Caldwell v. J. A. Kreis & Sons

• Decision Date: 05 June 1934
• Docket Number: No. 23102.,23102.
• Court: Missouri Court of Appeals
• Parties: CALDWELL v. J. A. KREIS & SONS et al.

72 S.W.2d 201

CALDWELL v. J. A. KREIS & SONS et al.

No. 23102.

St. Louis Court of Appeals. Missouri.

June 5, 1934.

Rehearing Denied June 19, 1934.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Mattie Lee Brown Caldwell, for the death of Clyde Caldwell, her alleged husband, opposed by J. A. Kreis & Sons, employer, and Hartford Accident & Indemnity Company, insurer. From an adverse decision of the Commission, affirmed by the Circuit Court, claimant appeals.

Affirmed.

Fisher & Aronoff and Robert L. Aronson, all of St. Louis, for appellant.

Lashly, Lashly & Miller, of St. Louis, for respondents.

BENNICK, Commissioner.

This is a proceeding under the Workmen's Compensation Act (sections 3299-3376, R. S. 1929, Mo. St. Ann. §§ 3299-3376, pp. 8229-8294). The appeal to be considered herein is by the alleged widow of the deceased employee from the judgment of the circuit court affirming the final award of the commission in favor of the employer and insurer.

On May 27, 1929, the employee, who was known to his employer and associates as Clyde Caldwell, but whose real name was Henderson Bomar, concededly came to his death by accident arising out of and in the course of his employment with J. A. Kreis & Sons, who seem to have been engaged in the construction of a railroad tunnel at Gray Summit, Mo.

On November 22, 1929, just five days before the expiration of the six-month period of limitation, a claim for the death benefit was filed on behalf of a woman in Birmingham, Ala., who represented herself to be Mattie Lee Brown Caldwell, the dependent widow of the deceased. In their answer to her claim the employer and insurer did not question her status as the widow of the deceased, but at the first hearing of the claim, on January 20, 1930, when many of the facts were stipulated and agreed upon by the parties, the record was made to show that there was a dispute in the case as to the fact of marriage, and that for such reason the claimant would be brought to St. Louis from Birmingham, the parties agreeing to waive venue in Franklin county. By reason of such dispute the case was ordered continued and reset.

We emphasize the presence of such controversy in the case at its very outset because of the insistence with which claimant's counsel now argue that her status as a widow was admitted by the employer and insurer, so as to have precluded the commission from finding (as it ultimately did) that she was not the widow, and therefore not entitled to compensation.

On February 14, 1931, a second claim for compensation was filed, such claim being by Frank Bomar of Spartanburg, S. C., who represented himself to be the dependent father of the deceased, and, as such, entitled to the compensation upon the ground that the pending claim of the alleged widow was not a proper one. Quite obviously his claim was untimely, coming long after the expiration of the six-month period of limitation, and for that reason, along with his claim, he filed his petition for substitution and intervention, setting up the fact that the claimant Mattie Lee Brown Caldwell, according to his best information and belief, had not been the legal and lawful wife of the deceased, and praying that he be substituted in lieu of her as the claimant, and that in any event he be permitted to intervene in the cause and be joined with her as a claimant.

The employer and insurer filed their answer to his claim, not questioning in anywise that he was the father of the deceased, but denying that he had been either totally or partially dependent upon the deceased. In addition, they set up the bar of the limitation provision fixed by the act for the filing of claims for compensation.

The case was heard before Referee Graff of the commission, who, on July 7, 1931, entered an award in favor of the employer and insurer, denying compensation to either claimant. The referee found that claimant Mattie Lee Brown Caldwell had been the legal wife of the deceased, but that he not only had not contributed to her support, but in fact was not legally liable for her support at the time of his death in view of the fact that she had refused to follow him from Birmingham and live with him when he had requested her to do so. The claim of the father, Frank Bomar, was denied upon the ground that it had not been filed with the commission within the period of six months after the death of the deceased.

Both claimants applied to the full commission for a review of the referee's award, and on August 12, 1931, the same was in all respects affirmed. Thereafter they appealed to the circuit court of Franklin county, wherein the award of the full commission was affirmed.

In due course, both claimants prosecuted their separate appeals from the judgment of the circuit court to this court, Mattie Lee Brown Caldwell's case being reported as Caldwell v. J. A. Kreis & Sons, 227 Mo. App. 120, 50 S.W.(2d) 725, and Frank Bomar's case as Caldwell v. J. A. Kreis & Sons, 227 Mo. App. 127, 50 S.W.(2d) 728.

Upon the record before us on the former appeal, and with the issue between the parties necessarily limited to one of the sufficiency of the evidence to have supported the commission's finding that even though the claimant Mattie Lee Brown Caldwell had been the wife of the deceased, yet he had not been legally liable for her support because of her refusal to have lived with him, we found that there was not sufficient competent evidence in the record to support the finding that the deceased had not been legally liable for her support, and consequently sent the case back to the circuit court with directions to reverse the award and remand the case generally to the commission.

However, on the former appeal there was no admission by the employer and insurer that Mattie Lee Brown Caldwell had been the wife of the deceased. With the finding of the commission in favor of the claimant upon the issue of marriage, the employer and insurer had nevertheless won upon another issue, that of the legal liability of the deceased for the claimant's support, so that the latter was the issue to be fought out on appeal, with the claimant herself, as the appellant, seeking to have the commission's finding upon such issue overturned, and with the employer and insurer, as respondents, seeking to have it upheld.

In fact, upon the record in the case, the employer and insurer were in no position to urge on appeal that there was no evidence to warrant the finding of marriage between claimant and the deceased, for there was an abundance of evidence on the part of claimant which supported such finding if the claimant's evidence, rather than the countervailing evidence for the employer and insurer, was believed by the commission. True, the employer and insurer had not adduced any evidence of their own directly controverting the testimony of the purported widow upon such issue, but they had nevertheless offered evidence which tended strongly to show that the deceased could not well have been the man who had married claimant. And so when the case reached this court on appeal, they met the one issue which was presented as the basis for claimant's right to a reversal, disregarding the issue of marriage upon which they had lost before the commission; but in so doing they are not to be held subject to the charge of having admitted the truth of the commission's finding upon the question of marriage merely because they, as respondents, did not hopelessly and unnecessarily contest it on the appeal.

So far as concerns the appeal of claimant Frank Bomar, we sustained the finding that the claim was barred by limitation of time as an independent, original claim, not...