Douglas v. Calvary Cemetery Ass'n
| Decision Date | 01 July 1949 |
| Docket Number | 27645 |
| Parties | DOUGLAS et al. v. CALVARY CEMETERY ASS'N |
| Court | Missouri Court of Appeals |
Not to be reported in State Reports.
White White & White, St. Louis, Irwin White, St. Louis, for appellants.
Leahy & Leahy, St. Louis, Joseph L. Badaracco, St. Louis, for respondent.
This action was brought by the dependent parents of a deceased minor before the Division of Workmen's Compensation. The referee found for the claimants, but the Commission reversed the award upon review. Claimants appealed to the circuit court where the action of the Commission was sustained and claimants again appealed.
It is admitted that the employee sustained an accidental injury resulting in his death and that the injury arose out of and during his employment on June 30, 1947. The claim was filed as required by statute and the employer was notified. It is also admitted that the average weekly wage of the deceased was $ 30.34 and that no compensation or medical attention was furnished by the employer.
There is only one issue present in the case and that is whether or not the Calvary Cemetery Association, a charitable organization, was operating under the Missouri compensation law. The association had elected to reject the law by a proper written notice to the Commission on September 3, 1931 and had never at any time thereafter withdrawn its rejection. It is the contention of the claimants that the employer failed to keep a notice of its rejection posted as required by the statute. Section 3690, R.S.Mo.1939, Mo.R.S.A. § 3690, provides that when an employer rejects the act, the Commission shall furnish such employer a notice of the rejection 'which the employer shall keep posted in a conspicuous place on his premises where it can be seen by his employees.' The evidence submitted by the claimants to sustain their contention was as follows:
The father of the deceased, one of the claimants, said that he had worked for the Cemetery Association for about a month in 1945 and once in 1947 for a period of two or three weeks and that he saw no notice of rejection posted in the office, the tool shed, or the barn, that was upon the place.
The mother, also a claimant, testified that she went to the office of the association to see about the grave of her aunt and that while there she saw no notice of rejection.
An insurance man testified that he went to the property of the association to investigate the accident for the purpose of determining whether or not it came under a policy of public liability insurance. He said:
Another witness was called who had worked for the Cemetery Association for about two and one-half months in 1946 and he said he did not 'recall seeing the notices.'
The attorney for the claimants said that he went to the tool shed after the accident and did not see the notice.
The employer called to the stand its general foreman and superintendent who had occupied that position for four years but had been employed there in a lesser capacity for twenty-two years. He stated that when the notices of rejection were received from the Commission in 1931 he took them to a department store and had them framed, and that they had been posted at all times since then except for one that had been replaced by a copy after the original had been lost in a fire.
One was always in the main office attached to the upper portion of a box designed as a depository for notes from employees regarding grievances that they might have. Another was in the tool shed above the time clock, and another in the barn. The notices and the grievance box were introduced in evidence. The portion of the office where the grievance box was located was not open to the general public and not visible from the public part of the office where the mother of the deceased had been.
There was evidence that the association employed 104 people...
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