Burgstrand v. Crowe Coal Co.

• Decision Date: 01 December 1934
• Citation: 77 S.W.2d 97,336 Mo. 119
• Parties: Martin Burgstrand v. Crowe Coal Company, Employer, Consolidated Underwriters, Insurer, Appellants
• Court: Missouri Supreme Court

77 S.W.2d 97

336 Mo. 119

Martin Burgstrand v. Crowe Coal Company, Employer, Consolidated Underwriters, Insurer, Appellants

Supreme Court of Missouri

December 1, 1934

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 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 Lbr. 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; Burgstrand v. Crowe Coal Co., 62 S.W.2d 406. (2) 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. (3) The employer was engaged in mining coal and operated for only a part of the whole number of working days in each year and there was substantial evidence to support the finding of the Compensation Commission in adopting 225 as the number of working days as a basis for computing the annual earnings. Burgstrand v Crowe Coal Co., 62 S.W.2d 406; Sec. 3320 (e), R. S. 1929; Johnson v. Kruckemeyer, 29 S.W.2d 730; Travelers Ins. Co. v. Davis, 42 S.W.2d 945; Allison v. Eyermann Const. Co., 43 S.W.2d 1063. (4) The employee had suffered a previous injury on January 2, 1929, and as a result of said accident he became industrially blind in his right eye for which compensation had been paid and said blindness existed at the time of this second accident. The resulting condition was permanent total disability and was due to a combination of the injury existing as a result of the accident of January 2, 1929, and the injury of January 23, 1930. 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. Secs. 3316, 3317 (a), R. S. 1929; Goebel v. Mo. Candy Co., 50 S.W.2d 741; Burgstrand v. Crowe Coal Co., 62 S.W.2d 406. (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. Travelers 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. Comm., 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. Kreis & Sons, 49 S.W.2d 220.

A. H. Carl for appellee.

(1) The appellants contend in Point 1 of its brief page 13 that 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 and cite the following cases, to-wit: Hammack v. West Plains Lbr. 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; Burgstrand v. Crowe Coal Co., 62 S.W.2d 406. With the above cases cited by the appellants, in this contention respondent is in complete accord, but it is our sincere contention that the judge of the Circuit Court of Barton County, Missouri, had a right under Section 3342, Revised Statutes 1929, to set aside the award and findings made by the Compensation Commission in this case. Adams v. Lilbourin Grain Co., 48 S.W.2d 147. This opinion was rendered by Justice Cox. The court said in its opinion: "This finding is not supported by sufficient, competent evidence, but is incomprehensible on that theory consistent with a proper regard for their duty to determine issues according to law and evidence; and we are firmly convinced that the trial court was right in setting the finding aside and remanding the case to the commission for further proceedings." Kensen v. Ely v. Walker D. G. 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. (2) The appellants have contended in Point 2 of its Authorities page 13 of its brief, that 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. In this contention we agree with appellants that the above statement is true and correct and the cases cited under Point 2 of appellants' brief herein upholds that theory, but, on the other hand, it is our sincere contention, when the evidence does not support the findings of the Workmen's Compensation Commission and on review the appellate court has the right to set aside the findings of the Workmen's Compensation Commission and is so held and set out under Section 3342, General Statutes of Missouri, 1929, and upheld by Adams v. Lilbourin Grain Co., 48 S.W.2d 147; Kenser v. Ely & Walker D. G. Co., 48 S.W.2d 167; Elsas v. Montgomery Elevator Co., 50 S.W.2d 130.

Cooley, C. Westhues, C., concurs; Bohling, C., not sitting.

OPINION

COOLEY

This is the second appeal in this case. Our opinion on the first appeal is reported in Burgstrand v. Crowe Coal Co., 333 Mo. 43, 62 S.W.2d 406. The controversy originated before the Workmen's Compensation Commission. On the first appeal, we remanded the cause for further proceedings before the commission. Pursuant to our mandate the commission held another hearing, which we shall refer to as the second hearing, at which the record of its first hearing, including the evidence then taken, was introduced, together with some additional evidence and again made an award in favor of the plaintiff, respondent here, from which he appealed to the circuit court. That court set aside the findings and award of the commission and itself made a detailed finding of facts, set out the amounts that it determined should be awarded to the plaintiff and remanded the cause to the commission with directions to that body to award plaintiff compensation in accordance with the circuit court's findings. The employer and the insurer appealed.

The commission awarded plaintiff compensation at the rate of $ 10.18 per week for three hundred weeks and thereafter for life at $ 6 per week. Plaintiff's age was shown. Using the mortality tables provided by statute as a basis for computing the amount of the award after the expiration of the three hundred weeks the total award of the commission aggregated $ 6,430.78, from which was to be deducted $ 1,350 already paid. The amounts which the circuit court found and directed the commission to award aggregated $ 13,956, less the $ 1,350 already paid, leaving a balance of $ 12,606, which the court directed the commission to award. The difference between the amount awarded by the commission and the amount of the circuit court's judgment, from which this appeal was taken, was thus $ 7525.22, giving this court appellate jurisdiction. [See Burgstrand v. Crowe Coal Co., supra.]

Appellant Crowe Coal Company operated a strip coal mine in Barton County where respondent was employed as a shot firer. Appellant Consolidated Underwriters was the employer's insurer. It is conceded that respondent's injuries were due to an accident arising out of and in the course of his employment and that he is now totally and permanently disabled. The only controversy before the commission was as to the weekly allowance to be made.

Respondent had suffered an injury to his right eye, with some other minor injuries, from a premature explosion of powder on January 2, 1929, while working for the same employer. Following that accident there was a hearing before the commission and evidence was taken, a transcript of which was introduced herein. After said hearing that claim was settled and appellants paid respondent $ 1567.28 in full discharge thereof. In September, 1929, respondent returned to work and again, on January 23, 1930, a premature explosion occurred which destroyed the vision of his left eye, and whatever vision he had left in the right eye after the first accident. The claim for compensation in this case grows out of the last injury.

The commission determined plaintiff's earnings by taking 225 as the number of days in the year he worked, at $ 5.30 per day. The daily wage is not in dispute. Plaintiff insists there was no substantial evidence to justify the commission's finding of 225 working days as the basis for computing his earnings and the weekly compensation to be awarded. There was evidence that the mine did not operate at all times throughout the year. We held on the former appeal that there was substantial evidence to support the commission's finding on this issue. The same evidence was before the commission on the second hearing. Indeed, it was agreed at the beginning of said second hearing "that the original award of the commission as to all matters except the application of the two-thirds compensation under Section 3317 stands, and that . . . this hearing shall go into the proposition...