Nagle v. Drew, 51221

• Decision Date: 13 December 1965
• Docket Number: No. 1,No. 51221,51221,1
• Citation: 396 S.W.2d 709
• Parties: Daniel K. NAGLE, Appellant, v. Monnie DREW et al., Respondents
• Court: Missouri Supreme Court

Page 709

396 S.W.2d 709

Daniel K. NAGLE, Appellant, v. Monnie DREW et al., Respondents.

No. 51221.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1965.

Mogab & Hughes, by Richard L. Hughes, St. Louis, for appellant.

David G. Dempsey, Lloyd E. Eaker, Eaker, Dempsey, Zerman & Dempsey, Clayton, for respondent, Oliver Wade.

Luke, Cunliff, Wilson, Herr & Chavaux, by Robert R. Schwarz, St. Louis, for respondent Aetna Cas. & Sur. Co.

HOUSER, Commissioner.

This workmen's compensation claim was denied by the referee. The Industrial Commission affirmed the decision of the referee. The Circuit Court affirmed the Industrial Commission's award of no compensation. Claimant has appealed from the judgment of the Circuit Court.

Appellant asserts that we have jurisdiction because the amount in dispute exceeds $15,000 on the basis that at the time of the hearing before the referee appellant had incurred medical expenses of $11,947.50 and that compensation of 'approximately $4,322.50' was then due him, at the rate of $47.50 per week.

The record must affirmatively show that an amount in excess of $15,000 is in dispute for this court to be vested with jurisdiction on that ground. Although the record shows that at the time of the hearing before the referee medical expenses in the sum of $11,947.50 had been incured it does not show, directly or indirectly, that compensation in the sum of $4,322.50 was then due claimant. Appellant's jurisdictional statement that 'Compensation due at the time of the hearing at the rate of $47.50 per week was approximately $4,322.50 (T. 12)' is not borne out by the transcript at page 12 or elsewhere.

The only pertinent testimony given by claimant Daniel K. Nagle on the subject is that he had been employed by Monnie Drew as a truckdriver and in other capacities 'for about one month * * * practically steady * * * practically every day * * * on the average three or four days a week * * * five days a week * * * [at the rate of pay of] Two and a quarter an hour.' Claimant did not testify as to the number of hours per day he worked. Apparently that varied. On cross-examination he conceded that he worked off and on and not day by day or 'steady'; sometimes only part of a day and some days, depending on weather and whether Drew had jobs, not at all. For painting he was paid $10 a day and the same amount per day 'for moving the rig.'

Monnie Drew, the alleged employer, testified that claimant Nagle was not working for him on the premises where the injury occurred on July 31, 1961 and that Nagle had not been working for him there at any time after Drew commenced work on that job on July 28, 1961. He testified that Nagle had worked for him at the rate of $2 per hour during July, 1961 on other jobs at other locations, as follows: as a truckdriver on a job on Olive Street Road for three days; as a truckdriver on Natural Bridge, for two days; and at Drew's house, doing painting work, on three...