Moyer v. Orek Coal & Mining Co.

• Decision Date: 13 May 1935
• Docket Number: No. 18384.,18384.
• Citation: 82 S.W.2d 924
• Court: Missouri Court of Appeals
• Parties: JOE MOYER ET AL., RESPONDENTS, v. OREK COAL & MINING CO., APPELLANT.

82 S.W.2d 924

JOE MOYER ET AL., RESPONDENTS, v. OREK COAL & MINING CO., APPELLANT.

No. 18384.

Kansas City Court of Appeals. Missouri.

May 13, 1935.

Appeal from Circuit Court of Adair County. — Hon. Harry Rouse, Judge.

REVERSED AND REMANDED.

Philip J. Fowler and W.E. Shirley for respondent.

Sam H. Ellison for appellant.

SHAIN, P.J.

This action arises out of an award made by the Missouri Workmen's Compensation Commission.

The petitioners for compensation are the father and mother of Basil Moyer, now deceased, who was a minor of the age of twenty years, one month and three days at the time of his death.

The claim for compensation is against the Orek Coal Company, a corporation.

It appears that the aforesaid corporation operated a coal mine in Adair County, Missouri, and that Basil Moyer, deceased, was an employee of said company in the capacity of shot firer in the company's mines.

The following stipulation was had in the hearing before the commission:

"It is hereby stipulated and agreed by and between the parties hereto that Basil Moyer was employed by the Orek Coal Company, incorporated on or about February 1, 1932; that the employee had not rejected the act and that the employer had over ten men in its employment and had not rejected the act; that the employer did not carry compensation insurance. It is agreed that the employer had notice of the alleged accident occurring on or about February 1, 1932, and that the dependent's claim for compensation was filed within the time prescribed by law. It is further agreed that the average wage of the employee is $12.96, which is based upon a daily wage of $3.37 for a two-hundred-day year, this being a seasonable employment and operating for a period of less than two hundred days. It is further agreed that the employee died on February 1, 1932."

It appears from the evidence that a miner prepared shots for blasting out the coal. In so preparing, the miner drills a hole into the coal, this hole is tamped with powder and a fuse is so placed that a part of it hangs out; the other end being in contact with the powder. After this work is done, the shot firers go around and fire the shots.

On February 1, 1932, Basil Moyer and one Ed White proceeded in the work of firing shots. In the last room there were four shots to be fired. Three of the shots were fired. One shot Basil Moyer could not get to ignite on account of a damp fuse. The two shot firers left the room and the three fired shots exploded. After the three shots had exploded, Basil Moyer went back toward the room to fire the shot that had failed. When Moyer got within a short distance of the failed shot, he fell, overcome by the fumes. His companion attempted to rescue him but being himself affected by the fumes himself failed and went for help. Before help came, Moyer was so overcome that he died.

The commission made findings of fact and rulings of law as follows:

FINDINGS OF FACTS AND RULING OF LAW.

"It is admitted that the employer was a major employer and had not rejected the act. Under section 3300, Revised Statutes 1919, the employer is conclusively presumed to have elected to accept the provisions of the act. Employee had not rejected the act.

"I find from the evidence that employee's death was the result of an accident arising out of and in the course of his employment. That employer had notice of the injury and death and dependents' claim was filed in time as prescribed by law. [Sections 3336 and 3337, Revised Statutes 1929.]

"I further find that employee's parents, Joe Moyer and Dora E. Moyer, were partially dependent for support upon his wages at the time of the injury. That he contributed all his earnings to them and therefore they are entitled to the total death benefit. [Triola v. Western Union Tel. Co., 25 S.W. (2d) 518.]

"The employer had not insured its liability under the compensation law and had not been authorized by the commission to carry its own liability. Under the provisions of section 3323, Revised Statutes 1929, the compensation awarded is commuted and payable immediately.

"28. Dated March 11, 1932.

"29. Made by

                       "[Signed]. CHARLES F. LUKE, Referee
                             Missouri Workmen's
                             Compensation Commission
                

"30. A true copy. Attest:

"(Seal) "(Signed) WM. T. FINDLY, SECY."

A review was had before the commission which resulted in affirming the award of March 11th, aforesaid.

Orek Coal Company appealed from the award to the Circuit Court of Adair County, Missouri. In the hearing, on appeal, the award made by the commission was affirmed.

From the judgment of the Circuit Court of Adair County, Missouri, affirming the award of the commission, the Orek Coal Company duly appealed.

The appeal was allowed to the Supreme Court of Missouri on claim that constitutional question was involved. The Supreme Court held that no constitutional question was raised by appellant's presentation and the cause comes to us by mandate of the Supreme Court.

Outside of a constitutional question, the appellant makes assignment of error as follows:

"I.

"Both the commission and the court erred in deciding that the claimants are dependents of Basil Moyer:

"A. There is no substantial evidence on which to base the finding.

"B. There is no substantial evidence that Basil Moyer contributed any sum to claimants' support, and therefore, there is nothing on which to base a finding that he did, or that any contributions were necessary.

"II.

"There is no evidence to sustain a finding that Basil Moyer was an employee of appellant at the time of his death, because:

"A. The evidence shows that he was an independent contractor.

"B. Because, at the time of his injury he was not engaged in any service for appellant, nor in any duty pertaining to his employment.

"C. Because he was acting in violation of the above statute; the express command of appellant; the rules of the company, the custom and practice of the business. All of these were mandatory on Moyer.

"D. Because Moyer was undertaking to do a thing which he was prohibited from doing, and which was the job of another workman engaged in an entirely different class of work.

"III. "Basil Moyer did not die as the result of an accident, because:

"1. His injury was not the result of an unexpected or unforeseen event happening suddenly and violently.

"IV. "Because the evidence shows that Basil Moyer expected to, and knew he would, be injured, and there is no presumption to the contrary which would overcome this positive proof."

OPINION.

The assignments of error made by the appellant, herein, are in exact analogy with a demurrer offered at the close of all the evidence in a cause tried by court and jury in the circuit court. As to matters of fact, we are bound by the finding of the commission, if same is based on any substantial testimony. As to matters of law, we exercise the same powers of final decision as occurs in an ordinary appeal.

As to the rulings of law of the commission, supra, we conclude that the commission's ruling to the effect the employer, appellant herein, is conclusively presumed to have elected to accept the provisions of the Workmen's Compensation Act, is correct. Further, it stands admitted that the employer had due notice of injury and death; further that the claim was filed in due time.

It further stands undisputed that the employer had not insured its liability and had not been authorized to carry its own liability. We further conclude that by virtue of the provisions of section 3323, Revised Statutes 1929, that compensation, if any due, is commuted and payable immediately.

Having found no error in the rulings of law by the commission, we proceed to consider findings of fact.

Incident to the issue of fact as to dependence, section 3319, Revised Statutes 1929, specifically provides where an employee, who leaves no dependents, the compensation is limited to medical, surgical, hospital, nursing, ambulance, medicines and burial expenses as limited by the statute.

The appellant makes statement of conclusion to the effect that there is no substantial evidence upon which to base a finding that the claimants are or were dependents upon Basil Moyer, deceased. This conclusion is followed by citation of section 3319, supra, and Holliday v. Walls et al., 64 S.W. (2d) 318, and other court cases. These citations are only conclusive of the law and we must look to the record to determine as to whether there is substantial evidence to support the finding of the commission.

Where supported by substantial evidence, the finding of the commission is conclusive on this court. [Holliday v. Walls et al., supra.]

The father, mother and other witnesses testified that the money earned by the deceased went into the general family fund. Contributing to this fund and sharing in the fruits of same was not only the deceased but the father and a son by the name of Kenneth, who was over the age of twenty-one.

It appears that all lived together on a rented farm and the combined wages of the father, Basil and Kenneth was turned over to the mother and used by her for general purposes, incidents to general expenses for all the family and for the general overhead in running the farm; the surplus was invested in purchase of stock for the farm. It appears that a minor son, Hershel, did not work out for hire but that his duties were to do farm work.

Concerning these family earnings, Joe Moyer, the father, on cross-examination was asked and answered questions as follows:

"Q. And the money that all of you earned went into this stock? A. No — Yes, we just had one pocketbook and we lived there.

"Q. Over and above your living money went into the buying of stock and things of that sort? A. Yes."

Concerning the joint earnings, Mrs. Joe Moyer, the mother, was asked and answered questions as follows:

"Q. And with that money you paid living expenses and if there was anything left over you bought stock and used — A. And paid debts and used it...