May v. Ozark Central Tel. Co., 28956
| Decision Date | 16 November 1954 |
| Docket Number | No. 28956,28956 |
| Citation | 272 S.W.2d 845 |
| Parties | Mrs. W. R. (Rosa) MAY (Claimant), Respondent, v. OZARK CENTRAL TELEPHONE COMPANY (Employer) and Utilities Insurance Company (Insurer), Appellants. |
| Court | Missouri Court of Appeals |
Dearing & Matthes, and M. C. Matthes, Hillsboro, for appellants.
Mosby & Mosby, Jos. W. Mosby, Linn, and John P. Peters, Linn, for respondent.
In this proceeding, which originated before the Industrial Commission, the claimant (respondent), Rosa May, seeks to recover compensation for the death of her husband, William R. May. It is undisputed that he was instantly killed as the result of the discharge of a shotgun, while engaged in clearing brush and trees from a strip of land over which the alleged employer, Ozark Central Telephone Company (appellant), proposed to construct a telephone line.
A hearing was had before a referee of the Industrial Commission who entered an award denying compensation. This award was based upon his finding that the death of the alleged employee, .'
Upon application of Mrs. May the award was reviewed by the Industrial Commission and it made a final award affirming the award of the referee denying compensation but based its ruling upon a finding that the deceased,
In due time the cause was appealed to the Circuit Court of Osage County, Missouri which court, after considering the transcript and the argument of counsel, found that there was not sufficient competent evidence in the record to warrant the making of said award in favor of the employer-insurer and the award was accordingly reversed and the cause remanded to the Commission for further proceedings.
The employer and insurer have duly appealed from the judgment of the Circuit Court and the cause is now before this court for our review. We have jurisdiction of the appeal, since it appears that in the event compensation should be allowed the amount thereof would not exceed $7,500.
It appears from the evidence that in the summer of 1950 the Ozark Central Telephone Company entered into a verbal contract with Moses Helton to cut the brush and trees from a right of way along the east side of Highway Number 133 from Meta to Folk, Missouri. The right of way, over which the alleged employer intended to construct a new telephone line, was to be 12 feet wide and about six miles long. Helton was to receive $50 per mile for this work and without detailing the facts we may observe that it is apparent that he was an independent contractor. Before the work was commenced Mr. Helton entered into a verbal contract with the deceased whereby it was agreed that he would help with this work and would receive one-half of the money paid by the company to Helton. They started to work during the last part of July and on September 18, 1950, Mr. May was shot and killed.
At the time this tragedy occurred the men were working upon the land of Fred Woehr. The Telephone Company had obtained verbal permission from Mr. Woehr to cut this right of way but no written agreement or easement had been executed. At the point in question a small portion of the strip was on the right of way of the State Highway and the remainder was just inside the fence on the land of Woehr. At the time the fatal shot was fired May was engaged in trimming the limbs from a tree they had just sawed down. At that time Helton was sitting on a stump 75 feet away and was sharpening a cross cut saw. Upon hearing the shot he immediately ran down to where May was and found that he was dead.
The pellets from the gun were described as number two shot. These are rather large shot generally used in hunting geese and sometimes in shooting foxes and wolves. The charge struck deceased on the left side of the head. Witnesses estimated that the gun was discharged at a distance of from 75 to 100 feet away. It was close enough that Helton first thought that Mr. May had shot himself. To the north of the point where deceased was working the brush was quite heavy so that a person could creep up close to him without much danger of detection. There was evidence that there was some hunting in this area during all seasons of the year although no witness had seen a hunter or heard any shots on this particular day.
It appears clear that Mr. May had feared for his life for several months before his death. A number of witnesses testified that he appeared worried and afraid. On one occasion in June, 1950, a car drove into the driveway at the May home about 9 p. m. and five shots were fired in rapid succession before the car sped away. Thereafter, a car often drove into his driveway at night and particularly on every other Friday night. Mr. May appealed to a friend, Claude Howard, to help him. They complained to the sheriff of Maries County who brought a deputy to the May home on one Friday night and the four men stood guard until 1 a. m. hoping to apprehend the person causing this disturbance. They were unsuccessful.
As a result of these events deceased became so afraid that he moved his bed away from the window and during the hot months of July and August slept with the windows down and the shades drawn. He told his wife he wouldn't sleep near the window because he didn't want a .38 through his head. There is some evidence to indicate that before his marriage to claimant Mr. May had run around with a married woman and that her husband had made threats to 'get' him. However, this person was investigated by the officers after the killing and he was able to establish a personal alibi. No one was ever arrested or charged with the killing of May and at the time of the hearing the case remained unsolved.
In a workmen's compensation case the scope of review is limited. The circuit court and this court are governed by the same rules in undertaking to review an award of the Industrial Commission. We cannot substitute our judgment on the evidence for that of the Commission. We are, however, authorized to determine whether the Commission, upon consideration of all the evidence before it, could have reasonably made its findings and reached the result indicated. Furthermore, if we conclude that the decision is clearly...
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