Hogue v. Wurdack, 46680
| Decision Date | 13 October 1958 |
| Docket Number | No. 1,No. 46680,46680,1 |
| Parties | Everett HOGUE (Claimant), Respondent, v. Hugo WURDACK, Employer, and Employers' Liability Assurance Corporation, Ltd. (Insurer), Appellants |
| Court | Missouri Supreme Court |
Sherwood R. Volkman, St. Louis, for appellants.
L. Clark McNeill, Geo. F. Addison, Salem, for respondent.
HOLMAN, Commissioner.
In this workmen's compensation case the employer and insurer have appealed from the judgment of the circuit court affirming the award of the Industrial Commission. That award allowed the claimant-employee, Everett Hogue, compensation for disability, disfigurement, and medical expense in the aggregate sum of $7,770.75.
Hugo Wurdack, a resident of St. Louis, Missouri, owned a large farm in Crawford County consisting of 1,156 acres. Claimant lived upon the farm and was locally in charge of the farming operations. It was primarily a stock farm, although some grain and other feed were produced. He was injured on January 31, 1953, in a manner described by him as follows: 'I was preparing to haul hay and the tires on the trailer were low of pressure so I took those off and put them in the trunk of my car and sent them over to the free air station to air them up, and I was placing one back on the trailer, and the rim blew off and hit me.' According to Dr. Hart,
The award now before us for review is the second final award which the Industrial Commission has made in this case. Both awards, however, were in the same amount. Following the entry of the first award on October 19, 1954, the employer and insurer appealed to the circuit court where a judgment was entered affirming the award. The employer and insurer then appealed from that judgment to this court but we transferred the cause to the Springfield Court of Appeals because a contingency existed under which liability for the payment of the award might be terminated before a sum in excess of $7,500 had accrued and hence we could not say with certainty that the amount in dispute exceeded that sum. Hogue v. Wurdack, Mo.Sup., 292 S.W.2d 576.
Mr. Wurdack, in the operation of this farm, would ordinarily be exempted from the operation of the provisions of the Workmen's Compensation Act. Section 287.090. (All statutory references are to RSMo 1949, V.A.M.S.) However, on June 24, 1931, he filed with the Missouri Workmen's Compensation Commission (now Industrial Commission) his notice of election to accept the provisions of said Act as provided in Section 287.090, subd. 2. That notice stated that the election was applicable to 'farm labor and domestic servants' upon his 'farm or private estate.' In that instrument he requested that three printed notices of 'Employer's Acceptance of Law' be sent to him, and the transcript indicates that the Commission complied with that request. It may also be noted that on July 12, 1934, Wurdack filed his acceptance of the amendment relative to occupational diseases and requested four printed notices which were sent to him. Moreover, it is apparent that the employer obtained a policy of workmen's compensation insurance, as the Employers' Liability Assurance Corporation is conducting the defense of this claim as the employer's insurer.
However, in order for an exempted employer to bring himself within the provisions of the Workmen's Compensation Act, it was (on the dates in question) not only necessary that he file the notice of election to accept the same, but he must also keep 'posted in a conspicuous place on his premises a notice thereof to be furnished by the commission * * *.' Section 287.090, subd. 2.
While it has no effect upon this claim, it may be of interest to note that the foregoing statute has since been amended so as to dispense with the requirement of posting a notice and providing that an exempted employer may come within the provisions of the Act 'by filing with the commission notice of his election to accept the same, or by the purchasing and accepting by the employer of a valid compensation insurance policy * * *.' Laws of Missouri, 1957, pp. 579, 580, V.A.M.S.
Upon the first appeal the appellants raised a number of contentions, one of which was that claimant was not entitled to an award for the reason that he had failed to prove that Hugo Wurdack had complied with the requirements of Section 287.090, subd. 2 so as to bring himself and his farm employees under the provisions of the Act. Specifically, it was contended that claimant failed to prove that Wurdack had kept posted in a conspicuous place upon his premises a notice of his election to accept the Act. In its opinion the court of appeals ruled all of the appellants' contentions adversely to them except the one relating to the failure of proof as to keeping the notice of acceptance posted upon the premises. As to that issue, it was ruled that the claimant had failed to present any proof of a substantial compliance by Wurdack of the requirement of Section 287.090, subd. 2 that the notice of acceptance be kept posted upon his premises. The court of appeals stated, however, that, 'it being apparent that the claim is meritorious and that all available evidence bearing upon the posting and maintenance of notices was not developed at the prior hearing, the cause should be remanded for rehearing rather than reversed outright.' Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 501.
The cause was remanded to the Industrial Commission and a hearing was held by the said commission on June 25, 1957, which was limited to the issue as to 'the posting of notice by Mr. Wurdack that he had elected to accept the Missouri Workmen's Compensation Act.' On July 16, 1957, the commission entered an award providing for the payment to claimant of the following sums: medical aid, $770.75; compensation (200 weeks at $30), $6,000; facial disfigurement, $1,000--a total of $7,770.75. In that connection the commission made findings of fact to the effect 'that previous to the date of the accident herein the employer had posted notice of his election to accept the Missouri Workmen's Compensation Law; that the same was posted in a conspicuous place on the employer's premises; that the employer continuously maintained said posted notices thereafter and that said posted notices were in fact conspicuously posted on employer's premises on January 31, 1953, the date of the accident herein.'
In due course the employer and insurer again appealed the cause to the circuit court where a judgment was entered affirming the award. They have duly perfected their appeal from that judgment to this court. In considering the question of our appellate jurisdiction we note that the situation is different from that which existed at the time of the first appeal. Prior to the time the instant appeal was taken all of the weekly payments provided for in the award had accrued and become payable so that we can now say with certainty that the amount in dispute ($7,770.75) exceeds the sum of $7,500, and hence our jurisdiction accordingly becomes apparent. Article V, Section 3 Constitution of Missouri 1945, V.A.M.S.
The sole point raised by appellants upon this appeal is that 'the award of the Industrial Commission as affirmed by the Circuit Court of Crawford County, Missouri, should be reversed because the award is not supported by competent and substantial evidence as to keeping posted notices signifying...
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