Opinion
No. 21783.
November 3, 1952.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, PAUL A. BUZARD, J.
Fred B. Whalen, James R. O'Connor, St. Louis, for appellants.
Paul H. Koening, Thomas L. Sullivan, St. Louis, for respondent.
This is a proceeding by William G. Woodward, employee, to collect compensation under the Missouri Workmen's Compensation Act, Section 287.010 et seq. R.S. Mo 1949, V.A.M.S., for an injury against his employer, J. J. Grier Company, and its insurer, London Guarantee and Accident Company, resulting from an accident occurring in the State of Wyoming under date of August 24, 1950. The contract of employment between the employee and employer had been entered into on June 8, 1950, at Kansas City, Missouri; the employee had been immediately thereafter sent to the State of Wyoming where he continued to work for the employer, until the accident occurred.
At the conclusion of the hearing before the Division of Workmen's Compensation the Referee made an award in favor of employee Woodward totaling $1,200. The employer and insurer filed an application for review before the Industrial Commission, which resulted in a final award denying compensation. The employee appealed to the Circuit Court of Jackson County, at Kansas City. That court reversed the final award of the Industrial Commission and the employer and insurer perfected their appeal to this court.
The circuit judge, Honorable Paul A. Buzard, to whom this record was presented filed a memorandum opinion which so clearly expresses our own views of the case that we adopt it. It is as follows:
"There is no dispute but that the contract of hire was made in Kansas City, Missouri; the employer and employee were both working under the Missouri Workmen's Compensation law; that the liability of the employer was insured; that the employee suffered an accident arising out of and in the course of his employment in the state of Wyoming on the 24th day of August, 1950; proper notice was received by the employer; claim for compensation was timely filed. The compensation rate was $25 per week.
"No compensation has been paid and the referee found that the employee suffered 30 per cent permanent loss of the use of the right minor wrist, entitling him to 48 weeks compensation at $25 a week. There is ample evidence in the record to support this finding.
"The only additional finding made by the Referee was as follows: `I find that the contract of employment between the employee and the employer was entered into in the State of Missouri and therefore I have jurisdiction of said parties and cause'.
"It was freely admitted by both sides that the contract of employment was made in Kansas City. The only conflict in the evidence was as to an alleged contract which the employer claims was executed at the time claimant was employed. Claimant denied that he signed this contract. The alleged contract is as follows:
"`Form D
Labor Office, Kansas City, Mo. Date June 8th, 1950.
"`Agreement
"`John J. Grier Company, the employer, and William G. Woodward employee, hereby agree that in the event said employee is injured in Missouri by accident arising out of and in the course of his employment the provisions of the Missouri Workmen's Compensation Act shall apply. If, and in the event the employee shall be injured in any state other than the state of Missouri by accident arising out of and in the course of his employment, the provisions of the Workmen's Compensation Act of the state where the accident occurs shall apply and not the provisions of the Missouri Workmen's Act.
"`It is agreed that the above conditions are made a part of the contract of employment entered into this date between the employer and the employee in Kansas City, Jackson County, Missouri.
"`John J. Grier Company
"`By F. E. Tomplins
"`Employer
"`Employee Wm. G. Woodward'
"An application for review was filed by the employer and insurer. No additional testimony was heard by the Commission and its finding was as follows:
"`We find and believe from all the evidence that William G. Woodward, employee herein, sustained an injury in the state of Wyoming; that the contract of employment between the parties to this cause provided that if, and in the event the employee shall be injured in any state other than in the state of Missouri by accident arising out of and in the course of his employment, the provisions of the Workmen's Compensation Act of the state where the accident occurs shall apply and not the provisions of the Missouri Workmen's Compensation Act. By virtue of the provisions of Section 287.110 [subd.] 2, Revised Statutes of Missouri, 1949, therefore, the commission is without jurisdiction in this cause; and compensation is accordingly denied.
"`Reversing on review award dated March 7, 1951.'
"It can readily be seen that the referee, except for the finding of disability, did not decide anything. He did not decide the one disputed question, to-wit: Did the claimant execute the alleged contract heretofore mentioned?
"The Missouri Revised Statutes, 1949, Section 287.460, describes the duties of the referee: `The division, through a referee, shall hear in a summary proceeding the parties at issue and their representatives and witnesses and shall determine the dispute. All evidence introduced at any such hearings shall be reported by a competent stenographer appointed by the division. The award, together with a statement of the findings of fact, rulings of law and any other matters pertinent to the question at issue, shall be filed with the record of proceedings, and a copy of the award shall immediately be sent by registered United States mail to the parties in dispute and the employer's insurer.'
"The compensation law provides for an orderly course of procedure. It is the duty of the referee to make his findings of fact and conclusions of law. The Commission can then make an intelligent finding, giving deference and consideration to the findings of the referee. Who can say that the trier of fact, the referee who heard the witnesses, believed the alleged contract heretofore mentioned was or was not executed? I can give no opinion on this question and I do not believe that the three members of the Commission had the slightest idea on this subject.
"The referee should make a specific finding as to whether or not the alleged contract was executed by the parties. If he finds it was not executed his findings would necessarily be for the claimant. If he should find that the alleged contract was executed by both parties then he should interpret the contract and decide if, under the contract, the claim is one to be decided by the laws of Missouri or Wyoming. See McClintock v. Skelly Oil Co., 230 Mo.App. 1204, 114 S.W.2d 181.
"I believe it is my plain duty to reverse and remand this cause for a re-hearing, as the Commission acted without, and in excess of its powers. Therefore, the case will be reversed and remanded to the State Industrial Commission with directions to issue an order referring and returning this claim to the referee to make an appropriate findings of facts and conclusions of law."
Employer and insurer in their briefs concede that "the only matter in dispute was whether or not the employee had signed agreement Form D." That question, as the Circuit Court said, the Referee did not determine. Before being required to decide the case the court below was entitled to have "the only matter in dispute" passed on by the Referee, the person who actually saw and heard the witnesses. Then, and only then, could the reviewing court take into account the rule of "due deference" to the finding of the Referee. That rule has recently been discussed by our Supreme Court in two opinions. Michler v. Krey Packing Company, 253 S.W.2d 136, and Frazier et al. v. National Bearing Division, American Brake Shoe Company, 250 S.W.2d 1008. The Michler opinion says that as the law now stands the award of a referee "`Upon an original hearing shall have the same force and effect, * * as provided elsewhere in this chapter for similar awards by the commission or any member thereof.' Section 287.610 RSMo 1949, V.A.M.S."
The judgment of the Circuit Court is affirmed.
All concur.