Morse v. Potosi Tie & Lumber Co.

• Decision Date: 07 July 1939
• Docket Number: No. 36411.,36411.
• Citation: 130 S.W.2d 477
• Parties: MORSE et al. v. POTOSI TIE & LUMBER CO. et al.
• Court: Missouri Supreme Court

130 S.W.2d 477

MORSE et al. v. POTOSI TIE & LUMBER CO. et al.

No. 36411.

Supreme Court of Missouri, Division No. 1.

July 7, 1939.

Appeal from Circuit Court, Wayne County; William R. Edgar, Judge.

Proceeding under the Workmen's Compensation Act by Clara R. Morse and others, claimants, opposed by Potosi Tie & Lumber Company, employer, and Consolidated Underwriters, insurance carrier. From a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of the employer and insurer, the claimants appeal.

Affirmed.

William H. Biggs, of St. Louis, for appellants.

Fordyce, White, Mayne, Williams & Hartman and G. Carroll Stribling, all of St. Louis, for respondents.

HYDE, Commissioner.

This is an appeal from a judgment of the Circuit Court of Wayne County affirming an award of the Workmen's Compensation Commission in favor of the employer and insurer. The Commission found that the employee, for whose death his widow and dependents sought an award of compensation in the total amount of $18,609, was excluded from the benefits of the Workmen's Compensation Act because his average annual earnings were in excess of $3600 per year.

The deceased employee Edward A. Morse commenced work with the Potosi Tie and Lumber Company July 1, 1924. He was killed in an automobile accident October 31, 1936. Although not a stockholder, he was elected, in 1924, to be a vice-president of the Company, by its board of directors, and was put in charge of production of railroad ties. He was reelected annually to serve until the next annual meeting or until his successor should be elected and qualified. Morse received an annual salary of $8000 or more ($12,000 1927-1929) from 1925 to 1929. From 1930 to 1933, he had no fixed salary, but after 1933 his salary was fixed by the board of directors at $400 per month on a month to month basis. He was actually paid $400 per month or more during each and all of those years after 1929. Substantial amounts in excess of $400 were also paid to him each year as a bonus. He was actually paid in 1936, prior to his death, $5400.

Appellants' brief contains no assignments of error but, from the points and authorities therein, it appears that appellants' claim is that Morse must be held to be under the act because "the excluding provision of Section 3305, R.S.1929 [Mo. St.Ann. § 3305, p. 8238], pertains only to those persons whose earnings under an annual or longer term contract exceed three thousand six hundred dollars per year." Appellants say that no person on a month to month salary basis is excluded (regardless of the amount received) and rely upon Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1011. It was not necessary to base the decision in the Klasing case on such grounds, because the employee therein had worked exclusively for the same employer for "four or five years" and the average of his annual earnings shown was much less than $3600. Although during the year in which he was injured (on December 27) he had earned $3642.25, he had not earned even as much as $3000 in any other previous year. Insofar as broad statements in the Klasing case are susceptible of such a construction, as contended for herein, it has been expressly overruled by this court en Banc. State ex rel. Mills v. Allen, Mo.Sup., 128 S.W.2d 1040, decided...