*1 рart of the money be lost. Nothing paid had been on the claim at the time of the trial. If any amount is recovered in the bank- ruptcy court it will be credited on judgment in this case. No mention of this claim appears in defendants’ motion for new trial. say Defendants the court erred in “failing to make a finding of fact or conclusion of plaintiff law that right rely upon the alleged misrepresentations.” At the close of all the evidence the court made a finding of facts substantially as we have heretofore recited them. Defendants did request not the court to make a find ing upon the of plaintiff’s issue right rely representations on the and did not quеstion mention that in their motion for new trial. Defendants, having request failed a finding issue, on that .can- sec; not now question. raise the J., 868, p. C. “All fact [3 766.] issues specific which no findings are made shall be deemed found in with the result accordance reached.” Code Civil [Mo. Procedure, sec. 114(b).] pray for
Defendants a remand of thе case because one of the defendants, Greubel, present peti Alfred was not trial. The June, trial tion was filed November 1947. ready counsel announced The record shows that defendants’ trial made no request continuance. They cannot now object. finding judgment are cor- and the law evidence
Under the All concur. is affirmed. and the rect Orpha T. (Deceased), Johnson L. Howard Employer, Pipe Company, Line Appellant, Lakes Dependent, v. Great Indemnity In Company, d Hartford an Accident and surer, (2d) S. W. Respondents. 40805. 215 No. One, December Division *2 appellant. Southall, for B. J.
B. C. Southall respondents; Leo T. Schwartz for John A. McGuire of counsel. under the Workmen’s Court [460] affirming VAN OSDOL, C. Appeal an award Compensation Law. denying compensation from a The claim was in a *3 of the proceeding Circuit death of the $10,380 for the widow-dependent for benefits of the Howard L. Johnson. ployee, of em- contract “from the evidence found Commission into herein was entered employеe employer
ployment between the accident, of acci- series alleged and that the the of Kansas State This of State Kansas. the dents, occupational disease occurred or compensation must be and is Commission, therefore, hereby denied.” has no jurisdiction in premises jurisdiction of only appeal is question presented this to determine the claim. the Commission 3700, R. 1939, A. 3700 R. S. Mo. S. provided
It is Section § Compensa- Workmen’s (b) chapter (Chapter . . “. This injuries state, regardless all received this Law) shall tion made, and also to all in- employment the contract of of where employment under contract of juries оutside of this state received employment any of state, made in this unless the contract case provide.” shall otherwise operating employer major employer is under the Mis-
Where Law, Compensation applicable Law is to all in- souri Workmen’s of employ- this state and under contract of juries reсeived outside (unless provides). in this the contract otherwise ment state 448 75; 2dW. Mo. 417, 101 S. Co., 340 Life
Adams v. Continental Ins. W. 207, 65 S. Mo. Co., 334 Daggett City v. Kansas Structural S. W. 103 Co., App., Mo. 1036; 2d Toon David G. Evans Coffee v. W. 181, 195 S. Gorum, Mo. Loudenslager 355 2d 533. v. See also employ fact, the contract where, as a 2d 498. The test of is employer and is and the relation ment enterеd into their acts parties as evidenced created is the intention of the parties, business, conduct, nature of the the situation Motor East Texas Rendleman v. all the facts and circumstances. Yellow 171; Overcash v. Freight Lines, 287, 196 W. 2d 355 Mo. Thompson, 678; Deister v. Co., Transit Mo. W. 2d App., v. Riss & 15; 180 S. W. 2d Kelsall place S. W. 2d 329. contract And it has been where the said employ employer is made relation of the and the occurs place ment established or the final act created is the where binding which makes a v. Yellow Transit contract. Overcash supra; Life Ins. Thompson, supra; Deister Adams v. Continental Co., supra; Daggett City Co., supra. Structural Steel also Freight Lines, suрra. Rendleman v. East Texas Motor appellant-claimant’s although that, is contention Claim ant’s injury by accident, decedent suffered death from received series of accidents, occupational Kansas, (the “ap disease in final act proval” of the contract) completing the contract of Missouri; occurred in and, admittedly operating since under the Missouri Compénsation Law, Workmen’s the Commission’s finding and final denying award compensation and the Circuit Court’s judgment affirming the award were erroneous. Employer-respondent, Pipe Great Company, Lakes Line had its *4 general office in Bryant Building, City, Kansas Em- Missouri. ployer’s рresident, Harry M. Moreland; and vice-president, gen- its superintendent eral personnel and manager, Skinner, E. II. were sta- Employer’s tioned at general office. Employer maintained district “field” or operating states, offices other including a district office for its Fairfax district City, Kansas 'general Kansas. From its office in Missouri, Employer supervised operations of its lines passing through Kansas and Missouri, and other All original states. records pertaining to employees kept general wer'e Pay- office. roll data and employees’ records of “time off” kept; were there and Social Security taxes were paid, employеes’ and income was with- held for income tax purposes through general at its office. Employer’s Fairfax district office charge was of a district (cid:127) superintendent. A “terminal” line was also located City, Kansas, being charge Kansas the teiuninal of a ter- Employee, Johnson,
minal superintendent. When Howard L. was em- ployed, superintendent Employer’s district was Noble L. Linch. application testified at personally Linch the Fairfax temporary on pnt Employee Linch Kansas. seems district office examina- subject physical 1933; and, August 1, work a laborer as August tion, was “transferred” He continued gauger. a employed as permanеntly 16th. He was in the continued to work Missouri, and City, in Kansas his residence 18th, or death, July 13th his (in Kansas) until Fairfax district [462] cards were (form) Change Transfer” “Employment Rate Two The L. of Howard Johnson. the employment used with in connection August 1933, and the employed indicates Johnson was first card For Ter- “Reason 15th; the stated August employment terminated Thе second Position.” to Permanent is, mination” “Transferred filled-in No. card, Exhibit discloses as Claimant’s identified L. residence Howard the name statement of insur- name is as the Missouri; the stated City, Claimant’s examining physician as report a of an is shown beneficiary; ance employed a 17, 1933; Johnson was August date the card indicates OP2; Dеpt. T. the stated reason gauger August 16, K. C. Comply A. Labor, to N. R. Code. employment is, “Additional with Employee’s signature, and Req. exhibit bears 8/21/33.” Harry signed shows M. Moreland” the exhibit “E. H. Skinner secretary-treasurer Em- “Approved.” over word printed payroll ployer “simply exhibit record that was testified the was signed employed.” time the at the Skinner gеneral August 28, the card at the officeon or after applied Employer testified her husband Claimant-widow Bryant Building job,” at the later “for a received a letter from Employer. “application said accepted The letter that his had been go him over at their terminal the Fairfax side to “heading” bearing to work.” Thе letter had a the name of showing ployer Employer’s general Bryant offices were in the City, Building in Kansas “The Missouri. best I can remember it (the letter) signed by Mr. Skinner.” Her husband went to work day right away” receiving “the next after the letter. The letter destroyed long keep “has ago. Employer been I it.” In- didn’t tending prove Employer surer introduced evidence had never used Bryant bearing Building and, infra, “letterheads” address as stated Skinner testified the office did not employ operating field or employees, gaugers. such as
A witness, loader foreman of in 1933 and a distant rela- tive of Employee, testified Employee came to see Employ- witness at *5 (in Kansas). er’s terminal “came to for work” “called on me.” The him witness “referred to Mr. Linch because hiring.” I didn’t do the testimony
It was the of Linch he had authority that to “employ put men them to work” When within his district. ap- the Linch examined position, for a applied
Ploward L. it, decided to him about 193.3), plication (dated August 16, “talked subject to him” hired right jоb he all the that would be for Change Rate “Employment filled physical out examination. Witness examining an it to 4, and sent Exhibit No. card, Transfer” Claimant’s amade by physician, witness return card the physician. Upon of the Witness general office. original the copy the and sent the to card approved hiring “had be no that to stаtement to the general ap- he was be hired until the office or he wouldn’t that cards of proved by vice-president.” the Names Bryant in the men who hired office were were “submitted to vice-president Building If the dis- approved by to be Mr. Skinner.” hiring vice-president “would approved person, Linch’s .act (the employeе) would be direct me he didn’t want man. He this paid discharge he him.” the time worked and we would they ployees they put payroll were told hired and were on the were (the general before were sent office. “If he records unsatisfactory ployee) they disapprove you him turns out then ter- him.” minate Skinner, vice-presidеnt, E. H. testified that when an temporarily employed employee’s name, was but classi-
fication, rate, performed and tasks were shown on time sheet kept Temporary in the office. employees district paid “pay were superintendent. order” the district When a man was transferred temporary employment permanent from employment it was the practice to employee” “terminate the and issue a new card. That was (Claimant’s what was done in Johnson’s case. 4, supra.) Exhibit No. “We gauger do not do employed any hiring on a in the officefor field basis the jobs.” district superin- When or the superintendent tendent terminal interviewed the prospective employee. After the man go work, instructed to perma- prepared nent records were general forwarded to the Bryant in the Building. office they “cards after were cheeked by my passed clerk were signature.” in me for Pay checks’of permanent employees genеral were issued from the office. Employ- contingent his, was not ment the vice-president’s, approval. An paid employee might be a time before the employment records (an reached the office. “If he employee) already has been hired, only thing there is one I can do approve is to thе employment paid by so payroll record he can be department, .the and naturally if somebody be it should that I concluded should not be permanently I employed, would take steps necessary whatever to direct” superintendent replacement. district find “Yes, I say would that any man is hired out in the field subject is my approval.” approval vice-president payroll is purposes. “Cer- you tainly going any are not to have clerk ... your payroll
451 of being type formal some department people without paying there approval your personnel on records.” was the Commission
Considering evidence, we beliеve whole in into employment entered justified finding in contract of judgment for that purpose our Kansas. our to substitute is not Commis- Commission, of determine whether but we endeavor to here its result findings and reached reasonably sion could have its Wagner it. Wood v. of all the evidence before consideration of Seabаugh’s 647; De- Corporation, W. 2d Electric 355 Mo. 55; S. W. 2d pendents v. 200 Mfg. Carver Lumber Bros., 209 W. 2d 149. Scott Wheelock 357 Mo. S. Employer’s passed lines evidence introduced tends to show
through Kansas; of and that a terminal was sit- states Missouri operations City, Kansas; Employer’s uate at Kansas were di- that operational districts, (Fairfax) vided into “field” or оne of which in charge Linch, superintendent, the district was 'located Kansas; in operation employees gaugers that such as worked—not (and states). Employee Missouri—in other never worked for Employer least, in Missouri. At it is reasonable to infer that entering parties, hiring, contemplated into contract of plоyee’s Employee began work should be done in Kansas. his work in Kansas after superintendent, Linch, his interview .with district employment August Kansas. The as of'date 1st to seems have been temporary of a a Employee character as laborer. was “transferred” permanent employment gauger, according a tо Employer’s rec- .as ords, August 16th, the date application permanent of his ployment. Employee pay drew his a as from and including day. that There tending was evidence to show that Linch authority had actual employ; that employ he did temporary permanent personnel in the Fairfax district; and there is substantial grоund for a reasonable inference that “approval” of his acts in employing operating personnel for Fairfax district was but supervisory superintending action of Employer’s executives in- suring employment the continued personnel of efficient and the au- thenticating Employer’s payrolls.
Respondents, Emрloyer Insurer, urge there is reasonable basis finding that Employee was hired as August of date 1st; and but, that the “termination” August “transfer” of date 16th was change in Employee’s duties, an incident the contract of em ployment, and did not create a new contract of employment. Sims Truscon 1216, 126 W. 2d 204. Whether hiring August 16th, was of 1st or there was evidenсe tending to show, stated, that application for employment Kansas; Linch Linch told Employee (in Kansas) he was “hired”; and that thereupon entered‘into the and worked If, Kansas. as there was substantial did ac authority employ and tending show, Linch had evidence Kansas, the contract cept Employee’s application for vice-president in hiring Missouri. 17 was then (and president) C. J. S., Contracts, and there afterward complete, even § *7 - “approved” page though 814; and see contract W. 2d 110. Co., App., Phillips Petroleum Anschutz Co., supra, City Structural Daggett In the case of v. Kansas by employer an authorized by Claimant, Baxter had been cited in offer accepted the Daggett expressly Daggett employment; offer agent negotiation of an a mere The evidence does not show Missouri. that a written negotiation it was reserved party for a first in which by party to the signed, the second contract should be and returned Fuel Co. agent handling,” final were the facts Illinois “for 834, cited 8 S. W. 2d Claimant. Mobile & O. R. quite strongly indicatory an intention to con- are not so facts case of Overcash v. Yellow tract Kansas as were the facts Co., supra, Claimant, Transit wherein the evidence showed cited (when an resident of Missouri the contract of employee, And complеte), became removed his residence to Kansas. see the Co., supra, by Claimant, case of Adams v. Continental Life Ins. cited case, determining in which a “new employ- whether contract” of Missouri, ment had been made in this court considered fact the shown employee, an contract,” after the time of the аsserted “new re- tained Employee’s his residence South Dakota. The facts of resi- may considered, dence and continued residence Missouri be are not, themselves, compel do a finding but such facts parties intended to contract in Missouri. Reexamine Overcash v. Yellow Co., supra; Transit Adams v. Continental Life Ins. supra; and compare Thompson, supra. Deister v. should be affirmed. Bradley Dalton, GC.,
Tt is so ordered. concur. PER foregoing opinion by CURIAM: The VAN Osdol, C., is opinion All adopted judges as the of the court. concur. Todd, Ja., Minor, His Guardian and William David Todd, Lena Curator, Respondent, v. Fleta Leta Bosley, Appel Stokes (2d) lants. No. 40635. 215 W. One,
Division December