*1 оf of the level to to conform lowering floor tenement of the of of installation and the partitions the removal of store, other in above, addition and an carry the floor to columns and beams discon- lowering the floor necessitated of bakery a oven. The rear for underground to the meter running from necting the main electric light the evi- of in the found, especially when read The facts board. they finding that amply justify a derived, they from were dence which repairs as extraordinary alterations and to structural amounted such requiring written a policy provision scope within the come of premium.” permit additional payment therefor and an [See Co., App. 61 Ind. & Storage Fidelity v. Cas. also Evansville Ice & Co. v. New Amsterdam Cas. 812; N. Co. E. Western Warehouse Ocean 572; Mixture Guano Co. v. Co., Home Ore. Pac. Corp., 176 Fed. Guaranty Accident & 600.] the word Dictionary defines New International Webster’s taking place ordinary usual; having or “belonging to what is usual, normal.” according customary procedure; occurrences “beyond or out of extraordinary The word is Webster as defined kind; usual, customary, regular rule; common order or not of Courtney not at time ordinary.” being repair The work done fall cannot part repair, his the whole and it and death was a said, be not extra repairs were reason, fairness and within that the ordinary. minds, opinion, could differ. Fair our rule, We insured general are an not unmindful the fact that as knows but little rewrite the contract, about his but the court cannot contract. We are should be judgment constrained to hold that the Hyde Dalton, reversed. concur. GC., It is so ordered.
PER by Bradley, adopted is foregoing opinion C., CURIAM: The opinion as the judges All concur. the court.
Gladys al., Appellants, Soars-Lovelace, Child Soars et Incor v. (2d) 866. al. 142 S. W. porated, et One, September
Division 1940.* May Opinion Term, 1940, 1940; *NOTE: filed at June motion for July rehearing filed; 23, September ovеrruled motion to en Banc transfer Court Term, 1940, September 4, motion overruled *2 Bert Steeper appellants. *3 respondents. Brenner
Roach <& *4 HYDE, C. This is an appeal a judgment from of Circuit Court County of Jackson reversing an award of the Workmen’s Compensation Commission for the death o'f A. Charles Soars. This children, in the Soars, dependents, as and of the widow
award was to Court’s from the Circuit appealed They have $11,442. of total amount judgment. com- not sufficient that “there was ground reversal was The of The making the award.” to warrant in the record evidence petent employee of an not Soars was is whether or to be determined issue pro- under the Incorporated, Soars-Lovelace, corporation, defendant Ann. 8238. 12 Mo. Stat. 3305(a), R. S. of visions Section ‘ ‘‘ em- word is, as The follows: part of this section applicable The person every mean chapter be construed to ployee’ as in this shall used any chapter, in this under any employer, defined the service in of any written, under or hire, oral or express implied, contract of persons whose annual election, include appointment or shall (We dollars.” average hundred earnings exceed thotcsand six three 1929, 12 3304(a), S. controlling Section R. part.) italicized the have every employer Stat. the definition Mo. Ann. includes within “using pay.” corporation another for service of Company, July, 1930, In the Soars-Lovelace incorporated Soars con- managing and carry designing, consulting, “to on the business selling tacting refiners, industry general, in the oil the oil and Fivе issued as follows: par hundred of no value stock was shares Soars, share, shares, Lovelace, W. to their C. and share company. stenographer. president was treasurer of Soars and secretary. Lovelace work vice-president and did the office He was until 1,1932, October when of the com- obtained other work because pany’s might income. It return if understood that he was reduced improved. business “con- principally Soars worked outside the office tacting refiners, industry selling general, oil oil and the company refiners, companies, services of the to such individ- uals. company having The plant first did some construction work its “own superintendent job.” construction on In Soars stock, sold 100 of his Anderson, shares to H. M. had sharеs been employed by company September, 1930, since 25 shares M. D. Overmier. Lovelace company’s stenographer continued to hold each. given one share Overmier option purchase was an 50 more Twenty share, shares at per agreement Dollars an between Soars, Anderson and Overmier, dated November agreement This following also рrovisions: contained the
“If reason parties agreement one of the three to this leaves the firm Lovelace, of Soars & Inc., agrees he hereby to sell his stock to the firm at book value as the board determined stock, directors. The *5 place sale to at party’s take time the connection with the firm is terminated.
“The paid salaries be to parties agreement to to this are as follows: per month A. $500.00
“C. Soars per 300.00 month “H. M. Anderson 300.00 month “M. D. Overmier “ any monthly firm at time It that if the income of the is understood above, then the total pay is not the full salaries stated sufficient to money among shall divided amount of available for salaries be parties proportion the amounts above.” above to stated company and April 1, Anderson and Overmier left On companies, “because the income of employment obtained with other They expected to return “as soon company was not sufficient.” they justified” expect work that “could company as the of the so ’’ salary working entitled Thereafter, for there. Soars was reasonable salary all hun- company uр of the net income of the his of five per month, only compen- dred person paid and the other dollars company stenographer. sation was killed on Soars was July 13, 1933, by visiting refinery an explosion, an he was oil while Smackover, death, at Arkansas. After his Anderson came back and finished company the work Soars was to do under contract with at his refinery another oil president Smackover. He was thereafter elected of the company justify but found that did not contin- its business uing its July 1, 1933, $1069.67; existence. total Its assets on were consisting $8.10, $566.90, of cash accounts receivable and furniture and It stenographer’s $494.67. fixtures owed rent $630 office salary company, however, $245. The upon had some which contracts payments they some further were to be made it were com- to when ‘ ’’ pleted. boss; Anderson and Lovelace both stated that Soars was ‘the that no one discharge” him; could “fire or that he “came and went just he pleased;” superior officer;” as had no “he that there was no one company gave “connected with to Mr. Soars directions do,” only instructions to him what to would that the оthers “offer suggestions;” only corporation that the “the was source income he had of kind. salary July, 1930, July, Soars’s was from including $600 to and 1931; for August, 1931, $500, it was September, 1931, and for it was $400. All amounts, of these he remaining received in full. For the three months of 1931 and for the salary first ten months of was his entered on the company books During as for $400 each month. the rest of prior (November, time to his death 1932, to and in- cluding June, 1933), salary his was entered each month $500 each However, month. during that whole period (October, June, 1933) actually Therefore, during received $3727.08. this three-year whole period the company’s prior death, existence to his the total salary amount of credited $17,900; on to Soars books was and the actual money amount of that he in payment received thereof $12,427.08. was $1475, Of this amount Danciger from received Oil Company for (including work expert testimony) in connection *6 not entered on involved, litigation it was was in which with certain directly in Soars deposited by Soars-Lovelace, but was the books shown on the not that this was explained personal his account. It was payments further completed, and not beеn
books because this work had on the Soars salary The account of upon completion. were to be made meeting of the prior the annual balanced to company’s books had been loss, on $2656.19 charging to and July, 1933, by profit in company with 31, 1932; $32.06 and 30, 1933, December and on $4258.87 June charged charges profit to expense 1931. Similar to on December salary аccounts to the and loss were made at both times balance the 1932 to Overmier; one was in balance Anderson and made the accountant, company’s audited salary An account of Lovelace. liability these books, company’s that the nothing found to show Soars, ordering stenographer extinguished. in the salaries had been they paid wouldn’t be chargе-oil entries, make these said “that to anyway. charge-offs pursuant to the made Anderson said the were that salary agreement out. he had hereinabove set Lovelace said agreed charge-off there no because with Soars to have made was salary. possibility receiving any unpaid of ever of the old
We the correct result think that the Court rеached Circuit ex it the terms because must be held that Soars was within average 3305(a), clusion clause of whether “his annual Section earnings” salary fixed credited his be considered amount of to as actually account on the received company’s books or the he amount money. given Considered the fixed for which as amount was books, exactly Sayles credit on ruled in v. his situation was that City Co., 1046; Kansas (2d) Structural 128 W. Steel Mo. S. (2d) State Allen, ex rel. Mills v. 344 Mo. 128 W. Morse S. v. Tie (Mo.), (2d) Considering Potosi & Lumber Co. S. W. only the money during actual amount of his Soars received three years as by President company, and chief officer of he was barred the exclusion clause, Sayles under the rule stated in the case. This Klasing actually applied was rule to thе v. Fred facts Schmitt Contracting Co., (2d) 1011, 73 W. was Mo. S. which overruled Sayles case insofar as it went further seemed to re add quirements contracts, longer definite annual term not war ranted the terms of the Workmen’s Act. Compensation Claimants seek to actually limit only money consideration received, not actually during what prior was year death, received to Soars’ nаmely, language average earnings” $2927.08. The “annual in the Act shows on its year, face it that could be limited to one because that coverage Clearly could not be an earnings. of annual average earnings of'annual employment for the whole time of is to be con where the employee sidered had been more employed than one year “by the grade employer employee same in the in which the was employed at the time 3320(b), of the accident.” Sec. R. S. [See further contend Claimants Ann., 1929, 12 Mo. Stat. 8259.] year only the last under which change grade, there was that all Lovelace, and Overmier Anderson considered, because must be only year, “and was during since left Soars company formerly per cоmpany the duties remaining with the engineer then *7 upon necessity fell by mentioned of those above formed all three of managing chief However, president, all times Soars was at Soars.” higher grade There majority and “the was no owner, boss.” officer, and, therefore, hold that was no there than that for him to take we grade. change of Legislature the
Furthermore,
nоt believe that
intended
we do
corporation,
owned more than three-
that the chief officer
who
of a
stock,
bring
act,
himself back under
fourths of its
could
by crediting
any year,
periods,
end
to the
at semi-annual
back
by
salary,
corporation
part
previously
of his
fixed and
book entries
salary properly
credited to him after the
such
fixed and
amount of
it,
him
put
credited to him had once
outside of
under the terms of the
corporation
legally
him
exclusion clause. When the
once
owed
that
amount,
insolvent,
even if he
collect
it
did not
before
became
the debt
except
would not be
wiped
by
provided
methods
under
out
gift
If
a
Bankruptcy
corporation,
Laws.
he later decided to make
to the
why
change
should
under
Of
that
the exclusion clause?
his status
an employer
permitted
course
to defraud
be
actual em
should
by
ployees
crediting them with more than he intended
or knew he
to
pay
Compensation
could
them in order
to avoid Workmen’s-
Law.
However,
superior officer,
here
“the
with
Soars was
no
boss”
no
whom
direct,
one could
discharge,
powеr through
control or
and with
his
stock
to
ownership
corporation
majority
control the
elect the
matter,
directors.
practical
a
fix
power
As
had
actual
to
salary.
his own
may
While
officer
an executive
have
dual capacity
so
be
as to
an employee
also
the act because
the character
under
of his
corporation
relation to the
and the kind
does,
of work he
it has
been frequently held that one
is
majority
who
both chief officer and
owner in actual
operations
control of
does not have the
of an
status
employee under
Compensation
Workmen’s
Acts.
v. Shawnee
[Barlow
Co.,
Inv.
229
1,
Mo. App.
35;
48 S.
(2d)W.
Aitchison
Industrial
v.
Comm., 188
218,
Wis.
205
806,
N.
44
1213;
W.
A. L. R.
Midwest
Motor Coach Co. v.
(Ind.),
Elliott
signifies . . and serv master in mind the law of act had “the of the framers arising out duties, rights, and limitations relationship, ant and the upon services relationship bottomed same;” “the is and that of the one that name or by by the servant —whether . rendered . . be other, whether employee to the ... synonymous, as workman right of characterized peculiarly is employer, master оr right of control Clearly one had latter. no vested in the control his authority determining amount even as over Soars or Gro v. Macon Wholesale out salary; pointed and as we Chambers (2d) act “is a ‘Workmen’s Co., 70 W. our cer Mo. S. ” Compensation Act.’ ‘Employer’s not an Act’ and Compensation incorporated an the substantial owner of We, therefore, hold that manages business, operations, and directs its entire completely Compensation Act bring cannot himself under Workmen’s corporation part salary his after it become giving back has *8 which, obligated pay exceeding him an that under legally amount being Act, prevent also him from exclusion of would the clause the it. within by estoppel further of insurer the follow assert the
Claimants alleged policy, charging ing provisions premium of of that on basis: corporation, employer
“If this is a the entire remuneration of President, any Yice-President, Secretary, or Treasurer shall be dis- subject charge premium to a applicable closed' and made at the rate exposed, hazard which each officer is to the which rаte shall be remuneration applied to actual such officer but not in excess of per week.” <$100 however, policy, provided, further
This as follows: description with “This renumeration and the estimated remunera- President, any include Secretary tion shall also Vice-President, if Employer, corporation, actually or Treasurer this if perform- a ing ordinarily such as are undertaken duties superintendent, wоrkman, any designated or such foreman not engaged officer so enumeration, be description shall not included in such or estimated remuneration. page “Declarations,” On the entitled there were blanks filled in typewriter; space with and no other blank a was filled in any to show following: employees, except Operations “Classification of by (b), (c), one indicate each other than more classification “Note: If (d), etc. per Estimated Total Rate Estimated $100 Premium Annual Remuneration Remuneration (a) Engineers Consulting, Mechan- — Mining Civil, ical, Electrical Engineers and Architects —not engaged actual construction in .73 25.00 (N. D.) Min. $3000. .................. P. any
(x) President, Vice-Presi- Secretary dent, Treas- corporate Employer urer of performs duties Superintendent, Foreman Workman
(2) (a) Office Em- Clerical ployees.............. Draughtsmen (engaged exclusively 1800.00 .08 (b) pro- in ) fession —office duties only. August, 1932, policy
This was when issued Lovelace and Anderson working company. engi both for the salary were The amount of closer to drew; signifi neers is theirs than to Soars ever and it is nothing space (x) provided listing cant is written in the for president’s salary, “рerforms Superintendent, if duties of Fore certainly man or Workman.” This is very support substantial Furthermore, claimants’ Compen contention. the Workmen’s authority sation must find Commission to make awards Compensation Workmen’s tribunals, Act. other Like administrative Legislature it is creature jurisdiction and does not have *9 authority except or Legislature that which the upon has confеrred it. authority If the enlarged by conferred could be holdings its own waiver, estoppel, by contract, even the Commission could itself add powers own rights and create beyond and duties what Legis provided lature or intended. v. Potosi Tie & Lumber Co. [Morse (Mo.), (2d) 477; 130 S. W. Chambers v. Macon Wholesale Grocer Co., (2d) Mo. 70 S. W. 960-965, Am. Jur. 242- secs. 43; Public Service Ry. Comm. v. St. F. Co., L.-S. Mo. 256 S. 226; City W. of Columbia v. Public Comm., Service 329 Mo. S. (2d) 813; W. Empire State ex rel. Dist. Elec. v. Co. Public Service Comm., 339 1188, 100 Mo. W. (2d) S. If company insurance 509.] overcharges, or an improper makes charge, fraudulent rights may against be created it which could be enforced at law or equity, that would not authorize the Compensation Workmen’s Commission Act or the terms of excluded to persons make awards denied it. Legislature has authority exercise CC., Bradley Dalton, concur. affirmed. is judgment The C., adopted is Hyde, foregoing opinion
PER CURIAM: The concur. judges All the opinion of the court. Reed, County, Defendant Error, v. Jackson B. Plaintiff Clarence (2d) W. in Error. 142 S. September One,
Division 1940.* plaintiff Proctor Proctor for in error. Opinion September Term, 1939, '6, 1940; filed at *NOTE: March filed; May rehearing Term, 1940; May 7, motion overruled at
motion'for filed; *10 en motion to transfer Court Banc motion overruled Term, 1940, September 4, September