Cobb v. Standard Acc. Ins. Co.

• Decision Date: 12 September 1930
• Docket Number: 4812
• Citation: 31 S.W.2d 573
• Parties: COBB et al. v. STANDARD ACC. INS. CO. et al.
• Court: Missouri Court of Appeals

31 S.W.2d 573

COBB et al. v. STANDARD ACC. INS. CO. et al.

No. 4812

Court of Appeals of Missouri, Springfield

September 12, 1930

Appeal from Circuit Court, Stoddard County; S. C. Walker, Judge.

“ Not to be officially published.”

Proceedings under the Workmen’s Compensation Act by Dora Cobb and others, dependents of Henry A. Cobb, employee opposed by B. Johnson & Son, employer, and Standard Accident Insurance Company, insurer. From a judgment affirming the award of the compensation commissioners, the employer and insurer appeal.

Affirmed.

J. D. Leritz, of St. Louis, and Wammack, Welborn & Cooper, of Bloomfield, for appellants.

Homer F. Williams, of Marble, Hill, and Davis & Damron, of Fredricktown, for respondents.

OPINION

BAILEY, J.

This is an action by the widow and minor children of Henry A. Cobb, deceased, to recover compensation for his death under the provisions of the Workmen’s Compensation Act (Laws of 1927, p. 490). A hearing was had before one of the commissioners, who, after making a finding of facts with declaraions of law, awarded to plaintiff a sum of not to exceed $150 for funeral expenses, and $12 per week as compensation for a period of 300 weeks. Upon application of all parties the award was reviewed by the whole commission, and sustained. An appeal was then taken by appellants to the circuit court of Stoddard county, and the award was again affirmed. Thereupon an appeal was duly taken by defendants to this court.

The question presented by defendant’s answer filed before the commission, and now urged on this appeal, is whether or not Henry Allen Cobb, deceased, was at the time of his death, which occurred on April 9, 1929, employed by B. Johnson & Son, one of the appellants here. The commission found that he was so employed. The commission further made declarations of law, as follows:

"1. B. Johnson & Son as the lessee had the legal title to the premises upon which the employee was injured and was the owner of such within the meaning of this act. The work that was being carried on at the time of such injury was the usual business of the said B. Johnson & Son. Therefore, they were the employer of the deceased employee.

2. Charles E. Corbin had no title or right whatsoever in the ties which were being handled and to all practical purposes was an agent and employee of B. Johnson & Son.

3. Where an employee is killed by accident arising out of and in the course of his employment, his dependents are entitled to a death benefit as provided by the Act."

The Workmen’s Compensation Act provides that, upon appeal from the award of the commission, no additional evidence shall be heard and "the findings of fact made by the commission within its powers shall be conclusive and binding." Laws 1927, p. 512, § 44. This section further limits the court on appeal to a consideration of questions of law, and provides that it may modify or set aside the award only upon the following grounds:

"1. That the commission acted without or in excess of its powers.

2. That the award was procured by fraud.

3. That the facts found by the commission do not support the award.

4. That there was not sufficient competent evidence in the record to warrant the making of the award." This section has been construed to mean that the findings of fact and award of the commission have the same force and effect as the verdict of a jury. Kinder v. Hannibal Car Wheel & Foundry Co. (Mo. App.) 18 S.W.2d 91; Hager v. Pulitzer Pub. Co. (Mo. App.) 17 S.W.2d 578, 579; Cotter v. Valentine Coal Co., 222 Mo.App. 1138, 14 S.W.2d 660. In keeping with the theory above expressed as to the effect of the commission’s finding and award, it was said in the Cotter Case, supra, that: "In determining the sufficiency of the evidence to sustain the finding of fact by the Commission this court will look only to the evidence which is most favorable to support such finding." 222 Mo.App. 1138, 14 S.W.2d 660, loc. cit. 662. It follows, too, that, if there be any substantial evidence upon which an award made by the commission, within its powers, may be upheld, it is the duty of the court on appeal to sustain the award, just as it would the verdict of a jury upon a question of fact.

With these principles in mind, the evidence most favorable to plaintiffs will be considered. It stands admitted that Henry A. Cobb was killed on April 9, 1929, by accidental injury received while loading railroad ties into a railroad car. It also is admitted that, if Henry A. Cobb, deceased, was employed by B. Johnson & Son, plaintiffs were entitled to the $3,600 awarded.

On the question of employment it appears from the evidence that B. Johnson & Son was a copartnership dealing extensively in the manufacturing and sale of railroad ties. One W. W. Mathews was employed by them in the capacity of a foreman, or overseer, with authority to employ the men who composed the crew. Henry A. Cobb, deceased, was a member of the loading crew hired by Mathews, and this particular crew was generally known as B. Johnson & Son’s loading crew. Nelson Lincoln, a member of the same crew, testified in part as follows: "Q. Were you the regular B. Johnson & Son tie loading crew? A. Yes, sir. They called me the captain. Cobb was in my crew that day. At various times when we were loading for B. Johnson & Son Mr. Mathews notified us and directed us in the matter. There was no other boss besides him; we would get our orders from him. On that day we got our orders from William Mathews. He was present when the ties were being loaded."

He further testified that he had received pay checks from a Mr. Corbin, but that "Mr. Corbin did not hire us to cut ties on April 9, 1929; Mr. Mathews told me they were going down there. I do not remember of Mr. Corbin directing us in any way in the loading of the ties. If B. Johnson & Son had an arrangement for Corbin to pay us boys and for Corbin to be reimbursed by B. Johnson, I don’t know anything about it." Mrs. Cobb testified her husband was working for B. Johnson & Son on April 9, 1929, and had been working for them about four years.

Dan B. Cobb, a brother of deceased, testified that he was a member of the B. Johnson & Son crew and had been for two years; that Bill Mathews was the employer for B. Johnson & Son and was there on the day deceased was killed; that Mathews, at the time they were loading, said, "It looked like it was going to rain on us and he said he would love to get them three cars loaded and get back, because the officials were coming. After we started loading ties I never had any conversation with him at all, no more than that one thing to all of us."

On the part of defendants the evidence further shows that, at the time of and for several years prior to the death of Cobb, one Charles Corbin was engaged in manufacturing ties in the vicinity of Advance, Mo.; that prior to July, 1927, Corbin had had dealings with the firm of B. Johnson & Son and had become indebted to them; that, in order to enable Corbin to pay his debts, B. Johnson & Son made arrangements for the purchase of a certain tract of timber for the sum of $550. The evidence of defendant further tended to show that the purchase price for this timber was paid by B. Johnson & Son and the title taken in their name as security...