147 S.W.2d 616 | Mo. | 1941
Lead Opinion
This is an action to recover "contributions" alleged to be due under the provisions of our Unemployment Compensation Act. [Laws 1937, p. 574 et seq., amended 1939, Laws 1939, p. 892 et seq., Mo. Stat. Ann., sec. 13194, sec. 1 et seq., p. 4770.] Upon a trial before the court, without the aid of a jury, a judgment was entered for the defendant and plaintiffs have appealed.
[1] We have jurisdiction by reason of the fact that appellants are state officers within the meaning of Section 12, Article 6 of the Constitution. [Murphy, Sr., v. Hurlbut Undertaking
Embalming Co.,
It is conceded by respondent's brief that the respondent and one Dee A. Rice, hereinafter mentioned, were, at all times mentioned in the petition, "employing units" within the meaning of paragraph (g) of Section 3, of our Unemployment Compensation Act. [Laws 1937, p. 575, amended Laws 1939, p. 888, Mo. Stat. Ann., sec. 13194, sec. 3 (g), p. 4770.] It is conceded that neither respondent nor Rice was an "employer" within the meaning of subdivision (1), paragraph (h) of Section 3 of the act, because neither, considered alone, had eight or more employees, as provided in the act. [Laws 1937, p. 575, amended Laws 1939, p. 889.]
Appellants contend that the sole question presented is whether or not respondent is an "employer" within the meaning of subdivision 4, paragraph (h) of Section 3, of the act, Laws 1937, p. 576, amended Laws 1939, p. 888, which further defines an "employer" as "Any employing unit which, together with one or more employing units, is owned or controlled by legally enforceable means or otherwise, directly or indirectly, by the same interests, or which owns or controls one or more other employing units by legally enforceable means or otherwise, and which, if treated as a single unit with such other employing units or interests, or both, would be an employer under paragraph (1) of this subsection."
Respondent did not demur to the petition, nor to any count thereof, but answered, denying generally the allegations in the petition. On trial appellants offered evidence in support of the several counts of *376 the petition. Appellants called Dee A. Rice, respondent's president, as their witness. His testimony tended to show that respondent was a Missouri corporation owning and operating a telephone system in Ripley County; that, of the 500 outstanding shares of capital and voting stock of respondent corporation, Dee A. Rice owned 449 shares; that the wife and father of Dee A. Rice owned the remaining 51 shares; that Dee A. Rice was employed by respondent as its president and general manager; that he was actually managing the affairs of the company; that respondent, at all times mentioned in the petition, had seven individuals in its employment; that Dee A. Rice individually owned, operated and managed a telephone system in Wayne County under the trade name of Wayne County Telephone Company; that Dee A. Rice in such capacity employed six persons during the period mentioned in the petition; that respondent, and the wife and father of Dee A. Rice, had no interest in the Wayne County Telephone Company; that the funds of the two companies were kept in separate accounts and the books, business and affairs of each were totally separate and apart from the other; that the Public Service Commission of Missouri would not permit Dee A. Rice to consolidate respondent's business with his own; that neither Dee A. Rice nor the respondent had elected to come under the provisions of the Unemployment Compensation Act; that, except as to Dee A. Rice, the employees of the respective companies were not the same; and that the companies had no connection whatever, except that Dee A. Rice owned stock in respondent, as hereinbefore mentioned, and was the president, a director, and the general manager of respondent and, also, individually owned, managed and operated the Wayne County Telephone Company.
Appellants submitted to witness Rice an exhibit purporting to show the amount of wages paid by respondent to its employees during 1937, the several quarters of 1938, and the first quarter of 1939, being the periods covered by the several counts of the petition. Witness stated: "I have read plaintiff's exhibit `1' over hurriedly and I think the facts stated there are substantially correct, but I can't say that they are unless I would compare them with my records . . . I can't tell you as to whether or not the amounts of the payrolls set out in plaintiff's exhibit 1 are correct or not. . . . I can't say positively that they are correct. . . .
"I was present when field adviser L.F. Monning prepared a report, and I assume that plaintiff's exhibit 2 which purports to be `Employer's Summary Contribution Report for the year 1937' is it. I gave Mr. Monning some figures from the records I have and the figures contained on this report are probably the figures I gave him. . . . I gave him some figures there that he asked for."
Plaintiff's exhibits 2 and 3 were subsequently identified by appellants' witness Meyer as records kept in the ordinary course of *377 business of the Commission. These exhibits were signed by Mr. Monnig, who was not a witness. Witness Meyer stated that they were made up by Mr. Monnig; that he heard Mr. Monnig ask Mr. Rice which employees were at Doniphan and which at Neelyville; that the figures came from the Social Security figures; that the witness did not examine the payroll books. This witness further stated: "I can't say whether the copies of the Social Security Reports from which these figures were taken had his signature on them or not. He gave them to us and told us they were the Social Security returns and represented his payroll." Over respondent's objection these exhibits were admitted in evidence. From the amount of the payrolls as disclosed by the several exhibits, the amounts of the contributions sought to be recovered would have to be determined on a percentage basis as provided by the act.
[2] At the close of the evidence, respondent made no request for declarations of law in the nature of demurrers to the evidence. No requests for findings of fact or declarations of law were made by either party, and none were given. The court did not indicate the ground upon which it found for the defendant on the several counts. Under such circumstances, the judgment would ordinarily have to be affirmed, if it could be sustained on any reasonable theory and if no errors appeared on the face of the record proper. [Stoepler v. Silberberg,
To avoid this result, appellants contend in their statement that "the facts are not in dispute." Appellants' statement reviews the evidence generally, but not the evidence as to the amount of payrolls, and then sets out the amount of the "contributions" claimed in the various counts of the petition. The amounts claimed, being certain percentages (as provided by the act) of the alleged wages paid by respondent to its employees during the respective periods covered by the several counts of the petition. Respondent's statement says: "Respondent adopts the statement of the appellants insofar as it covers this case, except the amounts due from respondent to appellants, if any. The evidence does not show any definite amount due appellants if they are entitled to recover." In its brief and argument respondent does concede other facts and takes the position that it is not an employer within the meaning of the act. Respondent expressly concedes that both respondent and Dee A. Rice were "employing *378 units" as defined in the act. Assuming from these statements that respondent does concede all other evidentiary facts in the record, we are unable to find where respondent has, at any time, conceded that the alleged payroll figures, as presented by appellant, are in fact correct. The proposed stipulation of facts, plaintiff's exhibit 1, containing the alleged payroll figures for the various periods, was not signed by respondent. By cross-examination of appellants' witness Rice, respondent showed that he could not say that the amounts indicated in the exhibit were correct. By cross-examination of appellants' witness Meyer, respondent showed that Meyer had not examined the payroll books. Meyer's testimony amounted only to a statement that witness Rice at some time previous to the trial gave witness and Mr. Monnig the figures contained in exhibits 1, 2 and 3 and told them that the figures were taken from the Social Security returns and represented the payrolls. Although witness Rice, offered by appellants, was respondent's president and although he said, "I think those reports are probably correct" (Italics ours), still respondent was not bound to accept said figures as correct and it has not done so. Respondent was represented by counsel and counsel did not concede that the figures were correct. The matter was in issue under the pleadings and respondent offered no evidence.
Under the circumstances shown by the record, the court was not required to accept these figures as correct and from its finding we must infer that it did not accept them as correct. However, it would not necessarily follow that the judgment should be affirmed in view of the conceded fact that respondent had employees and paid them during the entire period. We think respondent's brief and argument, considered as a whole, concedes that, at all times mentioned in the petition, respondent was an employing unit having seven employees; that Dee A. Rice was an employing unit having six employees; that the employees of both were paid from the funds of their respective employers during said periods; and that all other evidentiary facts testified to are true, except as to the amount of the payrolls and the amount of the tax, if any.
[3] We must consider the effect of these admissions. Where there is no essential conflict in the evidence and the case is virtually one of admitted facts, tantamount to a special verdict, the proper judgment to be rendered is a mere legal conclusion from the facts, and if the decision of the court is wrong, it is error of law, which may be reviewed on appeal. [State ex rel. Wenneker v. Cummings,
Appellants contend that respondent "is controlled by Dee A. Rice and that therefore the defendant (respondent) and Dee A. Rice *379 are employers within the meaning of this provision (subdivision 4, paragraph (h) of Sec. 3) because together they have more than eight employees." Respondent denies that it is such an "employer" and insists that the evidence shows that the businesses are separately managed and controlled.
[4] We think the applicable rule, for a consideration of this record, is stated in Kingman v. Waugh,
In view of the general finding against appellants, and in favor of respondent, we must sustain the judgment of the trial court if it can be done upon any reasonable theory of the law and facts. [Railsback v. Bowers, supra; Stoepler v. Silberberg, supra.] The same is true where there is an agreed statement of certain facts. [Kingman v. Waugh, supra; Rubin v. Bassakin (Mo. App.), 130 S.W.2d 224, 229.] The conceded facts in this case must be viewed in a light most favorable to respondent and inferences favorable to appellants must be rejected in determining whether or not the decision of the trial court should be sustained.
Do the conceded facts in this case compel the conclusion of fact that respondent corporation was "controlled" by Dee A. Rice? Appellants rely on the words of the statute: "Controlled by legally enforceable means or otherwise, directly or indirectly by the same interests." Although the evidence may have been such that an inference of fact could have been drawn to the effect that respondent corporation was controlled by Dee A. Rice the inference was not drawn from the evidence by the trial court, and the evidence, as conceded evidentiary facts, was not such as to compel the conclusion of fact that respondent was so controlled. There was no evidence that Dee A. Rice voted his 449 shares of stock in respondent corporation or that he controlled the corporation's board of directors. The mere fact that he was employed as manager of the corporation, and was its president and was one of its three directors, does not compel the conclusion that he controlled by legally enforceable means or otherwise, directly or indirectly, or that he exercised the power to control that was his by reason of his ownership of a majority of respondent's stock, and such fact was not conceded by the respondent. Proof that *380 the control of the two "employing units" was ultimately vested in the "same interests," and that both could be controlled, did not compel the conclusion that both employing units werecontrolled by the "same interests."
The holders of a majority of the stock of a corporation are, of course, entitled to dictate its policy and conduct its business in their own way so long as they act in good faith and their acts are intra vires but a mere admission that the ownership of a majority of respondent's stock was in Dee A. Rice was not an admission that such individual "controlled" the corporation. Although a corporation may conduct business through its president and other officers, the ultimate source of all authority lies in the Board of Directors who stand in the place of the individual stockholders in the sense of control they exercise over corporate affairs. An admission that Dee A. Rice was president and manager of the corporation was not an admission that he controlled the corporation.
In the case of Grafeman Dairy Co. v. Northwestern Bank,
[5] In addition it might be said that the evidence does not expressly show that Dee A. Rice owned a majority of respondent's stock and was respondent's president, a director and manager at all of the times mentioned in the petition. The witness testified as to these facts as of the date of the trial, and there was evidence from which it might have been inferred that the same conditions existed previous to the date of the trial. The conceded evidentiary facts, however, did not compel that conclusion. In view of the record in this case the finding of the trial court is not open for review.
In the case of Gibson Products Co. v. Murphy (Okla. Sup.),
In the case of Unemployment Compensation Commission v. City Ice Coal Company,
In the case of Maine Unemployment Compensation Commission v. Androscoggin, Jr. (Maine Sup. Judicial Court),
In the case of Independent Gasoline Company v. Bureau of Unemployment Compensation (Ga. Sup.),
In the case before us the constitutionality of the particular provision of the act is not questioned. In view of the conclusions we have reached it is unnecessary to review other authorities.
The judgment is affirmed. Hyde and Bradley, CC., concur.
Addendum
The foregoing opinion by DALTON, C., is adopted as the opinion of the court. All the judges concur.