Cassidy v. Eternit, Inc.

• Decision Date: 13 October 1930
• Parties: Maurice J. Cassidy and Theresa C. Cassidy v. Eternit, Inc., and Royal Indemnity Company, Appellants
• Court: Missouri Supreme Court

32 S.W.2d 75

326 Mo. 342

Maurice J. Cassidy and Theresa C. Cassidy v. Eternit, Inc., and Royal Indemnity Company, Appellants

Supreme Court of Missouri

October 13, 1930

Respondents' Motion for Rehearing Overruled October 13 1930.

Appeal from Circuit Court of City of St. Louis; Hon. Erwin G Ossing, Judge.

Reversed.

Case, Voyles & Stemmler for appellants.

(1) There is not sufficient competent evidence in the record to warrant the finding that the accident to the respondents' son, resulting in his death, arose out of, and in the course of, employment for Eternit, Inc. (a) There is a failure of proof that, at the time of the accident, deceased was in the employ of Eternit, Inc. (b) Even if it is held that, at the time of the accident, deceased was in the employ of Eternit, Inc., there is a failure of proof that the accident arose out of, and in the course of, that employment. Workmen's Compensation Act, secs. 3 and 7 (c); Smith v. Mercantile Co., 14 S.W.2d 470. (2) Under the finding of fact of the Commission that the deceased at the time of the accident resulting in his death, had been working for the employer for only one and one-half consecutive working days, deceased was a "casual" employee, and, as such, expressly excluded from the provisions of the act. Workmen's Compensation Act, secs. 5, 7 (d); Gaynor's Case, 217 Mass. 87; Aurora Brewing Co. v. Industrial Board, 115 N. E. (Ill.) 207. (3) The burden is on the claimants (respondents) to prove that they were actually dependent upon the earnings of their deceased son to provide them with the support necessary to maintain them in their class or position in life. Until such actual dependency is established, no award of compensation can properly be made in favor of them. There is not sufficient competent evidence in the record to warrant the finding of actual dependency. Workmen's Compensation Act, sec. 21 (d); Serrano v. Packing Co., 194 Iowa 689, 190 N.W. 132; Pratt Co. v. Industrial Commission, 293 Ill. 367; Kelley v. Ice Cream Co., 188 N.Y.S. 584; Sigalove v. Penzel, 218 N.Y.S. 85; Morris v. Coal & Supply Co., 266 Pa. 216, 109 A. 914. (4) To be "total dependents" of the deceased son, the claimants must prove that they received all of their support from and subsisted entirely on his earnings. There is not sufficient competent evidence in the record to warrant the finding of total dependency. Bloomington-Bedford v. Phillips, 65 Ind.App. 189; Hunnold on Workmen's Compensation, p. 238; McCormick v. Coal & Coke Co., 117 Kan. 686, 232 P. 1071; C. W. & F. Coal Co. v. Industrial Commission, 329 Ill. 494, 160 N.E. 833; In re Dorinza, 229 Mass. 435, 118 N.E. 942. (5) If it should be held that the claimants had established a partial dependency, then the measure of dependency should be determined by the proportion which the deceased's contributions bore to the entire fund used for the claimants' support. And, in determining the amount of the deceased's contributions, it is necessary to deduct from the amount turned over the reasonable value of his board, lodging and clothes, the money returned to him for his spending money, the amount expended for the operation and maintenance of his two automobiles, etc. Workmen's Compensation Act, sec. 21 (c); Michael v. Packing Co., 120 Kan. 684, 244 P. 1050; Moll v. City Bakery, 199 Mich. 670, 165 N.W. 649; Milwaukee Basket Co. v. Wiecki, 173 Wis. 391, 181 N.W. 308.

Henwood, C. Davis and Cooley, CC., concur.

OPINION

HENWOOD

Maurice J. Cassidy and Theresa C. Cassidy, father and mother, and Jean Catherine Cassidy, sister, of Maurice J Cassidy, Jr., deceased, filed with the Workmen's Compensation Commission their claim for death benefits against Eternit, Inc., the employer of deceased, and Royal Indemnity Company, the insurer. A hearing on their claim before the Commission resulted in a final award of $ 150 for burial expenses, and a total death benefit of $ 13,200, or the sum of $ 10 per week for 660 weeks to Maurice J. Cassidy, and the sum of $ 10 per week for 660 weeks to Theresa C. Cassidy. The employer and insurer took an appeal to the Circuit Court of the City of St. Louis, where a judgment was entered affirming the final award of the Commission in all particulars, and from that judgment the employer and insurer have, in due course, perfected an appeal to this court.

The evidence adduced at the hearing before the Commission is substantially as follows: At the time of the accident in question, the Eternit Company was engaged in the construction of a plant in the city of St. Louis, in which it was to manufacture asbestos shingles and building products. It was acting as the general contractor and had general supervision over the construction work, but some of the work was being done by independent contractors. The Morgan Hauling Company, as an independent contractor, had the job of erecting some cranes and other machinery. The work of the Morgan Hauling Company required the services of a hoisting engineer to operate the air hoist on one of its automobile trucks. A controversy arose as to whether this hoisting engineer should be placed on the pay roll of the Eternit Company or the Morgan Hauling Company, and it was finally determined that this hoisting engineer would be paid by the Eternit Company in the same manner as the hoisting engineer who was operating the overhead crane. Under this arrangement, Maurice J. Cassidy, Jr., went to work on the morning of Friday, July 8, 1927, for wages of $ 1.50 per hour, or $ 12 per day. All workmen on this job quit work at twelve o'clock noon on the following day, Saturday, July 9th. Shortly before twelve o'clock on that day, while climbing down a ladder to the cage of the overhead crane, Cassidy came in contact with a highly charged electric wire of the overhead crane, and was thereby caused to fall, about forty feet, to his death.

P. J. Brice, representative of the Hoisting Engineers' Local, testified that Cassidy went to work as a member of the Eternit Company's crew, subject to the orders of the foreman of the Morgan Hauling Company, and was placed on the pay roll of the Eternit Company, in furtherance of an agreement to that effect.

Paul McCorkle, plant manager of the Eternit Company, testified that the independent contractors, including the Morgan Hauling Company, were doing the work on a "time and material plus basis;" that Cassidy was on the pay roll of the Eternit Company; and that the Morgan Hauling Company "got no percentage" on Cassidy's wages.

Moody Crews, foreman of the Morgan Hauling Company, testified that Cassidy was employed by the Eternit Company, but that Cassidy was subject to his orders and directions in operating the air hoist on one of the Morgan Hauling Company's trucks. He further testified as follows:

"Direct Examination.

"Q. Mr. Crews, how long before you learned of Mister -- of young Cassidy's death was it that you had seen him or talked to him? A. It was exactly nine minutes to twelve.

"Q. That was the time when you last talked to him? A. Yes, sir.

"Q. And at that time what did he say to you or what did you tell him to do, if anything? A. He came up to me and asked me what time it was and I told him, I pulled out my watch and I said, it is nine minutes to twelve, and he asked me whether he had to make any more hoists before noon or not and I told him I didn't have any, I just got through raising the posts and we had to bolt it up in its place and it would take quite a while to do that and we would not need any more before dinner. He said, 'Where am I supposed to get my check at?' I told him that I didn't know whether they brought the checks around or whether he was supposed to line up at the office, so I told him to go up and see the other engineer on the other crane that is in operation and he will inform you where to get your check at.

"Cross Examination.

"Q. Had this other engineer ever told you to send to him anybody that inquired about checks? A. No, sir.

"Q. Had anybody in the employ as far as you know of the Eternit Company told you where to send men who might inquire of you where they would get their checks? A. Well, some time previous, that is, before this accident happened, there was a little argument up there about who was supposed to pay this engineer that was operating there before, but I don't know, I don't know much about this, and Mr. Morgan, I believe, had his check made out to this engineer and the Eternit people told Mr. Morgan they would pay the engineer themselves. That is all I know about it.

"Q. This was some other engineer before Maurice Cassidy? A. Yes, sir; that is why I thought I would tell him to go up and see this other engineer and he could tell him where to get his check from.

"Recross Examination.

"Q. The place where you and he were when he came to ask you about the check, where was that? A. Inside of the building.

"Q. How close to the place where the accident occurred? A. About 250 foot, 200 foot.

"Q. Did any part of the duties that fell on Mr. Maurice Cassidy in his employment up there, take him to this crane from which he fell? A. I don't know nothing about that, only simply going up there to inquire about getting his check at twelve o'clock."

J. Paul, another hoisting engineer, was interrogated, in part, as follows:

"Direct Examination.

"Q. On July 9, 1927, were you working on this job where Mr Cassidy was killed? A. I was.

"Q. Did you hear any conversation between him and Mr. Crews? A. Mr. Cassidy was just hoisting up a piece of iron, I believe and I was on the air compressor for the Arthurs Ice Company. I was operating the air compressor and after Mr. Cassidy had been hoisting up this piece of iron he came over to the compressor and asked me who was going to pay him, so I told him I thought the Eternit...