Blew v. Conner
| Decision Date | 03 February 1958 |
| Docket Number | No. 22688,22688 |
| Citation | 310 S.W.2d 294 |
| Court | Missouri Court of Appeals |
| Parties | Elmo BLEW, Appellant, v. Albert F. CONNER and Mary W. Conner, and Hartford Accident & Indemnity Company, Respondents. |
Hess & Collins, Macon, for appellant.
John S. Marsalek, Moster, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for Hartford Accident and Indemnity Co.
James Glenn, Macon, for respondents.
Elmo Blew, appellant, was awarded $2,575.39 by the referee in a workmen's compensation hearing in which Albert F. Conner and Mary W. Conner, and Hartford Accident & Indemnity Company, respondents herein, were named as employers and insurer respectively. The award was approved by the Industrial Commission. The circuit court reversed the Industrial Commission and found for the named employers and insurer. Hence this appeal.
The facts are relatively uncontroverted. Albert F. Conner and Mary W. Conner own a farm in Macon County, Missouri. In July, 1953, the barn on that farm burned down. They purchased a barn from a neighbor, Bud Reed. They employed some men to dismantle that barn, located about two miles north of their farm, and to move it and reassemble it on their farm. Among these men was appellant, Elmo Blew, who was to do carpentry work in connection with the dismantling and reassembling of the purchased barn. During the reassembling of the barn on the Conners' farm, Blew who had been working with a saw, hammer and such, was pulling a nail out of the end of an oak post with a crowbar, so the end of the post would sit on the sill. The nail suddenly came out of the post and crowbar and flew up into Blew's left eye, putting it out. While hospitalized for treatment his eyeball was surgically removed. It is admitted that Blew was an employee of the Conners and that his injury was an accident arising out of and in the course of his employment by them. It is conceded by respondents that if there is liability the amount awarded is the correct amount. It is agreed by all parties that the Conners had never filed any written acceptance of the Missouri Workmen's Compensation Law. Respondents deny any liability under that law.
Respondents' principal contention is that the Conners did not have the requisite minimum number of employees regularly and concurrently employed to cause them to be deemed to be a major employer within the meaning of the Workmen's Compensation Law, and thus liable under the act in the absence of specific election to come under its terms. They also contend Blew was engaged in farm labor at the time of the accident and, therefore, was not under the compensation law. Respondent Insurance Company denies its policies covered the liability in question. The Conners and Blew join hands against this latter contention. We will go into the facts more fully in connection with our discussion of those contentions.
There are several general rules that apply which we wish to acknowledge. The long-established rule is that the burden of proof is on the party claiming the applicability of the act to bring himself under it. If he bases his cause of action upon the act he must prove that he is within its terms. Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 499.
Our state constitution requires the findings of the Industrial Commission to be supported by 'competent and substantial evidence upon the whole record.' V.A.M.S.Const., Article V, Sec. 22. On review of questions of fact decided by the Industrial Commission, our inquiry, as is that of the circuit court, is limited to whether or not the findings of the Commission are supported by competent and substantial evidence upon the whole record. As stated by our Supreme Court, en Banc, in Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626, loc. cit. 628: 'This 'does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.''
As to construing the provisions of the act itself the required approach was stated in Dost v. Pevely Dairy Co., Mo.Sup., 273 S.W.2d 242, 244, by Judge Hyde, who speaking for the Supreme Court, said:
The Industrial Commission found that the Conners were major employers, and that they had more than ten employees in the State of Illinois and more than one employee in Missouri. We proceed to examine the record to ascertain if it contains competent and substantial evidence that the Conners were major employers on the day of the accident or on some day prior thereto, for, if they once reached the status of a major employer their election or presumed election under the act to accept its provisions continues in the absence of written rejection, even though the number of employees may change intermittently. Barlow v. Shawnee Inv. Co., 229 Mo.App. 51, 48 S.W.2d 35; Smith v. Grace, 237 Mo.App. 91, 97, 159 S.W.2d 383, 386. It is settled that the required minimum number, 'more than ten' means that the given number were all working at a particular time, and not merely that more than ten were working at different times and not concurrently. Smith v. Grace, supra.
According to the record, Mr. and Mrs. Conner jointly owned the Missouri farm where the accident occurred and they were the joint employers of those who worked there. The record also contains competent and substantial evidence to the effect that the two of them also owned and operated a tavern business in Peoria, Illinois, and that Mr. Conner was a partner with two other men in an electrical business in Illinois. With regard to the Missouri farm, the uncontroverted testimony of Mr. Conner disclosed that the Conners employed a farm manager, Mr. Clavin, and also, 'five or six' men who were engaged in the barn moving operation. It also disclosed that there were five men ('four bartenders and a porter') regularly employed at the tavern in Peoria, Illinois. Considering that this testimony came from Mr. Conner, who was contending that he did not employ more than ten regular employees within the meaning of the Missouri Compensation Law, and the other circumstances surrounding this testimony, we hold that this testimony is sufficient to be the basis of a finding that six and not five were employed by the Conners in the barn moving operation and that they also employed five at their tavern, making a total of eleven employees, the minimum number required by the act to constitute the Conners major employers, if all the other applicable requirements of the act were met.
Respondents strongly urge that certain other requirements of the act have not been met. They say there is no evidence to support a finding by the Commission that these employees were concurrently employed on or before the day of the accident.
Turning again to the record, we note the following uncontroverted and pertinent testimony of Mr. Conner:
Mr. Conner then testified that he was interested as a partner in an additional and separate business in Illinois, an electric shop located in Peoria. He was asked,
With reference to the number of employees he had in Missouri, he testified that he had one regular employee, Mr. Clavin, who ran the farm for him, including August, 1953. He was asked,
* * *
We think this evidence is sufficient to support a finding by the Commission that these employees were concurrently employed by the Conners on August 5, 1953, when the accident occurred.
Respondents next say that claimant Blew and the others who worked on the barn moving project were engaged in farm labor at the time of the accident and thus claimant was not within the coverage provided by the act. Section 287.090(2) exempts 'Employments of farm labor and domestic servants including family chauffeurs'. (Italics ours.) If, as respondents contend, claimant was engaged in an employment of...
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