Jackson v. Curtiss-Wright Airplane Co.

• Decision Date: 23 February 1934
• Citation: 68 S.W.2d 715,334 Mo. 805
• Parties: Selma L. Jackson v. Curtiss-Wright Airplane Company, Employer, and Liberty Mutual Insurance Company, Insurer, Appellants
• Court: Missouri Supreme Court

68 S.W.2d 715

334 Mo. 805

Selma L. Jackson v. Curtiss-Wright Airplane Company, Employer, and Liberty Mutual Insurance Company, Insurer, Appellants

Supreme Court of Missouri

February 23, 1934

Appeal from Circuit Court of St. Louis County; Hon. R. W McElhinney, Judge.

Affirmed.

Woodward & Evans for appellants.

(1) The award is erroneous for the reason that it affirmatively appears in the finding of facts that it is based upon the incompetent testimony of claimant concerning deceased's employment by the Curtiss-Wright Airplane Company. In basing its award upon incompetent testimony the commission acted without and in excess of its powers. De Moss v. Evens & Howard Fire Brick Co., 57 S.W.2d 720; Freese v. St L. Pub. Serv. Co., 58 S.W.2d 758; Woods v. Am. Coal & Ice Co., 25 S.W.2d 144; McCauley v. Imperial Woolen Co., 104 A. 617, 17 N. C. C. A. 864; 2 Schneider's Workmen's Compensation Law, sec. 516, p 1778; Englebretson v. Ind. Accident Comm., 151 P. 451, 10 N. C. C. A. 545; Angerstein, The Employer and the Workmen's Compensation Act of Illinois, sec. 667, p. 1008. (2) The testimony of claimant that deceased was in the employ of employer for the purpose of demonstrating its new airplanes at Miami, at the rate of $ 10 per day, was wholly incompetent, being purely hearsay, and the motion to strike such testimony was adequate and timely, being interposed the moment the objectionable nature of the evidence was apparent. State v. Hope, 100 Mo. 347, 13 S.W. 490; Lyell v. Cox, 245 S.W. 345; Lehigh Stone Co. v. Ind. Comm., 315 Ill. 431. (3) The finding that deceased was employed at an average weekly wage of $ 60 per week is not supported by sufficient competent evidence. It was admitted that deceased had not been in the employ of employer for one full year immediately preceding the accident, and there is no evidence to show what the annual earnings of persons of the same class in the same employment and same location would be during such period. Nor does it appear that it was the custom for such employments to operate throughout the working days of the year. Workmen's Compensation Law, sec. 22, R. S. 1929, sec. 3320; Lamkins v. Malleable Range Corp., 42 S.W.2d 941; Allison v. Eyermann Const. Co., 43 S.W.2d 1063. Even if it had appeared that the employer operated certain parts of its plant throughout the year, if the alleged employment of deceased was seasonable or special, compensation could not be based upon a 300-day year. Biswell v. Ry. Co., 49 S.W.2d 203. (4) The burden was upon claimant to prove all of the facts necessary to support the award, including the average annual earnings.

Harry Troll and Clarence J. Neudeck for respondent.

(1) The value of the evidence, as well as the reasonable inference to be drawn therefrom, is for the commission, and not for any of the constitutional courts. The Workmen's Compensation Act vests in the commission the power to find the facts in all cases which arise under the act, but expressly withholds that power from circuit courts and appellate courts. Beecham v. Greenlease Motor Co., 225 Mo.App. 622, 39 S.W.2d 535; Teague v. Laclede-Christy, 52 S.W.2d 880. (2) When there is an issue as to the truth between two witnesses, an issue of fact is raised, and it is for the commission to decide whom it believes. Munton v. Driemeyer, 223 Mo.App. 1124, 22 S.W.2d 61. (3) If there is enough evidence introduced so that the circuit court, at close of plaintiff's case, in an action at law, would have let it go before the jury, then the award of the commission must be affirmed. Thurman v. Fleming-Young Coal Co., 49 S.W.2d 288; Schulte v. Tea & Coffee Co., 43 S.W.2d 832; Jones v. Century Coal Co., 46 S.W.2d 196. (4) The circuit court, in determining whether the evidence is sufficient to support the award by commission, must consider only evidence tending to support the finding and disregard all opposing evidence. Waterman v. Chicago Bridge & Iron Works, 41 S.W.2d 576; Lampins v. Copper Clad M. R. Co., 42 S.W.2d 941. (5) On appeal, in reviewing the commission's finding, evidence must be construed most favorable to the finding. Crutcher v. Curtiss-Robinson Airplane Co., 52 S.W.2d 1019; Shroyer v. Mo. Livestock Comm. Co., 61 S.W.2d 713. (6) The burden of proving that employment was casual is on the employer. 2 Schneider on Workmen's Compensation, p. 1868; Consumers Mutual Oil Co. v. Indus. Comm., 124 N.E. 608. (7) Where contract was for a fixed rate of wages, and was to continue as long as employer had work to be done, employment was held not casual. Johnson v. Choate, 284 Ill. 119. (8) One employed for an indefinite period at a stipulated sum per day, on a contract for erection of a structural steel building, not a casual employment. Clements v. Columbus Sawmill Co., 1 Mo. 7, Bulletin Ohio Indus. Comm., p. 166. (9) Employment is not casual because it is not for specified time. McFall v. Barton-Mansfield Co., 61 S.W.2d 915; 2 Schneider on Workmen's Compensation Law, p. 253. (10) Evidence that an employee was killed on first night of his employment is not sufficient to establish that his employment was casual. 2 Schneider on Workmen's Compensation Law, p. 1801; Doherty v. Grasse Isle Twp., 205 Mich. 592. (11) When incompetent evidence, hearsay or self-serving evidence is offered objection must be made thereto at time the question is asked, and if admitted without objection, and if material to the issue, the court will give it value of direct evidence. Objection comes too late after witness has been allowed to answer question. Where there is no motion made to strike, the matter is not preserved for consideration on appeal. Munton v. Driemeier Storage & Moving Co., 22 S.W.2d 64; Poluski v. Glen Alden Coal Co., 286 Pa. 473; Huelsmann v. Stute & Co., 28 S.W.2d 388; Diaz v. United States, 223 U.S. 442; Ridenhour v. Okla. Contracting Co., 45 S.W.2d 113. (12) The initiative in excluding improper evidence is left entirely to the opponent. 1 Wigmore on Evidence (2 Ed.), sec. 18, p. 173. (13) Even where timely objection is made, if the ruling of the court is adverse to same, exceptions must be saved in the record by counsel, and unless excepted to in the progress of the case, ruling is not subject to review on appeal. Robyn v. The Chronicle Pub. Co., 127 Mo. 392; Meyers v. Drake, 24 S.W.2d 123. (14) Appellant cannot complain of testimony which he elicited on his own cross-examination, even though the same was incompetent. Harrell v. Harrell, 223 S.W. 919, 284 Mo. 218. (15) Where the evidence shows that previous employment of deceased in the same line of work was regular, and shows that he received about the same amount of compensation as provided by contract in instant case, the burden of proving any different status of employment, or annual earning of persons in the same class than that shown by the evidence was on the employer. Hartmann v. Union Elec. L. & P. Co., 53 S.W.2d 244.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

We have adopted appellant's statement of the case, which reads as follows:

"This is an appeal from a final award of the Compensation Commission wherein the claimant (respondent here) was awarded $ 12,000 on account of the death of her husband, who was alleged to have been in the employ of the Curtiss-Wright Airplane Company at the time of his death.

"Dale ('Red') Jackson, a well-known aviator, was killed in Miami, Florida, on January 6, 1932 while attending the Miami air meet. At the time of his death he was flying a newly-constructed airplane known as a 'Teal Amphibian,' which had been developed by the Curtiss-Wright Airplane Company at its St. Louis factory and flown to the Miami Air Meet the day before Jackson was killed. Claimant is the widow of Jackson, having been married to him on June 2, 1929, and, so far as the record shows, totally dependent upon him for support.

"The above facts were not in dispute. The main controversy at the hearing concerned the question of Jackson's employment by the Curtiss-Wright Airplane Company, and the Employer's and Insurer's answer set out that Jackson was not in the employ of Curtiss-Wright Airplane Company at the time of his death.

"In support of the issue concerning the employment, claimant testified that on January 6, 1932, her husband was working for Curtiss-Wright Airplane Company as a demonstrator of a Teal Amphibian airplane at the rate of $ 10 a day, one day off a week, and that he had been in this employment since the later part of December, 1931 (approximately one week), having been employed at the Lambert-St. Louis Airport by Walter Beech, president of the company. On cross-examination it developed that the source of information upon which the above testimony was given was from statements made by deceased to the claimant, and thereupon the Employer and Insurer moved that the above testimony be stricken from the record. Upon an adverse ruling to this motion exceptions were duly saved.

"In further support of the assertion that Jackson had been employed to demonstrate the new airplanes at the Miami Air Meet, Philip Silverson, an aerial photographer at whose home claimant was living at the time of the hearing, and who stated that he was a close personal friend of Jackson during his lifetime, testified that some time in the latter part of December, 1931, he was with Jackson at the Lambert-St. Louis air field when they met Mr. Beech, president of the Curtiss-Wright Company. The new Teal Amphibian plane was standing near the Curtiss-Field factory and Jackson and Beech got into a discussion concerning the plane. Beech asked Jackson if he wanted to fly the plane at Miami. Jackson replied that he would, but wanted to know what the compensation would be. Beech told him that he would pay him $ 10 a day. During the discussion...