Zarnecke v. Blue Line Chemical Co.

• Decision Date: 06 December 1932
• Docket Number: No. 22428.,22428.
• Court: Missouri Court of Appeals
• Parties: ZARNECKE v. BLUE LINE CHEMICAL CO. et al.

54 S.W.2d 772

ZARNECKE v. BLUE LINE CHEMICAL CO. et al.

No. 22428.

St. Louis Court of Appeals. Missouri.

December 6, 1932.

Rehearing Denied December 20, 1932.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be published in State Report."

Proceeding under the Workmen's Compensation Law by Jerome Zarnecke, claimant for injuries, opposed by Blue Line Chemical Company, employer, and United States Fidelity & Guaranty Company, insurance carrier. From a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of claimant, the employer and insurance carrier appeal.

Affirmed.

Carter, Jones & Turney and George A. McNulty, all of St. Louis, for appellants.

George A. Hodgman and Albert E. Cunliff, both of St. Louis, and Frank E. Gregorski, of Milwaukee, Wis., for respondent.

HAID, P. J.

This is an appeal from a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of the claimant.

But one point is presented, and the employer and insurer raise no issue of fact.

The claimant was a traveling salesman, employed by the employer within Missouri to cover a territory located wholly outside of the state of Missouri, to wit, the whole of Arkansas and a small part of Louisiana. The record goes quite into detail concerning his employment, but the foregoing is sufficient to determine the questions raised.

The employer and insurer contend that notwithstanding section 3310 of the Revised Statutes of Missouri 1929 (Mo. St. Ann. § 3310), our Workmen's Compensation Act has no application whatever, except to persons who are employees within the meaning of section 3305 (Mo. St. Ann. § 3305), which states that, "the word `employee' as used in this chapter shall be construed to mean every person in the service of any employer, as defined in this chapter, under any contract of hire, express or implied, oral or written," who are employed as per section 3304 (Mo. St. Ann. § 3304), which provides, "the word `employer' as used in this chapter shall be construed to mean: (a) Every person, partnership, association, corporation, trustee, receiver, * * * using the service of another for pay." The contention is based upon the theory that it was the intention of the Legislature that the legal relationship of employer and employee should exist in Missouri before our act should apply, and since the employee was never actually engaged in his work in Missouri, that therefore the act could have no applicability to this employment.

In view of the provision of section 3310 (Mo. St. Ann. § 3310) and the decisions of our court, we think this is rather a strained construction. Section 3310 provides by subdivision (b): "This chapter shall apply to all injuries received in this state, regardless of where the contract of employment was made, and also to all injuries received outside of this state under contract of employment made in this state, unless the contract of employment in any case shall otherwise provide."

The employer and insurer rely principally, for the construction urged by them, upon the cases of Wandersee v. Moskewitz, 198 Wis. 345, 223 N. W. 837 a...