*1 George Doing Business as St. Formerly Waring, J. County, Missouri, Appellant, Lines, Carl Bus Harry Drisler, Mem Keitel, Sr., and P. Elmer Henry, John Compensation Unemployment bers of Mis (2d) 470. 39737 . 203 S. souri . No. April 21, Two, Division 1947. July 14, Overruled, Rehearing to Bane Transfer

Motion appellant. Edwin A. Smith for *2 F. Counsel, Moseley, Assistant Carroll, J. Chief Charles

Michael respondents. for Counsel,

751 theory George Waring, BARRETT, C. Upon the that employer an Lines, was County Bus doing as the St. business A., 9423(h) R. Sec. meaning Mo. S. within the the affiliate clause assessed (4) Law Unemployment Compensation him for against contributions interest that found of Cole inclusive. review the Court On Circuit by competent and supported final decision of Commission was appeal Upon this award. substantial evidence and affirmed the com is whether there is question determination sole find the Commission’s petent support substantial evidence 9432B(c); Kellogg Murphy, ing A., of fact. Mo. R. S. See. Wagner Corp., Electric Mo. 164 W. Wood Mo. S. W. January George Waring has been

Admittedly, sub since an ject and, accordingly, paying contributions as act employer position the act. But it is the Commission *3 through owned, because he also the act from 1937 he was under County and, Bus Line at the operated and controlled St. Louis the of the Suburban Bus time, majority the stockholder Service same was being managed by and the Company, businesses controlled the two Waring sons, and his Frank and Lee. In persons, George three same considering therefore, we ourselves to instance case, confine the units, corporation, majority which a the one of -is of two business of the In the sole owner other business. so stockholder of which truly the from consideration instances which doing we eliminate our (Arado of act v. Keitel, (Mo.), under clause the the successor come Mining Unemployment Comp. (2d)W. Bucklin Coal Co. 313, (2d) 463) Com., 201 W. rather than No. compare affiliate clause. and the those which come See 142 A. R. 918 and 158 A. L. R. collection of L. cases witnesses, George appellant, examined but two The Commission Waring, adviser, twenty years field Glenn S. Barrow. For and its employed Waring a retail hardware store. lie testified Mr. was owner, operator manager and of the that he was the sole St. Louis County sons, Lee, Frank and Line and his had Bus no interest enterprise. During in that whatever and two, three, line consisted of -sometimes busses. That that bus running single from Cherokee over line is a route to Gravois bus equipment County of the and Affton.. The St. Hampton Louis private garages, maintained in kept and Bus Line is most of Hill garage at Gravois and Rock Road. Originally, in a time one bus, purchased a school one was Chicago had been the busses Company from Service Bus and, Suburban purchased was at the one been leased hearing, one bus had on month to month basis time Company. AVaring Bus Mr. Service from Suburban testified that City St. operated permit Bus Line under a * St. Louis. fifty corporation The Suburban with Company Service Bus is a twenty-one capital Waring shares of Originally, stock. Mr. owned shares of shares sons, Lee, the stock and his Frank and. owned two each, twenty-two a Mr. and Mrs. while Carrón owned of stock shares Carrón- an- daughter owned two shares with and one with one share daughter. In trans- 1935 Mr. died and his stock was Carrón bought ferred 15th, Waring to wife. On 1937 Mr. June twenty-five Mr. daughters. shares of stock from Mrs. and her Carrón Waring’s sons, Lee, company Frank and working had'been for the and on December gave he each of them seven additional company. January shares of stock in the Lee 9th, gave On 1940 he an February additional Waring seven shares and in 1940 Mr. di- vided the stock eighteen so that he owned shares and each son owned sixteen shares. Throughout Waring Mr. the time and his sons have been the corporation. Waring alVays directors of the president secretary-treasurer vice-president. the sons At the hearing time forty years Frank age and Lee was in his thirties.

The Suburban Company operates twenty-two Service Bus twenty- three regular irregular busses over both permits routes under from the Missouri Public regular Service Commission. The route Broadway is from N. to Prospect Riverview Drive Hill, to Riverview Gardens and return. Another route is over Broadway Spanish Lake 'and the Training School. In addition the company has a contract with City of St. Louis to transport water- employees works Chain of Rocks. part For a of the time the *4 company transported workers to Curtis-Wright plant.

The office of Suburban Company'is Service Bus at 9300 Bellefon- Road, taine sixteen miles from the County where St. Louis garage kept. Waring busses are Mr. testified son, Lee, that his did the office and company book work for the while Frank managed garage repair work. He testified that he part took'no in manage- operation, ment company. of that He said that company was managed sons, and controlled his two Frank and Lee. When asked president what his functions as company of the were he “Very said: little—-I function. I up don’t don’t function there —I don’t have anything do with it.” to He said: “I established this for the chil- ’’ dren. separate just live in sons houses west of the garage on Belle- Waring fontaine. Mr. lives with Frank and uses the basement of home as an from Frank’s office which he conducts the affairs of St. County Bus Lines. He Louis testified that kept he separate books account separate company. and a bank for his When asked whether accounts of two businesses bank were kept in the same bank, they both in the same bank are he “I am not sure now whether said: whether I don’t know together but I them put or not know we in a confusion they separated not—we had little have been since or don’t know but I another bank one bank so we moved one account to it.” He they any attention to doing' that don’t how are now—I pay any Service Bus Com- pay that he did not attention Suburban said pany all. at occasionally signed say in his he

He did that the absence of sons his Company for and that in absence checks Suburban Service Bus Though authority County sign sons had St. Louis Bus Line checks. entirely it in base- is not clear whether Suburban’s office is also .Bellefontaine, Mr. garage ment of home at 9300 Frank’s say companies did Waring kept' that books. of both were says County’s try to kept the same safe. He he Louis books: “I St. myself keep we up them all until the final records are written usually get up someone to write them but I do all of the detailed work.” He at typewriter up said that had a Suburban house companies it, but girl that both did not use a did Suburban’s steno- graphic possibly, may thought, work. He that have written an she County. for tax occasional letter St. Louis Lee’s wife filled out the reports being Unemployment Compensation'Commis- now sent to the sion. The couple Commission’s field adviser testified that for a hours July 19th, along County’s on he made obeservatious garage route and at Schubert’s on Gravois. He saw at least one bus on the route lettered “Suburban Service Bus Company” which sign a carried “Affton.” He also saw bus lettered “Suburban” parked garage Waring testified, however, on the lot. that he had purchased from he one bus Suburban and that leased another from any appear Suburban. It does not whether of these latter matters transpired through or were true from 1937 1941. As to whether St. used only Suburban’s busses Mr. said: “I know one the last time two when we borrowed a bus ’’ they explanation only them. His was that did emergency. in an something “Not unless is broken might down—sometimes we have we, helped one another the same as any out would do with . . . all company. companies. We do that for pickWe up Curtis-Wright trips the Bast St. Louis lines on our out do that —we help with companies all them out.” —we is, Unsatisfactory competent as record there is and substantial in support finding. Commission’s Apparently avail- testimony able, enlightening was not used. Certainly the status *5 they the accounts and how were bank handled could have been es- degree certainty. of tablished with some Some light further could upon nature have been shed the of the two businesses, the possibility being plausibility of their combined and how they were in fact definitely It and controlled. could have conducted established Public Service the of jurisdiction' they both under the whether are Co., Tel. Murphy Doniphan v. testimony must say what court (2d) 616, 618. It is for this not complete more that a merely point out be and we or should used way doubt, one case free certainly .hearing would have left record, case the present the upon fact, As a matter of or another. v. Comp. Bd. Warrior Unemployment closely analogous is to State Unemploy Maryland 221 Ind. 46 N. E. Co., Petroleum v. State (2d) 666 and Atl. Albrecht, Comp. B. v. (Md.), ment in the (2d) 46, compelling P. Exchange (Okla.), 135 Tulsa Flower supra. Co., Doniphan Telephone Murphy drawn in ferences the Com- support of Nevertheless, evidence there is substantial one justly become meaning what has finding the within of mission’s supra. Kellogg Murphy, States, the'leading cases in the United of same at the in fact conducted were In case the two businesses clear was also major ownership and there address under common .majority stock- by the of the two businesses evidence of actual control business. the of the other was also owner of one business who holder unification.” “actual there clearer evidence of that case In separate busi- “of major ownership control holds that case two unit some- by employing same (corporate otherwise) the nesses not of unified to make an inference times would be sufficient control wholly arbitrary.” it would But, “Sometimes be unreasonable or and nature proven history, location insufficient, depending' on the clause subsection . . .We hold the of the two businesses. affiliate by location, which refer businesses (h) 4 be construed to should unreasonably expected be experience might not nature or common statute; unification in the absence of such operate substantial unification."1 is of actual where there to those ‘ ‘ ultimate Finally fundamentally, There can be no doubt that the but two (h)l, 4, is of under subsection criterion substantial unification by jómt (349 l. actual Mo. c. businesses control.” or more 292, 294, 295). l. ulti- c. The latter is the 164 S. W. Upon test actual test. this record the control mate, conclusive majority inference but has foundation the own- a rather tenuous businesses, family nature of the relation- ership, similar two history businesses, authority both parties, ship of the businesses, checks for both use Waring to write of the safe r,e- County’s and the manner which St. Louis businesses for both only forty-nine unemployment Missouri’s contains the 1 Of statutes^ purposes ownership by of this definition clause “and same voting majority employing person shall, shares of stock of an unit things, prima among constitute facie evidence of control A., 9423(h) legally the Mo. means.” Sec. 4. In two enforceable K. states and place affiliate clauses have no in the District of Columbia acts. North .unique provision. Twenty plain a rather statutes contain Dakota affiliate Twenty-four employ states do not the affiliate clauses. clause at all.

755 supra; Kellogg Murphy, v. ports kept. were made and books its (2d) 891; Kris Keitel, Hotel W. 1041, Trianon v. 350 Mo. S. Co. 169 (2d)W. 18, 171 S. Unemployment Comp. Com., man v. 351 Mo. 144, (2d)W. v. 575; Keitel, Peerless 355 Mo. Fixture Co. 449; Wagner Corp., supra. v. The Commission Wood Electric (Atkisson Murphy, v. accept explanations not bound rejection not (2d) 27, 30) though 179 S. W. even their does contrary. necessarily There support inference to the positive some in the test of evasion or circumvention but'that is not is no evidence (Iron Comp. Com., jurisdiction Corp. Michigan v. this Street U. might 874) though Mich. N. W. even evasion l. c. 1237. R., indicate control or unification. 158 A. L. appellant judgment affirming

The also contends that the deprives property process him award of his without due of law with meaning and 14th in the of the 5th amendments of the Constitution of the United States and Section Article I the Constitution in point judgment He not out how Missouri. does or wherein the rights (Krisman fringes Unemployment Comp. constitutional 580) event, but, 351 Mo. l. c. S. W. l. c. Com., any definitely it decided that the affiliate clause has been of the Unem Compensation is ployment Act not unconstitutional respect, Kellogg the circumstances of this case. v. Murphy, supra; at least Michigan Unemployment Comp. Com., Godsol Mich. (2d) 519, 142 L. R. N. A. annotation 158 A. L. R. 1237-1240. affirmed. judgment GG., is therefore and Bohling, W^esthues concur. foregoing opinion PER CURIAM:—The Barrett, C., adopted All opinion judges as the court. concur. Evelyn Guardian of Koslow v. Laura Taylor, Koslow,

Sam Mind, Appellant Person of Unsound 40204 . 203 W. . No. (2d) 433. Two, July 14, Division