McFall v. Barton-Mansfield Co.

• Decision Date: 24 June 1933
• Docket Number: 31681
• Parties: Rutherford McFall v. Barton-Mansfield Company, Appellant
• Court: Missouri Supreme Court

61 S.W.2d 911

333 Mo. 110

Rutherford McFall v. Barton-Mansfield Company, Appellant

No. 31681

Supreme Court of Missouri

June 24, 1933

Appeal from New Madrid Circuit Court; Hon. John E. Duncan Judge;

Affirmed.

McKay & McKay for appellant.

(1) The employment of Rutherford McFall was casual and not incidental to the operation of the usual business of the employer and by reason of the third subdivision of Section 3303, R. S. 1929 the Barton-Mansfield Company, employer, is exempt from any and all liability in the cause at bar. An examination of the third subdivision of said section reveals four words which are outstanding and when determined and construed by the court, will disclose the intention of the Legislature in the enactment of said Section 3303. The four words used are as follows: "Casual," "Incidental," "Usual," and "Or" and are defined by Webster in his Unabridged Dictionary, as follows: (a) "Casual" -- coming without regularity, occasional incidental, as casual expenses. (b) "Incidental" -- happening as an occasional event; without regularity, casual. (c) "Usual" -- such as is in common use; such as occurs in ordinary practice. (d) "Or" -- between the word "casual" and the word "not" in Subdivision Three in Section 3303, should be construed as "And." 6 Words and Phrases, p. 5002; State v. Bullington, 100 Mo. 87; Litchfield v. Cudworth, 32 Mass. 23; Richmond v. Woodard, 32 Vt. 833; Parker v. Carson, 64 N.C. 563; United States v. Fisk, 70 U.S. 445, 18 L.Ed. 243. The Legislature has provided certain rules for the construction of statutes in this State, and the rule applicable to the construction of subdivision 3, Section 3303, under consideration in this cause, is as follows: Words and phrases shall be taken in their plain and ordinary or usual sense, but technical words and phrases having a peculiar or appropriate meaning in the law, shall be understood according to their technical import. Sec. 655, R. S. 1929; Henry County v. Evans, 97 Mo. 47; State ex rel. v. Court, 128 Mo. 427. (2) Barton-Mansfield Company disclaims liability under the Workmen's Compensation Act for the reason no written notice of the time, place and nature of the injury, and no name of the person injured, was given to the employer as soon as practicable after the happening of the accident, and that no notice was given for more than six months after the accident; that by reason of Section 3336, R. S. 1929, of the Workmen's Compensation Act, it is not liable. Wheeler v. Railroad Co., 33 S.W.2d 179; State v. Hade, 38 S.W.2d 44. (3) Barton-Mansfield Company denies liability for the reason no claim under this act was filed with the Workmen's Compensation Commission within six months after the injury occurred, as provided by Section 3337, R. S. 1929. (a) The injury occurred Wednesday morning, February 6, 1930, by falling from a building, and was discernible immediately after the fall. (b) No claim was filed with the Commission as required by Section 3337, R. S. 1929, until August 7, 1930. (c) The six months limit for filing compensation claims commences to run from the time it becomes reasonably discoverable and apparent that claimant sustained compensable injury, which was February 6, 1930, and the claim was barred August 6, 1930. Wheeler v. Railroad Co., 33 S.W.2d 179; State v. Hade, 38 S.W.2d 44. (d) Section 3337, limiting the time for filing claims for compensation, was enacted for the benefit of the employer to protect it against stale claims, and bar a claim filed out of time. Wheeler v. Railroad Co., 33 S.W.2d 179; State v. Hade, 38 S.W.2d 44. (e) The word "month," used in Section 3337, limiting the time for filing claims with the Commission, means "calendar month." Sec. 655, R. S. 1929; 38 Cyc. 312. (f) The term "calendar month" means a month as designated in the calendar without regard to the number of days it may contain, and is computed by not counting days, but by looking at the calendar, and runs from a given day in one month to a day of the corresponding number in the next month, except where the last month has not so many days in which event it expires on the last day of the month. 38 Cyc. 311, 312.

James A. Finch and James A. Finch, Jr., for respondent.

(1) The respondent respectfully suggests to the court that there may be grave doubt as to this court's jurisdiction because: (a) The amount involved is within the jurisdiction of the Court of Appeals, and (b) The constitutional questions sought to be raised are no longer live questions having been passed upon by this court before the taking of the appeal in this case and the law being thus settled the questions raised are only colorable. Under such conditions this court has said it will not entertain jurisdiction. Dorroh v. Pemiscot County Bank, 248 S.W.2d 960; Little River Drainage District v. Houck, 282 Mo. 458, 222 S.W. 384. (2) All the constitutional questions raised have been passed upon by this court prior to this appeal. DeMay v. Liberty Foundry Co., 37 S.W.2d 640; Waterman v. Chicago Bridge & Iron Wks., 41 S.W.2d 575; Pruitt v. Harker, 43 S.W.2d 769. (3) The Compensation Commission's conclusions when supported by any competent evidence are binding upon the courts. Elsas v. Montgomery Elevator Co., 50 S.W.2d 130; State ex rel. Brewen-Clark Syrup Co. v. Mo. Workmen Compensation Comm., 230 Mo. 893, 8 S.W.2d 897; Jackson v. General Metals Co., 43 S.W.2d 865; Simmons v. Miss. River Fuel Co., 43 S.W.2d 868. (4) The finding that the employee was not a casual employee and that the claim for compensation was filed within the time prescribed by the act, being supported by competent evidence, are binding on the court. Cases cited under 3. (5) The appellant contends that the employment of McFall does not come under the act and relies upon the third division of Section 3303, R. S. 1929, which reads as follows: "Employments which are but casual or not incidental to the operation of the usual business of the employer." (a) A fair construction of this language would seem to imply that if the employee was engaged in some work incidental to the operation of the usual business of the employer, he would come under the act. This was held by the Kansas City Court of Appeals in Carrigan v. Western Radio Co., 44 S.W.2d 245. (b) The length of time the employee has worked is not controlling nor should it determine the question. Neb. Natl. Guard v. Morgan, 112 Neb. 432, 199 N.W. 557; Doherty v. Township, 205 Mich. 592, 172 N.W. 599; Eddington v. Tel. Co., 201 Iowa 67, 202 N.W. 374; Nedila v. Mares Auto Co., 106 Neb. 883, 184 N.W. 885; Industrial Commission v. Funk, 68 Colo. 467, 191 P. 125; Utah Copper Co. v. Industrial Commission, 193 P. 24. (6) Under Points 2 and 3, appellant contends it was a minor and not a major employer because less than ten were regularly employed in Missouri. This court has held that the test is not the number employed in Missouri but the total number of employees. Elsas v. Montgomery Elevator Co., 50 S.W.2d 133; Subdivision B, Sec. 3302, R. S. 1929. (7) The record in this case shows that the employee was injured on February 6, 1930, and was treated by a local doctor for three days, viz.; February 6th, 7th, and 8th and was taken to the hospital on February 9th, and that the bill of the doctor giving the local treatment and the hospital bill were both paid by the employer and that the claim was filed with the commission on August 7, 1930. Appellant contends that the claim was filed six months and one day after the injury, but since compensation was paid by way of medical and hospital bills and the claim was filed within six months of the time of such payment the statute is not a bar to recovery. Secs. 3311, 3337, R. S. 1929; Elsas v. Montgomery Elevator Co., 50 S.W.2d 135. (8) The Workmen's Compensation statute is to be construed liberally in favor of the injured workman. Pruitt v. harker, 43 S.W.2d 269; Rue v. Eagle Pitcher Lead Co., 38 S.W.2d 487; Betz v. Telephone Co., 224 Mo.App. 1004; Harris v. Nurseries Co., 223 Mo.App. 793.

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

OPINION

COOLEY

This is an appeal by Barton-Mansfield Company employer, from the judgment of the Circuit Court of New Madrid County affirming an award of the Workmen's Compensation Commission in favor of respondent McFall who was injured while in defendant's employment.

Barton-Mansfield Company is a Delaware corporation authorized to do and doing business in Missouri and Arkansas. It is engaged in the business of selling lumber and "building materials and supplies of all kinds." Its home office is at Jonesboro, Arkansas, where it maintains a yard. It has twenty-two yards in Arkansas and four in Missouri, one of which is located at Parma in New Madrid County where it conducts its business under the name of Parma Lumber Company. In the course of its business it sells and installs what are known as built up roofs. A built up roof can only be put on by experienced workmen. The company guarantees these roofs and the sale of such a roof includes its installation. The company keeps experienced men to do the work of installation with the assistance of inexperienced helpers and when a roof is sold the company sends experienced men from the home office to put it on. Prior to February 6, 1930, defendant, through its Parma yard or the manager thereof, sold to the public school at Parma a built up roof to be placed on a gymnasium there being built and sent from the Jonesboro office two experienced men, M. P. Moser and Lawrence Stallings, to put it on. Plaintiff, with two or three other inexperienced workmen, was employed to assist in that work. Moser employed him and the other assistants and when present was in charge of the work. When he was temporarily absent Stallings was in charge.

Plaintiff began work on the morning of...