Burgstrand v. Crowe Coal Co.

• Decision Date: 24 June 1933
• Docket Number: No. 32304.,32304.
• Citation: 62 S.W.2d 406
• Parties: MARTIN BURGSTRAND v. CROWE COAL COMPANY, Employer, CONSOLIDATED UNDERWRITERS, Its Insurer, Appellants.
• Court: Missouri Supreme Court

62 S.W.2d 406

MARTIN BURGSTRAND v. CROWE COAL COMPANY, Employer, CONSOLIDATED UNDERWRITERS, Its Insurer, Appellants.

No. 32304.

Supreme Court of Missouri, Division Two.

June 24, 1933.^*

Appeal from Barton Circuit Court. — Hon. C.A. Hendricks, Judge.

REVERSED AND REMANDED (with directions).

Cornelius Murphy, Jr., and Silvers & Sheppard for appellants.

(1) The commission found that accident resulted in total loss of vision. Permanent total disability was therefore conclusively presumed. The basis for payment of compensation for permanent total disability is 66-2/3 per cent of the average annual earnings during 300 weeks and thereafter on the basis of twenty-five per cent of the average annual earnings, for life, but not less than six nor more than twenty dollars a week. Sec. 3316. R.S. 1929. (2) The employee had suffered a previous disability to his right eye for which compensation had been paid. The resulting condition of this injury is permanent total disability. Compensation is therefore 2/3 of that for permanent total disability in other cases and the average annual earnings at the time of the last injury is used as a basis for computing compensation. Sec. 3317 (a), R.S. 1929; Goebel v. Mo. Candy Co., 50 S.W. (2d) 741. (3) The claimant had not been engaged in the employment of the Crowe Coal Company for the full year immediately preceding the accident and his compensation should be computed according to the annual earnings which persons of the same class in the same employment and same location have earned during such period. Sec. 3320 (c), R.S. 1929; Lampkins v. Malleable Range Corp., 42 S.W. (2d) 941; Johnson v. Kruckemeyer, 29 S.W. (2d) 730; Casebolt v. International Life Ins. Co., 42 S.W. (2d) 939. (4) The employer only operated his mine, at which claimant was employed, for a part of the whole number of working days in each year and the annual earnings should be determined under subsection (e) of Section 3320, R.S. 1929. Travelers Ins. Co. v. Davis, 42 S.W. (2d) 945. (5) The finding that the average weekly wage of the employee was $22.93 was a finding of fact by the commission and is conclusive and binding on courts of review Travellers Ins. Co. v. Davis, 42 S.W. (2d) 945; Harbour v. Gardner, 38 S.W. (2d) 295; Wadley v. Employers' Liability Assur. Corp., 37 S.W. (2d) 665; 28 R.C.L. 821; L.R.A. 1916A, 149. (6) The findings of fact and award of the commission have the force and effect of the verdict of a jury. State ex rel. Bremen-Clark Syrup Co. v. Workmen's Comp. Com., 8 S.W. (2d) 899; Kinder v. Hannibal Car Wheel & Foundry Co., 18 S.W. (2d) 91; Hager v. Pulitzer Pub. Co., 17 S.W. (2d) 578; Cotter v. Valentine Coal Co., 14 S.W. (2d) 660; DeMay v. Liberty Foundry Co., 37 S.W. (2d) 640; Lekmitas v. R.C. Const. Co., 46 S.W. (2d) 963; Perry v. J.A. Kreis & Sons, 49 S.W. (2d) 220. (7) The circuit court had no authority on appeal from the Workmen's Compensation Commission to try the case de novo and pass judgment on the weight of the evidence. Hamnack v. West Plains Lumber Co., 30 S.W. (2d) 650; Jackson v. General Metals Roofing Co., 43 S.W. (2d) 865; Jones v. Century Coal Co., 46 S.W. (2d) 196. (8) There was substantial evidence to support each finding of the Workmen's Compensation Commission and on review the appellate court must look to the evidence most favorable to support the finding of the commission. Brewer v. Ash Grove Lime & Cement Co., 25 S.W. (2d) 1086; Goebel v. Mo. Candy Co., 50 S.W. (2d) 741; Leilich v. Chevrolet Motor Co., 40 S.W. (2d) 601; Jones v. Century Coal Co., 46 S.W. (2d) 196; Schulte v. Grand Union Tea & Coffee Co., 43 S.W. (2d) 832.

A.H. Carl for respondent.

It is our contention that Section 3317 (a), R.S. 1929, and also the case cited does not apply in this case for the reason that in the case of Goebel v. Mo. Candy Co., 50 S.W. (2d) 741, cited by appellants, in this case it is said: "Master and Servant — Finding employee losing left hand after previous loss of use of right hand was totally and permanently disabled. Held supported." R.S. 1929, secs. 3317, 3316 (b). The case at bar is not in anywise similar to the case cited by appellants for the reason in the case of Goebel v. Mo. Candy Co., 50 S.W. (2d) 741, the respondent had previously lost use of right hand, while in the case at bar the undisputed testimony shows as follows: The courts of this State hold where the record is undisputed, that the commission commits error in ignoring such undisputed testimony. The industrial commission cannot disregard unimpeached testimony of credible witnesses. State ex rel. Bittinger v. Hand, 51 S.W. (2d) 1008; Adams v. Lilbourn Grain Co., 48 S.W. (2d) 147; Kenser v. Ely & Walker Dry Goods Co., 48 S.W. (2d) 167. "Circuit Court may reverse compensation award for insufficiency of evidence." R.S. 1929, sec. 3342. Elsas v. Montgomery Elevator Co., 50 S.W. (2d) 130. "Terms of Compensation Act should be liberally construed to effectuate its purpose." R.S. 1929. sec. 3374.

WESTHUES, C.

This is an appeal from a judgment of the Circuit Court of Barton County, Missouri, setting aside an award of the Workmen's Compensation Commission in favor of respondent and entering a new judgment for respondent and against appellants, Crowe Coal Company and Consolidated Underwriters, its insurer.

The Compensation Commission made an award allowing compensation for three hundred weeks, at $10.18 per week and thereafter $6 per week during the life of respondent. A credit was allowed of $1350, which had been paid by appellant Crowe Coal Company. Respondent lost the sight of both eyes through an accident arising out of and in the course of his employment. It was, therefore, a case of permanent total disability.

By the judgment of the circuit court, respondent was allowed $25.71 per week for three hundred weeks and thereafter $9.64 per week for life. In this judgment the $1350, admitted by respondent to have been paid, was not allowed as a credit. Respondent was forty-three years of age at the date of the accident. At the expiration of the weekly payments. October, 1935, respondent will be forty-nine years of age.

[1] The question of our jurisdiction must be determined. Both appellants and respondent appealed to the circuit court from award made by the Compensation Commission. Appellants in their brief in this court ask that the judgment of the circuit court be reversed and the circuit court instructed to affirm the award of the Compensation Commission. The amount in dispute is, therefore, the difference between the award of the commission and the judgment of the circuit court. The question is, what is that difference? We find in appellants' reply brief the following computation of the amount in dispute, based on the age of respondent, the mortality tables as provided for in Chapter 23, Revised Statutes 1929, and the weekly allowances made by the award of the commission and the judgment of the circuit court:

                    "Award by Workmen's Compensation Commission
                300 weeks @ $10.18 per week.........  $  3054.00
                $6.00 per week thereafter for life
                  $6.00 × 52 = $312.00 × 10.823.....     3376.78
                                                      __________
                  "Total award by Commission........  $  6430.78
                Less amount paid thereon by Employer
                  and Insurer.......................  $  1350.00
                                                      __________
                  "Total Balance due................  $  5080.78
                         "Judgment by Circuit Court
                300 weeks @ $25.71 per week.........  $  7713.00
                $9.64 per week thereafter for life
                  $9.64 × 52 = $501.28 × 10.823.....     5425.35
                                                      __________
                  Total of Circuit Court Judgment     $13,138.35
                

"No credit was allowed by the Circuit Court for the $1,350.00 already paid by the employer and insurer.

"The difference in dispute is the difference between the Circuit Court judgment and the award of the Commission or $8,057.57."

[2] The mortality tables have been recognized by our courts as a proper basis for awarding damages in the cases of death resulting from personal injuries sustained through negligence. [O'Donnell v. B. & O. Ry. Co., 324 Mo. 1097, 26 S.W. (2d) l.c. 936 (22); Gill v. B. & O. Ry. Co., 259 S.W. l.c. 97 (8-10), 302 Mo. 317; Hohlstein v. St. Louis Roofing Co., 328 Mo. 899, 42 S.W. (2d) l.c. 575, 576 (2-5).] In the last case cited, a compensation case wherein compensation had been awarded in the form of weekly payments during the life of the injured party, this court denied jurisdiction of the appeal. The record in that case did not disclose the age of the injured party. Therefore, this court was without data to determine the amount in dispute. The same was true in Casebolt v. International Life Insurance Co. et. al., 38 S.W. (2d) 1044. The opinion in the latter case disposed of the jurisdictional question in the following language:

"It thus appears that the amount in dispute in this controversy is the difference between $17.60 per week and $15.40 per week for 300 weeks ($660) and the difference between $6.60 per week and $3.85 per week for life. The record nowhere discloses any data for determining the present value of a sum payable weekly during the remainder of respondent's life. As a prerequisite to the exercise of appellate jurisdiction by this court, the facts conferring the jurisdiction must affirmatively appear of record at the time the appeal is allowed by the circuit court. [Stuart v. Stuart, 320 Mo. 486, 8 S.W. (2d) 613.]"

The record in the case now before us contains the data for determining the present value of the sum payable weekly during the remainder of respondent's life. The difference in the award of the commission and the judgment of the circuit court appealed from can, therefore, be ascertained from the record. The amount in dispute, as determined from the record, is in excess of $7500. Therefore, this court has jurisdiction of the appeal. [State ex rel. v. Lewis, 96 Mo. 146, l.c. 148, 8 S.W. 770; Sleyster v. Eugene Donzelot & Son, 323 Mo. 822...