Horrell v. Chase Hotel
| Decision Date | 02 November 1943 |
| Docket Number | 26,488 |
| Citation | 174 S.W.2d 881 |
| Parties | ROBERT HORRELL, A MINOR, EMPLOYEE, Respondent, v. CHASE HOTEL, INC., EMPLOYER, and HARTFORD ACCIDENT & INDEMNITY COMPANY, INSURER, Appellants |
| Court | Missouri Court of Appeals |
As Modified December 17, 1943.
Appeal from the Circuit Court City of St. Louis. Hon. Joseph J Ward, Judge.
AFFIRMED AND REMANDED WITH DIRECTIONS.
Edward J. McCullen
This is an appeal from a judgment of the Circuit Court of the City of St. Louis reversing an award of the Workmen's Compensation Commission and remanding the cause to the Commission for rehearing and to redetermine the rate of compensation to be paid Robert Horrell, employee (respondent) during his minority.
The record shows that on February 7, 1941, the employee, a minor then nineteen years old, while in the employ of Chase Hotel, Inc., the employer herein, fell into an elevator shaft and sustained injuries to his back. The Hartford Accident & Indemnity Company, insurer herein, provided the employee with medical and hospital services and paid him compensation benefits at the rate of $ 10.20 per week based on earnings of $ 65 a month. On August 5, 1941, the employee filed his claim for compensation with the Workmen's Compensation Commission. There was a hearing before a Referee of the Commission, and later a hearing before the full Commission where the case was orally argued. The Commission found the employee had suffered a fifteen per cent permanent partial disability in the loss of the use and function of his back as a man and awarded him a total of sixty weeks of compensation at the rate of $ 10.20 per week - said amount being based on the employee's earnings at the time he was injured. The record shows that at the hearing before the Referee it was contended by the employee that because he was a minor he was entitled to have the possibility of his increased earning power during minority taken into consideration in addition to the conceded fact that at the time of the injury he was receiving $ 65 per month as wages as an elevator operator. The Referee found sixty weeks of permanent partial disability and allowed $ 10.20 per week as compensation, and also made, among others, a finding of fact, No. 20, that "the method of wage computation" was by "agreement of parties." In his application to the full Commission for a review of the rulings and findings of the Referee, the employee pointed out that he disagreed with finding No. 20 of the findings of fact of the Referee that the "Method of wage computation" was by "agreement of parties." In said application the employee specifically claimed his right, under Section 3710(j), R.S. Mo. 1939, Mo. R.S.A. Section 3710(j), to have his increased earning power considered by the Commission in making an award because he was a minor; that his minority, under said statute, was a factor to be considered in addition to the factor represented by the wages he was earning at the time of his injury.
The full Commission affirmed the finding of the Referee, including the finding of fact that "the method of wage computation" was "by agreement." The full Commission further found and ruled that "the evidence is insufficient to take into consideration the increased earning power of said minor until he attains the age of twenty-one years, and Section 3710(j) R.S. Missouri, 1939, therefore, is not applicable."
In reversing the award of the Commission and remanding the cause to the Commission for further consideration, the Circuit Court found: (1) That the facts found by the Commission do not support the award, and (2) That there was not sufficient competent evidence in the record to warrant the making of the award.
The employer and insurer, appellants herein, contend that the Circuit Court erred in setting aside the finding and award of the Commission and argue that there was no evidence before the Commission sufficient for it to make an award based on an increase of the employee's earnings during his minority. The appellants insist that the Commission cannot properly make an award based on the increased earning power of a minor unless there be sufficient evidence from which the Commission can make an intelligent finding that such increase would probably occur and the amount thereof, and that there is no such evidence in this record.
It is further contended by appellants that the Circuit Court on appeal in a Workmen's Compensation case is authorized, under Section 3732 R.S. Mo. 1939, Mo. R.S.A. Section 3732, to review only questions of law, and may set aside an award only on any of the following grounds and no other:
Appellants argue that the Circuit Court acted in excess of its powers because its action was not within the purview of any of the four above stated specific grants of authority conferred on it by the Legislature.
Section 3710(j) R.S. Mo. 1939, Mo. R.S.A, Section 3710(j), provides:
"In computing the compensation to be paid to any minor, the increased earning power of such miner until he attains the age of twenty-one years shall be taken into consideration and in all cases in which it is found by the Commission that the employer knowingly employed a minor in violation of the Child Labor Law of this State, fifty per cent additional compensation shall be allowed."
The evidence shows without dispute that the employee was born January 22, 1922, and at the time of his injury on February 7, 1941, was a little past nineteen years old; that he had graduated from the Christian Brothers College on June 5, 1940, and a week thereafter, on June 12, 1940, had become an employee of the Chase Hotel as an elevator operator. It was admitted that the accident sustained by the employee on February 7, 1941, arose out of and in the course of his employment, and that the employer had notice of the accident and that the claim for compensation was filed within the time prescribed by law. It was also admitted that nineteen weeks of compensation had been paid the employee at the rate of $ 10.20 per week; that the rate in the work of the employee as an elevator operator was $ 65 per month.
The employee testified that he was familiar with the opportunities available for advancement in the hotel service for an employee who had such qualifications as he had. With respect to advancement in the service, he testified that after you take your turn you move up in line to number one boy - first you are bellboy, then number one bellboy; you start in as elevator operator, then bellboy, then you move along and move up to desk clerk; that the salary of bellboy is $ 25 per month plus tips; that the salary of a desk clerk is $ 125 per month; that he was number one elevator boy at the time he was hurt; that he was then ready to move up to the position of bellboy. The record does not show what the tips of a bellboy amounted to.
The employee further testified that he had not been employed since he was injured; that he was, at the time of the hearing before the Referee, attending St. Louis University where he was taking an accounting course. He also described the accident and the extent of his injuries, but since those matters are not in dispute on this appeal it is not necessary to go into them here.
F. E. Daniel, Assistant Manager of the DeSoto Hotel in St. Louis, called as a witness on behalf of the employee, testified that he had been in the hotel business eight years; that he started in as a room clerk; that in the hotel business, if one wants to progress, there are opportunities to work up from elevator operator; that the next usual step is for an elevator operator to take a position as bellboy; that a boy with a high school education and possessing the factors of personality and character is competent to perform the work of a room clerk or desk clerk, or junior accountant.
Dr. J. G. Probstein, called as a witness on behalf of the employer and insurer, after testifying as to the nature and extent of the employee's injuries and his condition, further testified that he had discussed the employee's position and condition with the employee's "boss" and that the employer wished to give the employee an opportunity to progress according to his ability and wanted to give him a promotion. The witness stated that the employee "is a swell kid."
There was evidence on behalf of the employee that such promotions as those mentioned in the evidence carried with them increases in compensation. Witness Daniel testified that in hotels representing a cross section of the hotels in the St Louis area the salary for a roam clerk or a desk clerk is from $ 115 to $ 150 per month; that the salary depended on a lot of things; that there was no standard scale for the position of assistant auditor; that in one case he had paid an assistant auditor $ 85 per month and in another case had paid $ 125 per month; that those two men,...
To continue reading
Request your trial