Jones v. Century Coal Co.

• Decision Date: 02 February 1932
• Docket Number: No. 21829.,21829.
• Citation: 46 S.W.2d 196
• Parties: JONES v. CENTURY COAL CO. et al.
• Court: Missouri Court of Appeals

46 S.W.2d 196

JONES v. CENTURY COAL CO. et al.

No. 21829.

St. Louis Court of Appeals. Missouri.

February 2, 1932.

As Modified on Denial of Rehearing February 17, 1932.

Appeal from St. Louis Circuit Court; Moses M. Hartmann, Judge.

"Not to be officially published."

Proceedings under the Workmen's Compensation Act by Hettie Jones, dependent, for the death of her son, Wilson Jones, deceased, alleged employee, opposed by the Century Coal Company, alleged employer, and the Travelers' Insurance Company, alleged insurer. From an order of the Workmen's Compensation Commission denying the claim for compensation, dependent appealed to the circuit court, which reversed the award and ordered the cause to be remanded, with instructions, and the alleged employer and alleged insurer appeal.

Decree of the circuit court reversed, and cause remanded, with directions.

Jones, Hocker, Sullivan & Angert, of St. Louis, for appellants.

S. E. Garner, of St. Louis, for respondent.

BECKER, J.

This proceeding originated before the Workmen's Compensation Commission. The claim was filed January 17, 1928, by Hettie Jones, mother of Wilson Jones, the deceased, against the Century Coal Company, a corporation, as the employer, and the Travelers' Insurance Company, a corporation, as the insurer, pursuant to the provisions of the Missouri Workmen's Compensation Act (Rev. St. 1929, § 3299 et seq.).

It appears that the Century Coal Company is in the retail coal business. Its deliveries of coal are made by motortrucks. The Century Coal Company does not own any trucks, but contracts for the delivery of the coal through independent contractors. It is customary, whenever requested by customers, to send out, with the truck that is delivering the coal to such customer, a man (termed a jobber) to carry or haul the coal from the point where it is dumped by the truck to such place on the premises of the customer as such customer directs. The usual charge of the jobber to put away coal was 50 cents per ton, which was paid the jobber by the customer.

It further appears that the Sawdust & Shavings Supply Company had six trucks with which they hauled coal under contract for the Century Coal Company. This Sawdust & Shavings Supply Company had a single story frame shack on the premises of the Century Coal Company where from twelve to twenty negroes, who worked as jobbers during the coal season, would congregate to wait for an opportunity to accompany a truck load of coal for the purpose of putting the coal away at the customer's premises. In the shack was a stove. When it was cold the various jobbers would "hang around" in the shack waiting their turn to go out on a job. Often some of them would shoot dice. An employee of the Century Coal Company, licensed as a private watchman, had on repeated occasions warned the jobbers not to shoot dice on the premises, and near the noon hour of December 7, 1927, the said watchman came to the shack and found a dice game going on and demanded that it stop. According to the watchman's testimony he was threatened with assault by one of the men who raised a shovel with the intention of striking him. The watchman fired one shot into the floor and was struck by a piece of brick thrown by another of the jobbers. The watchman then fired a shot intending to shoot the man approaching him with the uplifted shovel, which shot, however, struck Wilson Jones in the abdomen as Jones was in the act of arising from his knees on the floor where he had been shooting dice and got between the watchman and the man carrying the shovel. Jones died from his said injuries.

The claim was ultimately denied by the Workmen's Compensation Commission. In connection with the final award the commission adopted the findings, statement, ruling, and award dated June 2, 1928, of the single commissioner who originally heard the claim. These findings of facts are as follows:

"1. Was there an accident? Alleged.

"2. Date? Alleged December 7, 1927.

"3. Place? Alleged St. Louis, Missouri.

"4. Was above employee in employ of above employer at time of accident? No."

"28. Special findings: The evidence in this case shows that Wilson Jones, deceased, was not an employee of the Century Coal Company at the time of the alleged accident, but that he was an independent contractor. The claimant's claim for compensation is therefore denied."

From this award claimant duly perfected her appeal to the circuit court of the city of St. Louis, Mo., which reversed the award and ordered the cause to be remanded to the commission, with instructions to enter an award in favor of the claimant for $2,666.56, plus $150 for burial expenses, and subject to an attorney's lien in favor of claimant's counsel for $500, from which decree and order of said circuit court the alleged employer and alleged insurer duly perfected their appeal to this court.

Appellants here urge that the circuit court erred in making its own finding of facts in a compensation appeal and in reversing the finding and remanding the cause, with instructions to the commission to enter an award contrary to the award made by the commission and in keeping with the finding of facts made by the circuit court. This point is well taken.

It has been held repeatedly that neither the circuit court nor any of the appellate courts have the power or jurisdiction to make findings of fact in a case arising under the Workmen's Compensation Act. That power lies with the commission, and its finding of facts, when made within its powers, is conclusive and binding. Section 3342, Rev. Stat. Mo. 1929; Harbour v. Gardner et al. (Mo. App.) 38 S.W.(2d) 295; Gendron et al. v. Chapin & Co. (Mo. App.) 37 S.W.(2d) 486, loc. cit. 488; Glaze v. Hart et al. (Mo. App.) 36 S.W. (2d) 684, loc. cit. 688.

But claimant contends that this rule does not apply in the instant case, in that the facts here stand practically undisputed, and therefore the question of whether Wilson Jones was an employee of the Century Coal Company or was an independent contractor is one of law and not of fact. It is urged that the commission did not make a finding of facts in this case, but merely ruled as a matter of law that Jones was not an employee of the coal company, and that therefore the circuit court, "in an effort to determine the correctness of the Commission's legal ruling, had to sum up the facts, which it did, and reversed the Commission with directions to do what it should have done in the outset. * * *" To this we cannot accede. The commission in its finding of facts held that "Wilson Jones was not an employee of the Century Coal Company at the time of the alleged accident, but that he was an independent contractor." This is a finding of fact and not a conclusion of law. Such a finding is in the nature of a special verdict and as such binding and conclusive, if supported by any substantial competent evidence. Leilich v. Motor Car Co. (Mo. Sup.) 40 S.W.(2d) 601.

In passing upon the question whether the said finding by the commission that Wilson Jones was not an employee of the coal company at the time of the alleged accident, but was an independent contractor, is supported by any substantial competent evidence, we have in...