*1 1233 proof marriage by other than evidence issuance aof license proof performance ceremony. of a Upon proof, in that manner, of the fact of marriage, it follows that presumption legality must follow a necessity. rule of again
Without reviewing the evidence in this we case hold the str.ong same to constitute convincing proof that claimant and deceased were gives married and that it rise to such presumption; that there was no affirmative, any strong cogent circumstantial, evidence, or other contrary; to the marriagе that the between the parties presumed legal. to be v. (Mo.), Brock 120 S. W. [Maier 1167, 1174; 1. c. Nelson Jones, S. W. l. c. 83.] judgment
The affirmed. Boyer, C., concurs. foregoing CURIAM:—-The opinion of Sperry, C., PER adopted opinion as the court. judgment is affirmed. All concur. Roy Brollier, Employee, Glenn Respondent, Alstine, B. Van Employers’ Employer, Appellant, and American Insurance Appellant. (2d) S. W. 109. Company, Insurer, City Appeals. May Kansas Court of 1942. *2 appellants.
James R. Sullivan Arthur R. Wolfe *4 Spurgeon L. Floyd Smithson and B. Gibson respondent. *5 filed his claim with Workmen’s Brollier SPERRY, C.—Glenn Alstine, Roy employer, and against Yan B. Compensation Commission com- He Company, insurer. claimed Employers’ American Insurаnce employ of Van in the pensation injuries received while accidental for against em- both granted him an award Commission Alstine. The said where appealed to the circuit ployer and insurer. Both .court they appeal. this prosecute judgment was affirmed. From that award accident, prior happening of this Employer, years for to the many decorating, contracting in Kansas engaged a business sales, was the trade name of Van’s Sales City, Missouri, operated under filed Workmen’s 'Decorating Company. 1936 he Missouri In “acceptance” of thе Workmen’s Com- Compensation Commission partner a Arm- pensation employer At time named Act. had strong, “acceptance” was, in as follows: part, and the Armstrong Roy W. Employer’s name Van and Wm.
“1. B. Alstine VAN COMPANY. as SALES AND DECORATING d/b City, Street, Main Kansas Employer’s Missouri address “2. Missouri. or individual, corporation, partnership State common- “3. whether Partnership.” law trust. engaged same business and
Employer had in the under been prior trade to the he with Arm- same name time became associated partner was for time strong, with whom associated as short left, only. Armstrong operating After continued nаme, location, was business, same same at same so under the operating at time the accident herein occurred. insurance, policy March On insured issued Law, Compensation whereby prompt- “To pay
Workmen’s it promised ly any Compensation person entitled thereto under the . . Law, any the entire sum ... to such . amount due any injury person obligation compensation for such because imposed upon accepted by or under such of certain . . Law, statutes . referred the Workmen’s .;” pay . person proper . “For benefit of ” services, medical, . surgical, hospital cost of whatever nurse policy “Roy doing The was issued to Van B. Alstine business Van’s Decorating Company.” in full force and policy Sales and injuries herein upon effect when claimant suffered award mentioned was based. during
The evidence before the Commission the month disclosed that August, 1940, Anthony, engaged W. paint- one C. in the who ing business, together under the firm contracting partner, with a
[1239] Anthony Company, composed which firm was of name of W. C. one submitted a bid Anthony Schmidt, painting and Hubert for the City and of certain owned repairing property Kansas was by owner, mаnage- a non-resident and which was under control and ment Realty Company. Company Bliss demanded Realty Bliss that job protected the workmen on this by insurance Compensation Anthony Company Workmen’s Law. The had no Anthony he Company insurance. told Bliss communicate with them later. He Van him the contacted Alstine and told situation Anthony agreed and he and conditions and Van Alstine that W. C.
Company should contract to the work and that Van Alstine should do meet the for payroll employed, workmen should work- cover said compensation insurance, men with and furnish should whatever еquipment Anthony Anthony might require of him. Van Alstine and were to profits joining share chief reason their and losses. might under, in the employees venture was in order that work and by insurance, Compensation Workmen’s covered under the Law. agreement Pursuant to this Anthony between and Van Alstine requested latter it insurer that mail certificates insurance of his with Anthony, to Company, insurer Bliss and Realty prop- to to the erty owner, Anthony all employees, which insurer did. hired includ- ing claimant, and told him job “at time he went to work this on that he working Compensation was under the terms of the Workmen’s Act; being jobs was cаrried on these ’’ Alstine, jobs. Mr. Van who with me working on painter. working job August Claimant is a commenced on this He August 30, 1940, fell, 1940. he On a he was platform where working, twenty-five the ground. distance some feet to His back injured thereof, spinal that, broken and the as result cord so is paralyzed from the waist He is and virtually helpless downward. is totally disabled. permanently When accident occurred Anthony employer, Alstine, notified the Van who called immediately by telephone insurer it of notified accident. Insurer sent said Hospital ambulance after claimant and removed him from General way- Hospital St. and told doctor Luke’s that the was on his out.
It major is insured’s contention Van was not a em- Alstine ployer, Hendrix, as term has been defined in Crevisour v. (2d) 404, Grace, W. (2d)
S. Smith v. S. W. 383. In view our of the case it necessary is not to discuss contention. this that, employer,
Insurer contends a minor Van Alstine was not (a) within the Act because: The election filed Commission did not but em- only affect him as an individual affected ployees partnership, Armstrong, firm of Van Alstine and Decorating Company; (b) as Van’s Sales that there was d/b proof acceptance no were notices such election shown business, required by place have been in and posted about 3693, par. 5, Section Missouri 1939. Revised Statutes of bearing Regarding above, are cited contention “a” Missouri cases no controversy been point. parties on the for both Counsel *7 respective clients and eommendably diligent in behalf their of ably through of a total of five presented their the medium views authority court, ninety of containing briefs filed in some citations there recognized We think from courts text writers. various state and it. authority directly they have cited point is no Missouri in would recognized in partnership Compensa- Insurer contends that a the 1939, as a Law, 3694, Missouri tion Section Revised Statutes of “Any . . employer to . separate entity because an is defined be term there partnership.” “partnership” think that was We the every conceivable employer merely to an as include defined be so to might by relationship employer method which the of person, naming “every after arise. It will be noted that the section ” later there- partnership beginning . . . at the the paragraph, of of using . the every person, in “and other services includes Legislature “рart- pay.” another for the the word think used We nature, usually in nership” accepted sense, having in mind the its at legal character, limitations, rights a partnership and liabilities of given term be a differ- common law. It did not intend that the should gives it, that the law meaning ent or connotation than common to accord it a character which it else has. or Jackoway-Katz to nowhere [Maltz a Co., 1000, Cap 336 Mo. c. In Missouri l. 1007.] entity; it separate ideal partnership entity merely is not a but is Farrow, legal apart has from its members. existence no [Windisch contrary (2d) 392, c. to the whole S. W. 1. It would 394.] may, hold that a theory partnership partnership of the law of to through provisions of the Work accept the action the the partners, of individuals, as Compensation partners, men’s Law that the are thereby. that Com not affected While it has often been the said itself, nevertheless, it pensation Law a code does not unto follow Legislature, language, give the in choice intended to to its of entirely previously language special meaning said a different significance. Section Revised meaning well-established 1939, provides provisions that all of Statutes of Missouri the Act Certainly it liberally construed. could not be said that the shall by “partner the term concerning construction contended for insurer construction. It would be narrow and ship” would be liberal limiting ap illiberal and would have the effect of the construction scope. plication partnership in its We hold that when a of Act acceptance accepts provisions applies the Act such also of individually thereby. they are members of the bound partnership urged acceptance in completed It next was law never binding because so as to on no notices were ever become posted about place employer, required in of business by Section The record Revised Statutes of Missouri 1939. is silent men posting so far direct evidence of the notices However, testimony tioned in said concerned. section is all thought indicates operate intended to the Act and under doing acceptance that he it, although so. He stated filed he that he specifically filing. did not He in remember took out paid premiums insurance, surance under it. He premiums on said said being upon bаsed employees employ, plus number of he had those in the employ working him. of sub-contractors When under instant contract was entered into caused insurer to send certificates he Anthony, his insurance to Realty Company, and to Bliss owner property. of the His em agent, Anthony, him, acting ployed claimant and him em told that Van one of his Alstine ployers, Law, that claimant work proof would be covered In the insurance. absence not, fact, the effect that proof notices were posted, and view of *8 agent’s of his direct statement to claimant аn that Van Alstine was employer and was under Act, the we think evidence there is substantial give necessary rise to the inference com that all formalities for pliance 3693, 1939, Section Revised were Statutes of Missouri complied with, including the posting and maintenance of notices. Paucher Enterprise Mining Company, Iowa, 1084, Coal [See 1087.] Insurer employee Alstine, contends that claimant was not the of Van employee was consisting but the partnership, of a or of co-adventurers of W. Anthony C. Company and Van Alstine. is This contention theory based on the a a the special has in partnership meaning Compensation Law, usuage; ordinary different what it has in and that an individual member of a the partnership which is under law, law, cannot an capacity, under the in his individual unless he partnership acts alone and not in with another not who is a member the operate firm that does under the law. We already question However, ruled the in ques- favor of claimant. the as presented requires tion here further elaboration.
Van engaged Alstine was under Act. and within the He with others an enterprise paint in repair property certain his and he and employed associates pay. claimant for them for to work directly suggested by No Missouri on this question ease has been party either hereto. contend that the decision Insurer McNamara, 31, (a case) in McNamara v. supports Atl. Connecticut position. their employee That decision holds an a merely partnership, partnership operating was the Workmen’s under Law, Compensation was entitled to benefits The court under said Law. legal entity copartnership there held that “the of a has no doctrine ’ ’ application the a case now before us. The court not hold that did legal the Workmen’s entity operates it under copartnership is a when that such doctrine Compensation contrary Law. the court said On the relation there, existed, “. application where, had*no as there copartnership.” servant the deceased between master a part- that member of principle not a The decision does declare the will Compensation Law operation nership which under the with others if associates himself escape liability under said law he acts alonе. partnership, not members of named the first Oklahoma, by Supreme Flowers Insurer cites a Court of decision It there held that Hill, 705. 119 Okla. 294 Pac. l. c. liability an an to cover policy insurance issued to individual not insured’s Law, does cover employed workman injuries by for a liability under said law received engaged by in by partners enterprise an insured and as in another partners. it insured was also appeared them In case place engaged an another individual other construction work at engaged in at the occurred. The but little injury time said court reasoning in arriving gives no сlear discussion at its decision and support thereof. only by point Supreme
The on is one from case cited claimant Commission, California, banc, v. Industrial Accident Court of en Reed (2d) of determin appeal purpose 73 Pac. 1212. There was held). (employer Insurer had ing liability of insurer had been Mellott, Mellott to W. B. an individual. Thereafter policy issued Gordon, compensable injury became with one associated unchanged. employees. policy their remained suffered one of The employee claimant was the of Gordon Insurer contended that Mellott, Mellott, and that he was not copartnership, injured. individual, held, c. 1213: who court l. argument assump- underlying fallacy respondent’s "The *9 unit, separate is a from the members partnership tion that the distinct suggestions 'entity’ partnership of theory thereof. Occasional of decisions, but, apart exceptional situa- are tions, in statutes from found or of entity, an an association partnership a is not but considered employee employee of is partnership ... an a an of. individuals partner may escape liability partners, each the and individual of no ground employee only partnership on the that and not to such the it be composing held. It immaterial whether the individuals can is several, joint or partners of in this situation is liability the the Reed joint, petitioner . . Mellott was an and was . ., undoubtedly compensation to Reed for workmen’s the liable company perform obligation by paying must its the (Insurance) ’’ award. change of the law to be that “Whether a The decision declares single in- partnership, partnership to individual business ’’ change carrier dividual, liability such does not avoid of an insurance in cases of this сharacter.
1243 While there is Missouri decision has been no which called to our attention that deals with the exact factual here .presented, situation Court, by Supreme opinion Hyde, C., in an prepared in a Work Compensation case, “A entity men’s declared: is not an partnership apart 947, ; from the it. composing par. individuals C. J. [47 ”, 799-806, pars. R. C. L. Macon Wholesale Grocer 1-6.] [Chambers Company, (2d) 884, We, therefore, 70 S. W. l. c. believe 889.] logical question employee more conclusion to reach on this is an that of a each partnership is the also of individual member of said if partnership; any partners of said are amenable to the provisions Compensation Law, of the Workmen’s and if the Commis jurisdiction subject-matter, sion of the person partner, has such individual, by as an injuries is liable said under law received such employee; that, partner, Compensation if such carries Workmen’s insurance, individual, as an is liable to pay carrier insurance against conclusion, award made A insured. different think, we illogical. be
Insurer also authority contends that the had Commission no to make against it, an award even if it did have authority employer; such as to jurisdiction Commission lacked to construe the insurance coverage contract so employed by as to include its workman partnership policy when the insured as an was issued .to individual. nothing There is in this contract of insurance to construe. policy, force, plain is in full pay any its terms binds insurer to against award of the Commission made in favor employees Compensation under Law. The Workmen’s Commission against power insured, had to make an award as and did do. In mak ing against necessary the award insurer it was not construe liability policy plаinly because it any covered insured previously Law. We have if held that there question any which, between insured and insurer a policy over on face, force, is valid question separate be settled in must equity: action in a court of law or power “The Commission had no apply to do otherwise than to enforce its terms ap same pears Howard, (2d) 584, policy.” S. W. l. c. [Kelly 587.] Insurer holding contends that Commission erred in that claim- joint employ ant was in the two or persons. more This contention apparently theory bottomed on the Anthony Company partners jоint employers. Van urged were and could not Alstine It is if the partnership individual members of a are construed employers (Section 3694) then Section Revised Statutes liability joint Missouri which establishes employers, merely *10 meaningless. and We think that might cumulative situations arise whereby might joint be in employ workman the of two or more persons partners who were not and also that individual com- members may jointly posing partnership firm be and severally held under the Law. Claimant could choose to hold one
and not bold in case. another such Products Moerschel [Schultz Co., (2d) may overlap' W. The two to some S. sections 106.] extent; wholly but it does not that the latter is rendered follow section meaningless merely and reason decision herein. cumulative of our
Contention is made that the that powers Commission exceeded in it, having disabled, after totally permanently found claimant to he and following made the award:
“. . . further, employee will and that evidence shows said need additional in medical attention future and said and hereby medical, surgical insurer are ordered him all the to furnish hospital may necessary and reasonably treatment be аnd that cure him injuries.” ours.) relieve from the his (Italics effects of The medical evidence was to the effect that claimant suffered three injury spinal fractured vertebrae cord which resulted paralysis downward; total again from the waist that he will never be braces; leg able to walk without that he has control permanently lost will, throughout of the bowels; life, require bladder and he his nurses; supervision required or hospitalization doctors that he hearing; at the time of the and that he is incurable. The medical require evidence further prove tended to that claimаnt would care prevent legs infection; his bladder to that he should have ‘‘ ’’ massaged, drop, otherwise his feet will which event will walk, braces; never be able to even with the aid if he re- leg proper probably able, time, ceives treatment he will be at some future leg to walk braces; proper hospital aid of medical give him treatment will comfort in the time to come.
Section Statutes of Revised Missouri under which- the respect matter, provides, part, Commission acted in to this as fol- lows :
“In compensation, addition to all other shall receive and the provide medical, hospital shall such surgical, and treatment, including nursing, medicines, may rea- ambulance sonably required days ninety injury be for the first after disability, injury, to cure relieve effects not ex- ceeding in dollars, sum of seven hundred and fifty amount and there- after such additional similar by special treatment as commission may necessary, (Italics order determine to .” ours.) relieve,” Insurer contends that terms “cure are used in the conjunctive injuries claimant cannot be “cured” of his that/since hospitaliza- the Commission lacks the order power to insurer to furnish surgical tion and medical and treatment to “relieve” him. We think a position not untenable. two words do Legislature meaning identical and the must have intended that both effect, given words should be else it not have used both. The construed, possible, give statute if so as to effect to both should terms; guise but we cannot rewrite the statute under of construe-
1245 Allen, 743, ex Mills v. 344 Mo. l. c. tion. rel. The terms [State 751.] Dictionary International are defined in "Webster’sNew as follows: give ease, comfort, or to; give aid, consolation “Relieve—‘to to to; alleviate, assuage, ease, mitigate; succor, hеlp, assist, or succor sustain; lighten, help; support, diminish. aid, healed; healing, or of being “Cure —‘Act of state restoration "to ’’ disease, injury.
health from or to soundness after given in the must be their words used statute usual and well- meaning, recognized and the liberally statute must be construed. may “relieved,” is, given comfort, succor, Claimant in this case ease, but he aid, help, suffering; and in his cannot be “cured” injury. after his “restored to soundness” Kruckemeyer, 730, (2d)
Insurer cites Johnson v. 29 S. W. and Cook 1095, 1091, W. Kelly, (2d) v. 142 S. l. both c. Missouri decisions. with a similar to The first deals ease which not the ease at bar and any way. does not аid us in The second deals with benevolent hos pital plaintiff benefit claim and court held that was not entitled hospitalization further after ceased be a member of the department police department, from which he had theretofore been discharged. It was case on contract and not a Compensa tion case.
It cites several decisions of the courts other of States. In Wilson Company, v. Brown-McDonald 278 N. 254, it W. was held that the power Commission had no to order plastic surgery which only would partially, doubtfully, disfigurement; remove facial and it does not him appear the decision that it any “relieved” in way. Mills, In Millwood Firestone 2 Cotton (2d) 560, S. E. it was apparent held that after it became that no amount of hospitalization or medical treatment could sanity restore claimant to and industrial employability hospitalization and treatment could not be or- expense insured; at the dered of but the case was on bottomed a statute specifically authorizing only such treatment in the event same would disability. period reduce the ease, In 517; Meuse’s 169 N. E. it was that, paid held after insurer had all compensatiоn full, awards paid had out $9000, addition, medical, some hospital and surgical treatment, expiration the statutory period after compensation payments covered expired, had the Commission power had no to order insurer to furnish further medical care and treatment. The theory decision seems to rest on the that since the period by compensation payments covered expired, had the Commis- thereby jurisdiction sion lost further of the matter. In case at bar the is as award follows: Disability “For Permanent Total $15.63 the sum per week for weeks, per thereafter the $6 sum of week for the remainder payments September his life. Said begin 1, 1940, as of to be
payable subject provided in said to modification and review case, swpra, Law.” is not here. point Meuse’s Relations, Paec. Department In U. F. & G. of Indus. S. Co. Supreme reviewed the 207 Cal. Court California statute, precise question. on There the that State authorities *12 relieve,” in connection Missouri, expression in uses “cure and as the injured hospitalization to em the medical aid and furnishing with of ease, as ployees the Law. Petitioner in that totally here, that it established that claimant was contended after was power the the to order permanently and any disabled Commission lacked said, there hospitalization treatment. The court l. c. further or 150, 151: injuries permanent employee that an who sustained
“To hold has the medical treatment for reason that his condition is not entitled to beyond entirely eliminate the word ‘relieve’ from cure would to is be presumed Legisla- that the above of the act. It be the section must it in of the word as mind in the use ‘relieve’ purpose ture had some duty are act, they of the so far as in the and it is the courts is found able, word, jn construing give well all said act to effect to this as as to it 69 said provisions By other act. section of act words and of said part any of said is inter- provided that whenever or section act is by by liberally the court be construed such court with preted ‘it shall extending protection the the for the of purpose the benefits of act injured employment.’ If we should in the course of their persons applicable interpreta- ordinary follow the rules construction to the meaning determining of section 9a of act tion of statutes the said may the furnish medical treatment ‘as providing that required to and relieve the the reasonably be cure effect's of simply to that and relieve’ injury’ we would hesitate hold ‘cure meant injured employee permanently not cure, and that was entitled to injury beyond cure, the that his treatment for reason to medical injury. tend to said We find if such treatment relieve would would Legislature not to provide the intend it difficult to conclude that did for his injuries, for relief as well as the cure of medical treatment the not, injury permanent case the and could and that wherе the injured cured,- not the therefore, employee be it was intended that might required such medical as be furnished with treatment be should injury. When, however, we him from the effects relieve to injunction light section of the in the of the to construe this act seek thereof, question as 69 we think there can no in section found phraseology it duty give liberal construction its our extending ‘in the clearly warrants, and which will result benefits injured Hardy. may of the the This protection’ act for the holding ‘cure and relieve’ were intended words necessitate opinion In as relieve.’ our mean ‘cure same when we only that can be consider reasonable conclusion reached A objects purposes. similar conclusion as a whole act Supreme by Court of Minnesota the case of was reached Miller, 190).” (212 Eberle N. W. Minn. 207, l. Miller, 212 N. 170 Minn. c.
In W. Eberle relieve,” statute, as in the court that “cure and used Minnesota held are with meant or relieve.” "We in accord the decisions reached “cure by Minnesota courts. the California and by
Insurer contends that such construction as is contended for it to requiring hospitalize claimant here effect of by claimant rеmainder of his life. Under the made for award required medical, herein Commission insurer to continue furnishing surgical hospital treatment; but the did not Commission order any period time, that such shall continued definite to-wit during the remainder of claimant’s life. The order is based on requirements condition as the same shown claimant were to be hearing at upon the evidence which said order based. says that Insurer claimant could well be for at home as cared hospital, expense; at less require at much that it is unfair to board, it claimant bed to furnish as with medical well *13 really the latter reasonably care and treatment when all is requires. hospital The evidence indicated that treatment was what was required making so In this Commission found. order the provisions ordering Commission within the statute in “such treatment,” additional similar as that which authorized in the preceding portion statute, of the and which had claimant theretofore receiving. been
Finally, contends that the insurer order does not meet require- “by special ment the statute in that Commission did not order” necessary. that such treatment injured determine Claimant was August been and had in St. Luke’s Hospital from that datе herein, until the date‘the Commission made final May 19, its award By 1941. pay award the Commission ordered insurer to all “neces- sary medical, surgical hospital and reasonable treatment rendered date, including a Dively bill of Drs. Frank Dixon and Rex Hospital $680 and bill of St. . for $851;” Luke’s following touching came the order medical, further future surgical hospital treatment heretofore out. The set Commission almost statutory requirement literally complied regarding the mak- ing special point against of a order herein. The is ruled insurer. disposes points The of all our above called to by insurer attention judgment C., employer. Boyer, is affirmed. The concurs. foregoing opinion C., PER SpbrRY, CURIAM:—The adopted opinion judgment All court. affirmed. concur.