.W.2d Respondent contends that claimants are not entitled to the benefit......
  • Petersen v. Central Pattern Co.
    • United States
    • Court of Appeal of Missouri (US)
    • 17 Enero 1978
    ...the nature of the business, the situation of the parties and all the facts and circumstances. Rendleman v. East Texas Motor Freight Lines, 355 Mo. 287, 196 S.W.2d 171, 174(6) (1946). The burden of proving that fact is upon claimant, Smith v. Braudis, 234 Mo.App. 1237, 123 S.W.2d 223 (1939),......

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