Biswell v. St. Louis-San Francisco Ry. Co.

• Decision Date: 03 May 1932
• Docket Number: No. 22196.,22196.
• Parties: BISWELL et al. v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

49 S.W.2d 203

BISWELL et al. v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 22196.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Rehearing Denied May 18, 1932.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Proceeding under Workmen's Compensation Act by Bessie V. Biswell and others, dependents of Oscar R. Biswell, deceased, employee, opposed by St. Louis-San Francisco Railway Company, employer. From a judgment of the circuit court affirming an award of the commission, the employer appeals.

Reversed and remanded, with directions.

E. T. Miller, A. P. Stewart, and C. H. Skinker, Jr., all of St. Louis, for appellant.

Barth C. Slattery and Case, Voyles & Stemmler, all of St. Louis, for respondents.

HAID, P. J.

This is an appeal from a judgment of the circuit court affirming the award of the commission in favor of the claimant.

The only question raised by the employer is the method adopted by the commission in arriving at the amount of the compensation to be paid the widow of the deceased employee and the amount awarded to her.

It appears that for a number of years prior to September 19, 1930, Oscar R. Biswell was employed by the St. Louis-San Francisco Railway Company as a car inspector, with a classification of first-class carpenter, until on or about May 15, 1930, when he was laid off on account of a reduction in the force; on September 15, 1930, he again entered the employ of the employer as a car wrecker to dismantle cars; that he worked for four hours on that day and worked the full time of eight hours on the following days up to the date of the accident which caused his death one hour after he was injured; that the work of dismantling cars was carried on during a few months each year.

The findings of fact of the referee, which were adopted by the commission, were to the effect that the employee was not in the employ of the railroad for one year next preceding the date of his death; that the average earnings of a car wrecker, such as deceased was, at the time of his death, was $.82 per hour and the regular day's work consisted of eight hours per day, or an average daily wage of $6.56.

There is then a finding that "the respondents operated their business throughout the entire year, so that, in the absence of yearly earnings of deceased upon which compensation can be based the earnings `shall be regarded as 300 times the average daily earnings in such computation' (Section 3320 (d) R. S. Mo. 1929)."

Considering the evidence in the record in the light most favorable to sustain the finding, as we must [Jackson v. General Metals Ref. Co. (Mo. App.) 43 S.W.(2d) 865, 866 and cases cited], and considering that only which is most favorable to support the award, with all reasonable inferences to be drawn therefrom [Schulte v. Tea & Coffee Co. (Mo. App.) 43 S.W.(2d) 832; Jones v. Century Coal Co. (Mo. App.) 46 S.W.(2d) 196], and considering the further rule that, if the facts are in dispute, the finding of the commission is conclusive upon us, if there is substantial evidence to support it [Lamkins v. Copper-Clad M. Range Corp. (Mo. App.) 42 S.W.(2d) 941; Jackson v. General Metals Ref. Co. (Mo. App.) 43 S.W.(2d) 865, 866, and cases cited], we are bound by the findings that the employee was not in the employ of the railroad for one year next preceding the date of his death, that the average earnings of employees in his position was $.82 per hour, and the regular day's work consisted of eight hours per day or an average daily wage of $6.56.

This leaves for consideration only the question whether the computation is to be based upon the provisions of section 3320 (d) of our Compensation Act. That section reads as follows: "(d) As to employees in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable shall be regarded as 300 times the average daily earnings in such computation."

The finding of the commission, as it recites, is based upon the theory that, because the railway operated its business throughout the entire year, therefore, under subdivision (d), the provisions of that subdivision should be used in making the computation.

When this subdivision is read in connection with subdivisions (a), (b), (c), and (e), there can be no doubt that the action of the commission in this respect was erroneous.

Subdivision (a) of the act provides that the compensation shall be computed upon the annual earnings of the injured person received by him if in the employment of the same employer continuously during the year next...