Thacker v. Massman Const. Co.

• Decision Date: 10 March 1952
• Docket Number: No. 42884,No. 1,42884,1
• Citation: 247 S.W.2d 623
• Parties: THACKER et al. v. MASSMAN CONST. CO
• Court: Missouri Supreme Court

Page 623

247 S.W.2d 623

THACKER et al. v. MASSMAN CONST. CO.

No. 42884.

Supreme Court of Missouri, Division No. 1.

March 10, 1952.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 14, 1952.

Franklin D. Glore, Kansas City, for appellants.

Roy W. Crimm and Walter A. Raymond, Kansas City, for respondent.

DALTON, Judge.

This is an appeal from a judgment of the circuit court reversing a final award of the Industrial Commission in favor of claimants and against the employer. The amount involved gives this court jurisdiction of the appeal. Section 3, Article 5, Constitution of Missouri 1945, V.A.M.S.

It was admitted that George W. Thacker was an employee of respondent and sustained an injury, on November 14, 1949, by accident arising out of and in the course of his employment in Wyandotte County, Kansas, resulting in his immediate death. Claimants-appellants are the widow and dependent children of the deceased.

Respondent was engaged in the making of certain improvements, referred to as the Armourdale project, on the west side of the Missouri River in Kansas. Considerable piling had to be driven. Respondent maintained an office near the project and employed a number of pile drivers. Maurice Kite was the superintendent in charge. Respondent was a major employer and selfinsurer operating under the Workmen's Compensation laws of both Missouri and Kansas and claimants, apparently as a matter of protection, filed claims for benefits under the laws of both states.

On the issue as to where the contract of employment was entered into, the Industrial Commission of Missouri found that, at the time of the accident, 'said employee was working under a contract of employment made in this state.' The sole issue presented on this appeal is whether the finding on that issue, which was the only contested issue in the case, 'is unsupported by competent and substantial evidence upon the whole record,' as the trial court held. Sections 536.140 and 287.490, RSMo 1949, V.A.M.S.; Art. 5, Sec. 22, Constitution of Missouri 1945; Wood v. Wagner Elec. Corp., 355 Mo. 670, 197 S.W.2d 647, 649; Goetz v. J. D. Carson Co., 357 Mo. 125, 206 S.W.2d 530, 532.

Claimants' evidence tended to show (by the deposition of James A. Bruce) that a day or two prior to October 11, 1949, Bruce appeared at respondent's office and Kite, respondent's foreman, hired him as a pile driving foreman of a new crew to be put on for the third shift. No time was fixed to begin work, it was to be within a day or two and Kite was to notify him. Kite asked him if he had a crew. Bruce said he thought he had a crew and would have them. Kite gave him two or three names, or told him to go in the office and get them, as he did. Bruce had previously hired his own crew when working for respondent. Bruce did not recall whether or not Thacker's name was among those received from Kite. Bruce testified: 'I don't recall that he told me to go by there. I said I would.' He also remembered saying to Kite, 'Well, I know positively that if Thacker is not working I can get him.' Bruce testified, 'I told him I would go by and notify Thacker.' On cross-examination, Bruce further testified: 'Q. You don't know whether Thacker had been previously employed, or not? A. I know he wasn't. After I got hold of Mrs. Thacker, I knew he wasn't, because he went to the hall to straighten up his card that day, and Mrs. Thacker said she would tell him when he got back to be ready at midnight.' Bruce said that he (Bruce) was hired as foreman the first time he saw Kite. Later (a day or two), Kite sent McKnight, one of respondent's employees, to tell him to start work at midnight on the 11th of October. On the morning of October 11th, Kite told Bruce to get ready and be ready to start work that night at midnight. Bruce then went to the Union Hall in Kansas City, Mossouri, and told two men (one was Tillisch) 'they could go to work over there' for respondent that night. He also went to Hardin to see two others, Meadows and McGraw, but did not get them. He then went to Hawthorne station and Courtney trying to get men for his crew. He went by Thacker's house in Harlem, Missouri, but no one was at home. On a second trip to Thacker's home he failed to find Thacker, but found Mrs. Thacker about 1:30 p. m. Bruce told Mrs. Thacker to tell her husband to come to work for Massman Construction Company at twelve o'clock midnight. Mrs. Thacker said she would see that he got the message and that he would be there.

When Bruce told Kite he had a crew, Bruce intended to get McGraw, Meadows, Thacker and the two men he got at the Union Hall in Kansas City. He hadn't yet talked to Thacker, but had worked with him before. When Bruce, Thacker and other crew members appeared at midnight to go to work, only the night watchman was at respondent's office. The other crew went off the job at midnight and Bruce put his men to work. At 4:30 a. m., October 12, the rig turned over, tore up. Kite came at 5:30 a. m., and the men were given six hours time for the night's work and sent home. Before Thacker left the job that morning, he asked Kite for a job as welder and Kite said he would let him him know. Thacker later worked for respondent as a welder. Workmen had to sign up on the job on the Kansas side. Bruce signed before he began work, but Thacker didn't. Thacker didn't sign that night because no one was at the office and because they were laid off as of six o'clock the next morning. Kite could approve or disapprove men that Bruce selected. Kite did not disapprove Thacker, he wasn't there to disapprove. Thacker, after that occasion, continued to work as a welder for respondent.

The testimony of Robert Tillisch tended to show the circumstances under which he went to work on the same job with Thacker. Shortly after lunch time on October 11th, Tillisch had a telephone call from the district counsel of the carpenters Local 61, who asked Tillisch to talk to Bruce on the telephone. Bruce said he was looking for a crew to go to work on the third shift for respondent and that he had Eddie Guth and was going by to try to get Thacker. Tillisch agreed to start that night or the next night at midnight and he did so. He signed no papers that night, but went to work and the 'rig turned over right after 4:30.' He didn't go back to work but reported at respondent's office later and was paid for the work he did.

Thacker's widow testified that Bruce came to her house on the afternoon of the same day that Thacker went to work at midnight. Bruce asked for Thacker and said he wanted him 'to go to work for him at Massman Construction Company that night at midnight,' as a pile driver. Her husband had gone to the Union Hall to look for work. She told Bruce that he would come to work at midnight. Thacker returned home about 2 p. m. and said he had been 'to the hall and went down to the Hawthorne station to look for a job.' She told him that Bruce wanted him to go to work for Massman at twelve o'clock that night. Thacker said he would go, and did go to work that night. He came home about six o'clock the next morning and said the rig broke down. Later a man came for him to do some welding and he continued to work for respondent until his death. Thacker's union card was paid up at that time as she had paid his union dues. Mrs. Thacker said that her husband had not made an application to respondent for a job previous to that day, 'because he wasn't away from the house long enough.' She said she had not been at home between 11-12 o'clock that morning, but had been visiting across the street and did not see Bruce until afternoon.

Respondent-employer's evidence tended to show (Kite's testimony) that, on Monday afternoon before Thacker started to work at midnight on Tuesday night, Thacker came over to the Massman office in Kansas and made application to Kite, respondent's foreman, for employment as a pile driver. Kite told him that they planned to put on a third shift, that they didn't know when they would be able to put the shift on, since they had several things to be worked out, 'and if he was interested, why, to go down and leave his name at the office with the clerk in the office, which he did.' Kite told him to go down and put his name on the list and they would call him as soon as they started the third shift, 'we'd call him when we were ready to put the third shift on.' Kite directed the clerk to call Thacker on Tuesday, October 11, 1949, but the clerk could not reach him. In the afternoon Kite told Bruce to notify Thacker to come to work at midnight. Respondent had the names of three pile drivers on a list in the office, because respondent anticipated putting on the third shift. Thacker came to work at midnight. Kite saw him the next morning. Before Thacker left the job he asked for work as a welder. Kite said he would let him know if they needed him, and they did send to his home for him that day. Kite had the right to hire and fire employees. They were subject to his approval. When they came he might have to pay them for two hours and send them home. Merely leaving names with the clerk was not considered employing them, unless they were anticipating a third shift. Merely leaving their names was employment for the three men (including Thacker) who left their names with the clerk. Guth's name was not taken until Tuesday afternoon. Kite told the other men he would let them know when to come to work. Kite testified: 'If they were going to work, they were bound to have been employed. * * * When I told that man to go down there he was employed, as far as I was concerned. I wasn't going to get another man to replace him. I was counting on him to go to work.' They were employed at the time they left their names with the clerk. Kite said he told Thacker that they were 'going to put that third shift on, and we were counting on him to go to work * * * I told him to put his name on the list. Q. In other words you told him that you would notify...