Sims v. Truscon Steel Co.

• Decision Date: 15 March 1939
• Docket Number: 35661
• Citation: 126 S.W.2d 204,343 Mo. 1216
• Parties: Myrtle Elizabeth Sims, Dependent of Frank Calvin Sims, v. Truscon Steel Company, Employer, and London Guarantee & Accident Company, Insurer, Appellants
• Court: Missouri Supreme Court

126 S.W.2d 204

343 Mo. 1216

Myrtle Elizabeth Sims, Dependent of Frank Calvin Sims, v. Truscon Steel Company, Employer, and London Guarantee & Accident Company, Insurer, Appellants

No. 35661

Supreme Court of Missouri

March 15, 1939

Appeal for Jackson Circuit Court; Hon. Emory H. Wright Judge.

Affirmed.

Watson Ess, Groner, Barnett & Whittaker for appellants.

(1) The court erred in affirming said award, because the burden was upon claimant to prove that the contract of employment under which deceased was employed when he received the injury which caused his death was made in Missouri; and claimant failed to sustain that burden. Adams v. Continental Life Ins Co., 101 S.W.2d 75; Kennedy-Van Saun Mfg. Corp. v. Ind. Comm., 355 Ill. 519, 189 N.E. 916. (2) The court erred in affirming the award of the Workmen's Compensation Commission, because there is no evidence that the first contract of employment was made in Missouri. Daggett v. K. C. Structural Steel Co., 334 Mo. 207, 65 S.W.2d 1036; Thompson v. Foundation Co., 177 N.Y.S. 58; Cole County v. Cent. Mo. Trust Co., 302 Mo. 222, 257 S.W. 774; State ex rel. v. Robertson, 191 S.W. 989; Chapin v. Cherry, 243 Mo. 401, 147 S.W. 1084; Egger v. Nesbitt, 122 Mo. 667, 27 S.W. 385; Phillips v. Travelers' Ins. Co., 288 Mo. 175, 231 S.W. 947; Cardinale v. Kemp, 309 Mo. 241, 274 S.W. 437; In re Moore's Estate, 223 P. 73, 65 Cal.App. 29; United States v. Amer. Surety Co., 161 F. 149; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Bent v. Lewis, 88 Mo. 462. (3) The court erred in affirming said award, because the undisputed documentary evidence shows that when deceased received the injury in Kansas which caused his death he was working under a second contract of employment which had been made in Kansas. Kennedy-Van Saun Mfg. Corp. v. Ind. Comm., 355 Ill. 519, 189 N.E. 916; Severin v. Ind. Comm., 363 Ill. 217, 2 N.E.2d 65; Ludberg v. Lackawanna Steel Const. Corp., 284 N.Y.S. 718; Adams v. Continental Life Ins. Co., 101 S.W.2d 75; Herboth v. Radiator Co., 145 Mo.App. 484, 123 S.W. 533; Darlington Lbr. Co. v. Mo. Pac. Ry. Co., 243 Mo. 245, 147 S.W. 1052; Johnson v. Mo. Ins. Co., 46 S.W.2d 960; Shaw v. Amer. Ins. Union, 33 S.W.2d 1052; Cleveland Land Co. v. Ross, 135 Mo. 101, 36 S.W. 216. (4) The court erred in affirming said award, because to construe the Missouri Workmen's Compensation Act to be broad enough in its terms and intent to apply to the accident, death and contract shown by the evidence would render the Act unconstitutional under the provisions of Section 1 of Article IV of the Constitution of the United States, which provides that full faith and credit shall be given in each state to the Public Acts . . . of every other state. Supreme Council of the Royal Arcanum v. Green, 237 U.S. 531; Aetna Life Ins. Co. v. Dunken, 266 U.S. 389; New York Life Ins. Co. v. Head, 234 U.S. 149; Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108; McManus v. Park, 287 Mo. 123, 229 S.W. 211; Miller v. Hotel Savoy Co., 68 S.W.2d 929, 228 Mo.App. 463. (5) The court erred in affirming said award, because to construe the Missouri Workmen's Compensation Act to be broad enough in its terms and intent to apply to the accident, death and contract shown by the evidence would render the Act unconstitutional under the provisions of the Fourteenth Amendment of the Constitution of the United States, which provides that no state shall deprive any person of . . . property without due process of law. New York Life Ins. Co. v. Head, 234 U.S. 149; Allgeyer v. Louisiana, 165 U.S. 578; Home Ins. Co. v. Dick, 281 U.S. 397; Provident Savs. Life Assur. So. v. Kentucky, 239 U.S. 103; New York Life Ins. Co. v. Dodge, 246 U.S. 357.

N. R. Fisher and E. H. Gamble for respondent.

(1) This court has no jurisdiction upon constitutional grounds, because defendant-appellants preserved no such question in the court below. Lohmeyer v. St. Louis Cordage Co., 113 S.W. 1108; McManus v. Park, 229 S.W. 211; Beck v. K. C. Pub. Serv. Co., 37 S.W.2d 589; Hohlstein v. St. Louis Roofing Co., 42 S.W.2d 573; Lawson v. Capital City Co., 43 S.W.2d 775; Shroyer v. Mo. Comm. Co., 61 S.W.2d 713; McFall v. Barton, etc., Co., 61 S.W.2d 911; Curtin v. Zerbst Pharmacal Co., 62 S.W.2d 771; Kristanik v. Chevrolet Co., 70 S.W.2d 890; Moer v. Orek Coal Co., 78 S.W.2d 107. (2) This court has no jurisdiction upon pecuniary grounds, as defendants conceded before the commission liability for an amount which, deducted from the total of all installments and funeral expenses awarded, leaves a disputed difference less than $ 7500. Casebolt v. International Life, 38 S.W.2d 1044. (3) The award is for $ 20 per week for the length of time that plaintiff lives and remains unmarried, in no event to exceed 553.8 weeks. That does not affirmatively show over $ 7500 in dispute, hence this court has no jurisdiction. R. S. 1929, sec. 3319 (d); Dougherty v. Manhattan, etc., Co., 39 S.W.2d 126; Wahlig Krenning Grocer Co., 29 S.W.2d 128; Cassidy v. Eternit Inc., 32 S.W.2d 75; Leilich v. Chevrolet Co., 40 S.W.2d 601; Higgins v. Heine Co., 41 S.W.2d 565; Hohlstein v. St. Louis Roofing Co., 42 S.W.2d 573; Brauch v. Skinner, 51 S.W.2d 27; Schulz v. Great A. Tea Co., 56 S.W.2d 126; Shroyer v. Mo. Comm. Co., 61 S.W.2d 713; Platies v. Theodorow Bakery Co., 66 S.W.2d 147; Newman v. Rice-Stix D. G. Co., 73 S.W.2d 264; Edwards v. Al Fresco Co., 100 S.W.2d 513; Hardt v. City Ice & Fuel Co., 192 S.W.2d 592. (4) The reception of secondary evidence of the "employment card" was error, because no foundation was laid therefor; besides, it is immaterial. (5) Even if claimant had instituted the proceedings for compensation under the Kansas law, which she did not, it would not require a reversal of the award herein. Gilbert v. Des Lauriers Co., 167 N.Y.S. 274; James v. Texas Employer's Ins. Assn., 98 S.W.2d 425; Salvation Army v. Industrial Comm., 263 N.W. 349. (6) Sims, having been employed in Missouri, came under the Missouri Compensation Law, and he remained under said law while working in Kansas. His advancement to superintendent was nothing but a promotion, under the original contract. Kennedy v. Industrial Comm., 189 N.E. 916; Severin v. Industrial Comm., 2 N.E.2d 65; Ludberg v. Lackawanna Corp., 284 N.Y.S. 718; R. S. 1929, sec. 3310; Daggett v. K. C. Structural Steel Co., 65 S.W.2d 1036; Bolin v. Swift & Co., 73 S.W.2d 774; Weiderhoff v. Neal, 6 F.Supp. 798; Adams v. Continental Life, 101 S.W.2d 75; Pettiti v. Purdy Const Co., 130 A. 71; Selser v. Bragman's Bluff Lbr. Co., 146 So. 690.

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

OPINION

WESTHUES

This case was submitted to this court at the September Term, 1937. An opinion, by Tipton, J., was adopted; a motion for rehearing sustained, and the case was again submitted in January, 1939. In their motion for rehearing appellants state the following:

"In its opinion the court, in reference to appellants' contention that the original contract of employment made by Frank Calvin Sims, deceased, with Truscon Steel Company, was made in Kansas and not in Missouri, stated that it did not believe that appellants had placed the proper construction on the evidence. As a basis for this holding the court set out evidence in the opinion as follows:

"'McElroy testified as follows:

"'Q. He (Sims) told you as soon as he finished that job he would go over? A. That he would get somebody to finish it and go over and start.

"'Q. Well, where did you give him his final instructions for going to work in Wyandotte County? . . . A. I hired him to work over there at my office in Missouri.'

"From the above it appears that this Court held that the original contract between Sims and Truscon Steel Company was made in Missouri, as shown by the above quoted evidence."

It is asserted by appellants that the answer to the last question, above quoted, was stricken from the record by the commissioner who heard the case, and therefore the conclusion of the Compensation Commission, that the contract was made in Missouri, was not based upon that evidence. Appellants earnestly insist that the claimant did not produce evidence to sustain a finding of the commission that the contract was made in Missouri. We have carefully re-read the record. The examination of the witness McElroy was interrupted frequently by objections, which in turn were followed by discussions between the commissioner hearing the case and the attorneys representing the parties. Omitting these discussions and some of the questions and answers, the gist of the witness's evidence, which was not stricken out, pertinent to the point in question, is as follows:

"A. I personally talked to Mr. Sims, because I was interested in locating him permanently with Truscon Steel. . . .

"Q. (By Mr. Fischer): Was that before he actually went to work in Wyandotte County? A. Prior.

"Q. And where did that personal conversation between you and Sims take place? A. In the Labor Temple at Fourteenth and Woodland.

"Q. In whose office there? A. If I remember correctly, my office was full and I took him out in the hall by the elevator and talked to him there. . . .

"Q. (By Mr. Fischer): What I am referring to now, is your conversation that you had with Frank Sims in the Labor Temple in your office prior to him going on this job; now what was that conversation? . . .

"A. He told me he had a little contract he would like to finish. After I talked to him, he told me to get somebody to finish it and he would go over.

"Q. He told you as soon as he finished that job, he would go over? A. That he would get somebody to finish it and go over and start.

"Q. Later on did he go over? A. He did go over, yes. . . .

"Q. (By Mr. Fischer): Well, now after you talked to him in your office in the Labor Temple in the evening, as...