Higgins v. Heine Boiler Co.
| Decision Date | 28 July 1931 |
| Citation | 41 S.W.2d 565,328 Mo. 493 |
| Parties | Mathilda Higgins, Widow and Dependent of Patrick J. Higgins, v. Heine Boiler Company and United States Casualty Company, Appellants |
| Court | Missouri Supreme Court |
Rehearing Overruled June 24, 1931. Motion to Modify Opinion Overruled July 28, 1931.
Appeal from Circuit Court of City of St. Louis; Hon. Frank Landwehr, Judge.
Reversed and remanded (with directions).
Watts & Gentry and Arnot L. Sheppard for appellants.
The circuit court erred in approving and affirming the award of the Compensation Commission: (1) Because the evidence discloses that Patrick Higgins was continuously in the employ of Dooley for the year immediately preceding his injury and death, during which period he actually received the sum of $ 1,157.25 as salary. According to the provisions of the Workmen's Compensation Act and the method therein prescribed for arriving at two-thirds of Higgins' average weekly wages, the amount, found to be $ 14,836 instead of $ 20 as allowed by the Commission. Consequently the compensation is figured on an illegal basis and, therefore cannot stand. Secs. 21 (b), 22, Workmen's Compensation Act. (a) Because under the award the period of compensation was made to extend over 387.2 weeks instead of 300 weeks as provided in the act. Sec. 21 (b), Workmen's Compensation Act. (b) Because the record herein discloses that Higgins was not in the employ of either of the appellants herein, but was in the employ of Dooley, doing business as the Keystone Boiler & Sheet Iron Works. The record clearly discloses that the relation between appellants and the Keystone Company was that of contractor and subcontractor and that the Keystone Boiler & Sheet Iron Works was an independent contractor which had agreed to accomplish a certain result for the Heine Boiler Company and was left to its own devices as to how the result should be accomplished. The uncontradicted evidence shows that the Heine Company had no right of control over the employees of the Keystone Company and at no time tried to exercise any such right, but looked to such company only for results. Aubuchon v. Construction Co., 291 S.W. 189. (2) Because claim for compensation was first made against Heine Boiler Company more than six months after the injury and death of respondent's decedent, by reason whereof such action was barred and the Workmen's Compensation Commission acquired no jurisdiction to make any order on appellants to pay compensation to respondent. Sec. 39 Workmen's Compensation Act; Ehrhardt v. Industrial Accident Commission, 172 Cal. 621, 158 P. 193; Brown v. Weston-Matt Co., 202 Mich. 592, 168 N.W. 438; U.S. Casualty Co. v. Smith, 133 A. 853; Garbouska's Case, 130 A. 180; Vang Construction Co. v. Marcoccia, 140 A. 714; Good v. Omaha, 168 N.W. 639, 102 Neb. 654; Smith v. Process Co., 100 Kan. 40, 163 P. 646; Paolis v. Coke Co., 265 P. 291; Ashland Iron & Mining Co. v. Fowler, 208 Ky. 422, 271 S.W. 589; Twonko v. Brass & Copper Co., 224 N.Y. 263, 120 N.E. 638; Bushnell v. Industrial Board, 276 Ill. 262, 114 N.E. 496; Haiselden v. Industrial Board, 275 Ill. 114, 113 N.E. 877; Fidelity & Casualty Co. v. Industrial Accident Commission, 177 Cal. 472, 170 P. 1112; Lough v. Industrial Accident Commission, 207 P. 354, 104 Ore. 313; Duhrkopf v. Bennett, 108 Neb. 142, 187 N.W. 813; Partee v. Railroad Co., 204 F. 970; United States v. Miller, 28 F.2d 848; Bement v. Ry. Co., 194 Mich. 64, 160 N.W. 424; Hansen v. Flinn-O'Rourke Co., 183 N.Y.S. 213; Giannotti v. Giusti Bros., 41 R. I. 122, 122 A. 887. Nor can respondent escape the effects of that provision of the Workmen's Compensation Act by taking the position that a claim for compensation had been filed prior to November 11, 1927: First, because the record wholly fails to show that any claim was filed prior to that date; and, second, because if one was filed it was not one against either of the appellants herein. Where an amended petition or claim is filed bringing in new parties to the action, such new parties must be brought in before the expiration of the time limit for filing such petition or claim. Hiller v. Schulte, 184 Mo.App. 42; Russell v. Nelson, 295 S.W. 118; Meservey v. Const. Co., 291 S.W. 174.
Foristel, Mudd, Blair & Habenicht for respondent.
(1) The evidence before the Compensation Commission is no part of the record proper of the circuit court, whose judgment is appealed from here, and not having been embraced in appellants' bill of exceptions and thereby made a part of the record of the cause in the circuit court, cannot be reviewed by this court. State ex rel. v. Merriam, 159 Mo. 655; Fruin v. O'Malley, 241 Mo. 250; Bateson v. Clark, 37 Mo. 37; Grain Co. v. Britton, 202 Mo.App. 591; Macon v. Public Service Co., 266 Mo. 484; Brocco v. May Department Stores (unreported decision of the St. Louis Court of Appeals). (2) Appellants failed to make and file with the commission a report of the death of Higgins and thereby tolled the operation of the special Statute of Limitations, Sec. 39, W. C. A., Laws 1927, p. 511; Sec. 1334, R. S. 1919; Schrafbauer v. Schneider etc. Co. (unreported decision of the St. Louis Court of Appeals); Albert v. Patterson, 172 Mich. 635.
Seddon, C. Ellison and Ferguson, CC., concur.
This is a proceeding under the Workmen's Compensation Act of Missouri (Laws 1927, pp. 490-522), wherein Mathilda Higgins (respondent here), the widow and dependent of Patrick J. Higgins, seeks an award of a death benefit, by way of compensation, for the accidental death of her husband, which occurred on April 11, 1927. The Heine Boiler Company, and its insurer, United States Casualty Company, under the Workmen's Compensation Act, appeal to this court from a judgment of the Circuit Court of the City of St. Louis affirming (on appeal to the said circuit court) a final award and order of the Workmen's Compensation Commission, allowing the sum of $ 150 for the burial expenses of Patrick J. Higgins, and allowing to his dependent and widow, Mathilda Higgins, a death benefit, by way of compensation, in the aggregate sum of $ 7,744, payable at the rate of $ 20 per week for 387.2 weeks.
The abstracts of record (original and supplemental), as filed in this court, show the following facts and circumstances:
On April 23, 1927, counsel for Mathilda Higgins sent the following letter, addressed to Mr. Albert I. Graff, attorney for the Missouri Workmen's Compensation Commission:
On April 26, 1927, the Missouri Workmen's Compensation Commission replied to said letter, as follows:
On May 10, 1927, counsel for Mathilda Higgins sent the following letter to the Workmen's Compensation Commission:
On May 11, 1927, the Workmen's Compensation Commission replied to said letter, as follows:
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