State ex rel. Mills v. Allen

• Citation: 128 S.W.2d 1040,344 Mo. 743
• Decision Date: 06 June 1939
• Docket Number: 35424
• Parties: State of Missouri at the relation of H. F. Mills, Relator, v. Perry T. Allen et al., Judges of the Springfield Court of Appeals
• Court: United States State Supreme Court of Missouri

128 S.W.2d 1040

344 Mo. 743

State of Missouri at the relation of H. F. Mills, Relator, v. Perry T. Allen et al., Judges of the Springfield Court of Appeals

No. 35424

Supreme Court of Missouri

June 6, 1939

Writ quashed.

Wright Rogers & Margolin and Frank E. Atwood for relator.

Relator's employment by Carthage Marble Corporation was for an indefinite time, was terminable at will by employer, was not a contract of employment for one full year or more at a fixed salary for such period in excess of $ 3600 and relator was entitled to the benefits of the Missouri Workmen's Compensation Act under the provisions of Section 3305, Revised Statutes 1929. Klasing v. Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1011.

Harris & Koontz and James D. Reeves for respondents.

(1) The Springfield Court of Appeals did not overlook or refuse to follow the Klasing case, but on the contrary expressly reiterated its finality by distinguishing it. Klasing v Schmitt Contracting Co., 73 S.W.2d 1101; Mills v Carthage Marble Co., 102 S.W.2d 769. (2) The Springfield Court of Appeals recognized the Klasing case, but found that the executive, Mills, was not within the Compensation Act. Mills v. Carthage Marble Co., 102 S.W.2d 769. (3) Under the evidence upon which the claim was tried, Mills was shown to be an employee without the coverage of the Compensation Act. Mills v. Carthage Marble Co., 102 S.W.2d 769. (4) The cases on which the Klasing decision was based, deal with entirely different facts and an entirely different act, and are not applicable. Kelley's Dependents v. Hoosac Lbr. Co., 95 Vt. 50, 113 A. 818; Livingstone Worsted Co. v. Toop, 48 R. I. 368, 138 A. 183; O'Bannon Corp. v. Walker, 46 R. I. 509 129 A. 599; Hauter v. Coeur D'Alene Co., 39 Idaho 621, 228 P. 259; Koester Baking Co. v. Ihrie, 127 A. 492; Fitch v. Parks & Woolson Machine Co., 191 A. 920. (5) In treating the Compensation Act there is distinction between a wage earner and a salaried employee. Koester Baking Co. v. Ihrie, 127 A. 492; Putnam v. Producers Live Stock Marketing Assn., 75 S.W.2d 1075; Southwell v. Parker Plow Co., 207 N.W. 872; Western Union Tel. Co. v. Eckhardt, 20 S.W.2d 759; Davis v. Englestien, 263 Ill.App. 57; Jones v. Manhattan Horse Co., 103 A. 948; Hatch v. Sallinger, 133 A. 621; Godson v. McFadden, 39 S.W.2d 287; Morris v. Briggs Co., 192 Mo.App. 145, 179 S.W. 785; Williams v. Hesser Coal Co., 207 Mo.App. 197, 231 S.W. 680; Sec. 3305, R. S. 1929. (6) Mills was under the elective feature of Section 3305, and on his election was voted an annual salary in excess of the exclusion figure. Sec. 3305, R. S. 1929. (7) The intent of the Legislature was to exclude everyone whose average annual earnings exceeded $ 3600, regardless of whether there was a specific contract of employment for one year. Secs. 3305, 3312, 3313, 3314, 3315, 3316, 3317, 3319 3320, R. S. 1929; Russell v. Ely Walker D. G. Co., 332 Mo. 645, 60 S.W.2d 44; Hannibal Trust Co. v. Elzea, 315 Mo. 485, 286 S.W. 371; Grier v. Ry. Co., 286 Mo. 582.

Fordyce, White, Mayne, Williams & Hartman and G. Carroll Stribling for Consolidated Underwriters, amicus curiae.

(1) The election as a corporate officer amounted to a contract for one full year's employment, even though the right to terminate may have existed. Reid v. British & Irish Steam Packet Co., 2 K. B. 319, 14 British B. W. C. C. 20; Mills v. Carthage Marble Corp., 102 S.W.2d 769. (2) By Section 3305 (a), Revised Statutes 1929, persons whose "average annual earnings exceed Thirty-six Hundred Dollars" in fact are excluded from the operation of the Workmen's Compensation Act regardless of whether there is a specific contract of employment for a definite period of one year or not, because: (a) The term "average annual earnings" is defined by the Workmen's Compensation Act itself. R. S. 1929, secs. 3312, 3314, 3315, 3316, 3317, 3320; Rouchene v. Gamble Const. Co., 338 Mo. 123, 89 S.W.2d 58. (b) Under settled principles of construction the legislative intent as expressed in the act itself must control. Hannibal Trust Co. v. Elzea, 315 Mo. 485, 286 S.W. 371; Grier v. Kansas City, etc., Ry. Co., 286 Mo. 523, 228 S.W. 454; In re Costello's Estate, 338 Mo. 663, 92 S.W.2d 723. (c) A construction limiting the operation of Section 3305 (a) to persons operating under a specific contract of employment for one full year or more not subject to termination, would include within the terms of the act highly paid excutives and others not within the working class, contrary to the purposes and intent of the Workmen's Compensation Act. R. S. 1929, sec. 3299; Chambers v. Macon Wholesale Grocer Co., 334 Mo. 1215, 70 S.W.2d 884; Maltz v. Jackoway-Katz Hat Co., 336 Mo. 1000, 82 S.W.2d 909. (d) Such a construction would amount to the interpolation of language specifically requiring a contract of one year or more, contrary to settled principles of construction. Allen v. St. L.-S. F. Ry. Co., 338 Mo. 395, 90 S.W.2d 1050.

William H. Biggs for Clara R. Morse.

An employee is not within the excluding provision of Section 75 of the Workmen's Compensation Act (Sec. 3305, R. S. 1929), unless he has a contract of employment for a definite term of one full year or more at a fixed or determinable salary or wage, so that if the term of employment be for one year only the minimum earnings thereby specified or fixed would for the whole year exceed $ 3600, or if the term of employment be for more than one year, or for two or more years, the average of such earnings for the whole period or term of employment computed on a yearly basis would be in excess of $ 3600 a year. Klasing v. Schmitt, 73 S.W.2d 1015; Sec. 3394, R. S. 1929; Stone v. Blackmer & Post Pipe Co., 224 Mo.App. 319; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Shaw v. Jackson Walker Coal & Min. Co., 16 S.W.2d 190; Elsas v. Montgomery Elevator Co., 50 S.W.2d 130; Kelley's Dependents v. Hoosac Lbr. Co., 113 A. 81; Livingstone Worsted Co. v. Toop, 138 A. 183; O'Bannon Corporation v. Walker, 129 A. 559; Hauter v. Coeur d' Alene Co., 228 P. 259; Koester Bakery Co. v. Ihrie, 127 A. 492; 87 A. L. R. 959; 71 C. J., sec. 176, pp. 434-5; Griffith v. Penrhyn Castle, 1 K. B. 474; Thompson Co. v. McKay, 126 L. T. N. S. 33.

OPINION

Tipton, C. J.

This case comes to the writer on reassignment. It is certiorari to the Judges of the Springfield Court of Appeals, bringing up the record in the case of Mills, Appellant, v. Carthage Marble Corporation, Respondent, reported in 102 S.W.2d 769. That court affirmed the circuit court's judgment which had approved the action of the Missouri Workmen's Compensation Commission in denying compensation to relator. The Commission found that relator was not an employee as that word is defined by Section 3305, Revised Statutes 1929, because his average annual earnings exceeded three thousand six hundred dollars.

In certiorari, we are limited to the finding of a conflict between the Court of Appeals' opinion and the latest ruling of this court on the subject, either as to a general principle of law announced or as to a ruling under a like, analogous, or similar state of facts. The purpose of certiorari is to secure uniformity in opinions and harmony in the law. [State ex rel. Himmelbach v. Becker, 337 Mo. 341, 85 S.W.2d 420.] We are authorized to quash an opinion of the Court of Appeals only when its opinion conflicts with an opinion of this court. It is immaterial what we may think of the question as an original proposition. [State ex rel. St. Louis-San Francisco Ry. Co. v. Haid, 327 Mo. 217, 37 S.W.2d 437.]

The only opinion of this court that relator claims the decision conflicts with is the case of Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1011. In that case the plaintiff was a bricklayer and the defendant a building contractor for whom the plaintiff worked. The suit was at law for damages for personal injuries sustained by plaintiff due to the alleged negligence of the defendant. The essential facts in that opinion are as follows:

"There was no contract or agreement, express or implied, whereby defendant was bound to furnish plaintiff any specific amount of work or for that matter employment of any kind or for any length of time. Defendant could at any time cease to call plaintiff and cease to further employ him. There was a wide variation and fluctuation during the course of a week, month or year in the number of hours of work performed by plaintiff. The number of hours he might be employed during any given time was wholly dependent upon the work defendant had under contract during such time and such preference as defendant might accord plaintiff in calling him in the first instance and in making assignments when called. Too, weather and other conditions would often interrupt the regularity and continuity of work after it was underway. Defendants paid their workmen, who worked by the hour, weekly; such weekly payment covering the aggregate number of hours the employee had worked the week. The wages paid plaintiff by defendant during and for the years 1925, 1926 and 1927 were shown. During thirteen weeks in 1925 and twelve weeks in 1926 plaintiff did not work and of course received no wages. The earnings during the three years fluctuate with a range in amount from as low as $ 14.05 in the course of one week to $ 82.50 for one week. In 1925 plaintiff's earnings aggregated $ 2,564.10; 1926 $ 2,739.35; and, as stated supra, $ 3,642.25 in 1927. In 1927 he worked some time each week, and yet had defendant employed him a few hours less during the year his aggregate earnings for that year would have fallen below $ 3,600. It is apparent that the number of hours of work which might be afforded him in a year, a month, or a week, assuming that defendant continued to call him and to give him...