*1 with- bringing this suit bitterly plaintiff criticizes Defendant also disclose record does thorough investigation out facts. signs com- days printed the that within a few after defendant request was plained of, requested plaintiff them, him to remove trial de- during the refused, and suit It is true that followed. attorneys signs if his willingness remove fendant evinced a given and then later first refused consent, would but that consent was in- expenses, for all his condition that be reimbursed defendant no We -see attorneys’ declined. cluding fees, plaintiff which offer reasonable sought merely because a deny the relief plaintiff reason dur- accomplished adjustment prior to or controversy was not of this ing the trial. Tt error, should be affirmed.

Finding no reversible All concur. is so ordered. Hail Evans, Employee, Appellant,

Dale In v. Farmers Mutual Hail surance Farmers Insurance Employers Employers, Iowa, Mutual Liabil ity Employers Casualty Insurance Mutual In Respondent. W. 2d 705. 217 S. Insurers, surance Opinion February City Appeals. Kansas delivered Court *2 I). Alexander, Ausmus & Harris and Warren appel- Welliver for , lant. John respondents. E. Linster for

BOYER, C. This is an from a circuit of the County of Boone which set aside an award of the Industrial Commis- sion Missouri in favor had of Dale Evans who filed a claim for compensation before the De- Compensation, Division of Workmen’s partment of Labor and Industrial Relations of Missouri. The claim lists both Missouri, the Farmers Mutual Hail Insurance Company of and Company employers, Farmers Mutual Insurance Iowa, Hail as and gives respective also the name and of their address insurers. alleged date of the accident which claimant was to have sustained leg 29, 1946; given broken was as June and accident place Hotel, doing Avoca, Iowa; as Avoca and that work at the time was adjusting upon growing crops. losses hail For brevity, appellant will referred employee, hereafter be and Company the Farmers Mutual Hail Insurance of Missouri as Farmers Mutual Hail Com- Insurance , pany Company. as the Iowa Iowa Company deny insurer The Missouri its for answer to the claim Compensation jurisdiction the Division Workmen’s has claim, and.allege that Dale Evans was of the Iowa alleged injury Company on the date of his was not an em- they Company time, deny of the Missouri at said arising accident the course ployee sustained an out of employment. they states that Company

The answer of the Iowa and itá insurer Workmen’s appear specially, general and in the Division of states that Missouri does Compensation the Industrial Commission of jurisdiction action set forth parties have or the cause of allegations claim concern the Com- claim insofar as the Iowa its Company pany answering, its insurer. Further deny every allegation contained in claim insurer each and compensation. ad- claim heard a referee on June It was' Companies that the

mitted both the Missouri and Iowa claim prescribed by law; compensation no filed within the time granted by parties It all paid and no medical aid furnished. been corporations Company and are that the Missouri entities. It was admitted that separate major employer operating provisions of the Missouri was a Law, liability Compensation and that its was covered Workmen’s part Iówa insurer. There was no such admission on the its testimony R. hearing consisted of the The evidence at of Paul Company; Rutledge, who was following Evans, employee, and certain exhibits. of Dale engaged Company-is appear from the evidence. The Missouri facts against insuring crops loss hail in the State the business of Missouri, engaged the same business and the Iowa cus- prior 1946, it had Long of Iowa. to June been the State *4 states, in companies engaged in the same business other tom for Company upon call the Missouri to the Iowa to including Company Missouri their to adjusters employed to states send heavy, unusually adjust when their work was and losses for them practice had available. The in such case Company the Missouri men wage, employees Company pay regular to their for the Missouri Company would" expense, and car and the Missouri bill the traveling salary expense and and for an amount in other for in actual the Missouri which to resulted excess cost Company. 29, monetary profit 1946, Missouri On June and a 1986, general employment in employee been since 1946, February 1, employee Mis- Company. On and the employment written contract of where- Company entered into a souri Company year agent appointed the Missouri for one in he was fees, policy accept money applications, collect authority take with to perform therefor, and to tasks directed receipt and salary be Company. to officers traveling and hotel and month, commission ex- plus $210 a pense. upkeep also The use of an automobile and the thereof was Company. furnished the Missouri Rutledge, president

C. a Rutledge, P. brother of Paul Company. Iowa Some 1946, time he called the June him Company requested adjusters and send Iowa to to adjust told help Rutledge to losses. Paul called and him finish to Iowa Missouri, go to his work and directed him to adjust finishing work help Company' Upon the Iowa his to losses. 1946, Missouri, 27, in northern went to June on Iowa and arrived at the town of Avoca that afternoon. He made contact adjuster with for the Iowa and worked rest stayed day might. him. Hotel that The next He at the Avoca him morning working Company gave some of the men adjusted day a list to be losses and he worked on claims all that these again stayed night Avoca, alone. That he and at the same hotel morning adjusters the next he and other decided the Avoca to leave go Atlantic, Iowa, Hotel and procure to in order better accom- to Employee get grip back the hotel to his and modations. went and out, intending adjust day Avopa check losses that between Atlantic, stay night. leaving Atlantic As he was hotel,, carrying grip sack, paper and a small electric fan in a his caught stairway foot mat on on a and he either fell or down sat leg. describing happened, broke his In what stated landing, fall, around, did not he turned sat down leg. grip and broke his Later in his stated that his he caught step post on the bannister fastened his foot under the He taken hospital Atlantic, at the time fell. to a hospital Joseph, Missouri, later addi- St. where he received away eighteen days, He was in hospital tional treatment. and was from January as a result the accident work until he did return to full work March time until adjusting In in Iowa, employee losses Company’s used the Iowa proof forms, payment loss but did not issue checks or drafts All on in people losses. the losses worked Iowa were for insured in adjust No one directed him how to losses or what pay; slips directions he received all the were furnished some- gave the Iowa one connected with location permitted He was to select his hotels and claims. own did not dis- day. The going one the work was to be the cuss with what next supervision had full secretary of the Missouri control him go do, and directed where to over what to *5 gone he could be recalled at after time. This Rutledge, secretary testimony of Paul of the Missouri Com- was the he considered sending testified the matter men pany. He also that of just “was a business transaction or elsewhere between the to Iowa com- company may be, and the Company.,” whichever panies, employment The and em- Company contract of between the Missouri n ployee provided, among things, entering a contract into that with another cause for writing hail insurance would be cancellation the remuner- of contract and the forfeiture of salaries and ations furnished thereunder. expense pro-

It was shown that hospital medical and agreed by employee vided It was $574.95. himself amounted to specified physician permanent disability, that a should rate the reported parties that all by report. would be bound doctor The twenty leg that he found ten knee per disability cent at if swelling persisted, swelling persisted. and that the has findings referee made and conclusions of law of fact which twenty disability he found the. per permanent partial cent right leg knee, weekly at the compensation for which he allowed of weeks, expense $20 amounting $640, for 32 medical findings amounted total $1214.95. to a of In his additional allowance rulings fact and evidence of law he stated that he found from the 1946, employee injury 29, sustained an accidental on June employment which arose of and the course of his with the out Farmers Hail Company Missouri; Insurance that the em- Mutual ployer and insurer knew or should have known that the medical, surgical, in need hospital treatment, had failed to furnish such treatment- The referee further found that from all alleged not an em- ployer, The Farmers Mutual Insurance report

time of accident. This of the referee 7, made November 1947. The Missouri and its insurer filed their application for a review full commission ap- made award the referee as aforesaid. The did not peal from the decision of the referee.

The final award of the full commission made December including findings rulings law, of fact duplication was a referee, made and affirmed award of the on'review the - - referee. appeal and its insurer filed notice of Upon County. appeal. circuit court of Boone did consideration of the in the circuit court the cause taken May 20, advisement and find- the court entered its * * * ing in which it is recited that “the court finds the issues herein for the Farmers Mutual Hail Insurance Com- Liability pany Missouri, Employers employer, Mutual Evans, against insurer, Insurance em- Dale ployee; the facts found Industrial’ Mis- Commission of do award, souri and that there is not sufficient evi- in the record there- making dence to warrant of the award. Tt is In- adjudged fore ordered and the award of the *6 754 aside, be, hereby

dustrial Commission of set Missouri same is the and this proceedings cause remanded to said commission for further notice, of therein, required by timely as filed law. The appeal transcript duly upon and the case is for review the here the respective briefs the parties. Appellant circuit finding judgment asserts error in 'the of the contrary judgment

court as is above set forth and that claims said foregoing, applicable the law the In addition to the evidence. the injected respondent, substantial appeal by issue into this question employer of claim- the of who the Com- "injury. ant at the of his It is time contended rule pany he was servant a loaned loaned therefore, Company at and, employ he in- of the Iowa injured. in connec- time he was This contention will be considered the finding tion with of the circuit court. finding circuit Our first observation is in reference support judge the facts found the commission do finding We do award. not know whether the considered the court general condemned the commission too or for what reason character being support award, insufficient to in cases general finding of the com law has been declared to be that a finding- every implies mission fact 1034, finding. 1030, general Buttiger Haid, rel. 330 Mo. State ex v. its required (2d) 51 to make S. 1008. The commission was not W. or an.y particular findings party If either desired more definite. requested com specific findings, findings such should havé been request complaint will mission, default of such Smith 156; W. Remington (2d) 209 be heard. Jones v. Arms S. (2d) It a failure Corp., 189 S. W. is not v. General Motors finding award, find defeats an but a of facts inconsistent facts that Buttiger Haid, supra, l. c. with the v. award. State ex rel. that, supports appears the commission every It us fact found -finding fact inconsistent award, there was no with the award. making there evidence in record to warrant Was sufficient finding circuit was that evidence award? The court why so found. insufficient, stating any reason the court without employer company was the specific finding was made as to which No find- only general at the We infer time of the from accident. can opinion the court was of ing in favor of Missouri Company employ that claimant was not in the of or inference, was no Except accident. there time of issue. ruling servant reference to the ffianed f o administrative pattern judicial review of decisions Supreme specifically prescribed definitely bodies has been (2d) 197 S. W. Corp., 355 Wagner v. Electric Court Wood Seabaugh Mfg. Co., 355 Mo. and in v. Garver Lumber in a review shall pattern S. W. 55. The is this: That while supported inquirjr clude an whether the decision of the commission yet record, by competent upon substantial whole *7 reviewing may its “this does not mean substitute that the own judgment on administrative tribunal. the evidence for that of the it have But does authorize it to decide such tribunal could whether result, upon reasonably findings, made its its considera reached clearly and,to it; tion of all the evidence before set aside decisions Subsequent weight contrary overwhelming of the evidence.” adjudications con recognize our courts appellate consistently 210 pattern. Corporation, form the Coleman Brown Strauss v. (2d) 537; W. Hotel, (2d) 55; S. W. Walker v. 211 S. Pickwick v. 52; Crawford (2d) v. A. J. Sheahan 211 S. W. Jones Granite supra. Remington Arms, Co., cases,

Guided are of foregoing law as declared in the we opinion its finding including and rule commission, that Company, that employ claimant was in the Iowa supported by competent evidence, substantial commission could reasonably have it did make. made the.award opinion We are also of apply loaned servant rule does not preclude award that was this case. made to in. determining servant, In the status one as a loaned in order to original escape enable the employer ¡liability, con many there are prin ditions and factors that must be taken into consideration.- A cipal appears original resign one be that the master con must full trol being, beng of the servant for the time it not sufficient that partially servant is under the a third person. control of In case v. Rindskopf, O’Brien 334 (2d) 1085, 70 W. S. beginning page 1242 opinion Report, the State are relevant and pertinent declarations of as law follows: “While it one is-true that may and, nevertheless, general another, be re service with spect particular work, may may another, to a be the servant of who acts, yet escape original for his liability become liable master must surrender full performance control of the in the servant of said partially work. The fact that the servant is the control of person third -willnot original any release the wrongful master act ” ordinary employment. done in the servant course of his pertinent opinion 39 authority p. 1274, cites C. J. sec. leading of Standard Oil case v. Anderson. 212 U.S.

215, 53 L. Ed. 480. principal Another factor for consideration.in servant case a.loaned effect, and, part be consent

is that there must on the agree change employers.. that he must to a This rule is announced upon-by eases cited and in both the Missouri relied the Missouri Com pany. E. and R. G. Realty. (2d) Lee v. Oreon Scott Co., 96 S. W. Ellegood App. Freight Lines, Inc., 236 Mo. v. Brashear the em- There S. W. evidence in this case no change employers.

ployee gave ever his a consent to employ its Company employed the Missouri did con- employee. relationship is based on master servant -of from the tract and could be no inference there reasonable con- into that the ever intended enter contemplated or written He was under relationship tractual with pursuance of employment contract with Missouri draw- and had been which he was entitled to substantial remuneration stipulated ing $1000, annual bonus of addition to about salary. contracted provided His contract event he remunera- subject all would him to a forfeiture of Company. According tion under his contract with of both and control remained under the direction *8 time, and re- subject of said and was recall if to immediately There called he Missouri. was no sur- would return to emplyee. render of the Re- control the ^of Ellegood. Company, upon spondent, especially the Missouri relies the Brashear, case, Ellegood in was an of employee which it was ruled that and the similarity and contends of facts between that case for a pending Upon find difference of facts one. examination we that.a pronounced similarity. to- Ellegood, is more than a of service gether truck, a hired Brashear with the use of had been from engage freight. transporting owner in business of the truck to of complete engaged question He was with the and was under truck where everything control and direction of Brashear as he did and to go. protracted for a period he should His service continued cover- many ing months, pending whereas in the service of case casual, employee merely with the Iowa was and he still subject original employer, remained to direction and control of his injured sued for Ellegood Brashear damages. subject pleaded plaintiff The answer defense that to a provisions Compensation Act, Missouri 'Workmen’s of rights Act. had were under said whatever he had also Compensation filed a with the Workmen’s Commission claim sought compensation Freight as an of Brashear Lines. in evidence in that case and was This claim was received held an to be appellant existence of facts make admission em- binding Compensation subject Workmen’s law and was ployer explained. plaintiff on unless contr'adieted or On account of factual here cases decision in the two otir differences Ellegood is with the servant conflict case. a loaned nearly case, supra, is applicable Lee more ruling in the agree and we to what was pending case, situation there said

757 re plaintiff fact opinion, in the c. 654: “The course of l. pre realty direction and control mained employee. It lent relating to a application rule cludes law compensation purpose- spirit accord of out of with the who guessing of put the task injured that an when be and be compensation, look for employer his is to whom he must ’’ escape. may end all another, that in the bandied about from one so acci that the contention The Missouri makes the further employment, appellant’s dent did not arise out the course 344 Metal Works v. & Schuske cites Seaman Smith Dry Story Laundry & Ricketts v. Mo. W. (2d) 127 S. cases the In of these em Co., (2d)W. both Cleaning 155 S. employment and ployee his departed from course point. are not injury. The cases mission time of own at the sufficient to evidence was We entertain no doubt whatever that the accident arose employee’s the commission’s Seal, Quick employment. Buckner v. out and in the course of his (2d)W. Co., App. 273, Mo. 118 S. Liberty Mutual Ins. Inc. Mo. Reading Club, 234 Companion 100; v. Woman’s Everard Home Merchantile Beem v. D. Lee App. 760, (2d) 51; 122 S. W. H. Auto 441; Watson v. Marshall’s U. S. (2d) 85 S. W. Supply, Inc., App. 1219, 238 Mo. 186 S. W. before the complaint

There admission of evidence erroneous letter hearing, employee offered in evidence a During the referee. Rutledge, secretary written by Mr. Compensation in reference to Division Workmen’s

Director “So things writer stated: Among claim Mr. Evans. Mr. Evans in his determine, statements of claim far as can we opin- for, you know, it has been our compensation are admitted *9 Mr. was at all times an of ion, personally, that Evans hearsay, ground it was objection on the Company.” Over will be for what it’s worth.” stated: “It admitted referee Wolf ruling in under the Shelton v. letter was inadmissible However, 93 W. under S. Cheese case, we think the error this facts and circumstances shown is in effect harmless because of Furthermore, facts in his letter. brief same as the stated “Respondent does not belie've respondent contains this statement: really damaging respond- the letter contains admissions ample independent theory case.” There was ent’s commission, finding and conclusion the letter complaint respondent quoted above the statement is substantial admission of evidence without against erroneous merit. appel- brief, supports the contention of in its

The Iowa In view finding and award of the commission. behalf of lant in case, approving the' the conclusion which we reach employ commission that the com- the motion is not to consider of that pany dismiss the to it. judgment

For reasons above be reversed set out should the cause remanded to trial court with direction to'affirm Sperry, recommends. the commission.' -The Commissioner so award C., concurs. Boyer, C., PER foregoing opinion adopted CURIAM: The opinion as the reversed and cause the court. remanded trial affirm court to the award of direction All commission. concur. May Respondents, Pack,

John R. Pack Elsie v. Ira Pemberton Appellants. 218 S. W. 2d 125. Pemberton, and Frances City Appeals. Opinion February Kansas Court of delivered