Richardson v. Consolidated Products Co.

• Decision Date: 14 November 1944
• Docket Number: No. 26646.,26646.
• Citation: 183 S.W.2d 393
• Parties: SAM RICHARDSON, EMPLOYEE, RESPONDENT, v. CONSOLIDATED PRODUCTS COMPANY, EMPLOYER, TRAVELERS INSURANCE COMPANY, INSURER, APPELLANTS.
• Court: Missouri Court of Appeals

183 S.W.2d 393

SAM RICHARDSON, EMPLOYEE, RESPONDENT, v. CONSOLIDATED PRODUCTS COMPANY, EMPLOYER, TRAVELERS INSURANCE COMPANY, INSURER, APPELLANTS.

No. 26646.

St. Louis Court of Appeals. Missouri.

Opinion filed November 14, 1944.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Ernest F. Oakley, Judge.

REVERSED AND REMANDED (with directions).

Jones, Hocker, Gladney & Grand and Orville Richardson for appellants.

In disregarding the undisputed evidence and the admissions of the claimant, the Commission acted without or in excess of its powers and without sufficient substantial evidence to support the award, and its award is reviewable on appeal. Horrell v. Chase Hotel, Inc. (Mo. App.), 174 S.W. (2d) 881; R.S. Mo. 1939, sec. 3764. The rule of "liberal construction" does not shift the burden of proof, or permit inferences to be drawn in the face of the evidence, or permit the Commission or court under the guise of construction to substitute their judgment for that of the Legislature. Sayles v. K.C. Structural Steel Co., 344 Mo. 756, 128 S.W. (2d) 1046, 1054; Schmitz v. Carr-Trombley Mfg. Co. (Mo. App.), 139 S.W. (2d) 1064, 1066; Crevoisour v. Hendrix (Mo. App.), 136 S.W. (2d) 404, 410; Snorgrass v. Cudahy Packing Co., 229 Mo. App. 944, 83 S.W. (2d) 226, 228; Moscicki v. American Car Foundry Co. (Mo. App.), 103 S.W. (2d) 491, 494; Reed v. K.C. Wholesale Grocery Co. (Mo. App.), 156 S.W. (2d) 747, 753. (1) There was no substantial evidence that the claimant's grade of employment changed on August 25, 1941. A temporary increase in the amount of work to be done does not constitute a change of grade, especially where, as here, the employee and employer agreed that such increased work would last for only one week, ending two days before the accident. Buckley v. Elmira Coal Co. (Mo. App.), 104 S.W. (2d) 724; Lamker v. Schiller (Mo. App.), 166 S.W. (2d) 246; Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 142 S.W. (2d) 866, 869; Ropp v. Moon Bros. Mfg. Co. (Mo. App.), 44 S.W. (2d) 888; 71 C.J. 808. Compare cases of permanent change of grade, i.e., change of character of work, duties, rate of pay, etc. Mossman v. Chi. & So. Air Lines (Mo. App.), 153 S.W. (2d) 799; Biswell v. St. Louis-San Francisco Ry. Co. (Mo. App.), 49 S.W. (2d) 203; Sayles v. K.C. Structural Steel Co., 344 Mo. 756, 128 S.W. (2d) 1046, 1053. (2) All of the evidence and claimant's own admissions conclusively showed that in any event the employee agreed to and actually did resume his former, usual, regular, principal job of part-time fireman for the week in which he was injured. That week began on Sunday, August 31, 1941. He was injured on Monday, September 1, 1941. (3) Even if his grade changed on August 25th, and was not changed back before September 1st, the "average annual earnings" under section 3706 should not be computed upon one week's work in a job understood by both employer and employee to be temporary, there being no increase in the rate of pay or change in the kind or character of work done. The employee was merely temporarily allowed to put in more hours for one week. Ropp v. Moon Bros. Mfg. Co. (Mo. App.), 44 S.W. (2d) 888; Industrial Comm. v. Employers Mut. Ins. Co., 76 Colo. 145, 230 Pac. 114; R.S. Mo. 1939, secs. 3706, 3710 (a); 71 C.J. 808. (4) The only proper method of computing the compensation rate in this case is by finding the "average annual earnings" as prescribed in section 3706. These may be ascertained by averaging the seven years of earnings of the employee in his usual, regular and principal job of part-time firemen. In absence of such evidence, the actual earnings of the employee in that job for the year before his injury should be used. R.S. Mo. 1939, secs. 3706, 3710(a). (a) The word "average" implies the use of more than one year in striking the average. Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 73 S.W. (2d) 1011; Werner v. Pioneer Cooperage Co. (Mo. App.), 155 S.W. (2d) 319; Fear v. Ebony Paint Mfg. Co. (Mo. App.), 181 S.W. (2d) 559. (b) The average daily, weekly and annual wage should be computed with reference to the work available for and actually performed by the employee. This rule is uniformly followed in seasonal employments and in differentiating between work in separate grades and departments. Buckley v. Elmira Coal Co. (Mo. App.), 104 S.W. (2d) 724; Burgstrand v. Crowe Coal Co., 333 Mo. 43, 62 S.W. (2d) 406; Lamkins v. Copper-Clad Malleable Range Corp. (Mo. App.), 42 S.W. (2d) 941; Travelers Ins. Co. v. Davis (Mo. App.), 42 S.W. (2d) 945; Bietsch v. Midwest Piping & Supply Co. (Mo. App.), 86 S.W. (2d) 187; Biswell v. St. Louis-San Fran. Ry. Co. (Mo. App.), 49 S.W. (2d) 203. As to differences in grades, see: Mossman v. Chi. & So. Air Lines (Mo. App.), 153 S.W. (2d) 799; Werner v. Pioneer Cooperage Co. (Mo. App.), 155 S.W. (2d) 319; Lamker v. Schiller (Mo. App.), 136 S.W. (2d) 371. (c) There is a definite and separate grade of employment known as a part-time fireman. The Commission so found. The earnings from that grade should be computed in ascertaining the average annual earnings of the employee, since that was the employee's usual, regular and principal work. Such a computation is required by statute, reflects the actual earnings of the employee, his ability, opportunity and ambition to work, and is directly correlated with insurance premiums which are based on pay roll. Fear v. Ebony Paint Mfg. Co. (Mo. App.), 181 S.W. (2d) 559; In re Rice, 229 Mass. 325, 118 N.E. 674; King's Case (Mass.), 125 N.E. 153; Marvin's Case, 234 Mass. 145, 125 N.E. 154; Ethier's Case, 286 Mass. 139, 189 N.E. 807; Hight v. York Mfg. Co., 116 Me. 81, 100 Atl. 9; Littler v. Geo. A. Fuller Co., 223 N.Y. 369, 119 N.E. 554; Barlog v. Bd. of Water Com'rs, 239 App. Div. 225, 267 N.Y.S. 822; American Tank & Equipment Co. v. Gray, 167 Okla. 494, 30 Pac. (2d) 901; Oklahoma City v. Arnold (Okla.), 25 Pac. (2d) 651; Durrett v. Unemployment Relief Committee (La. App.), 152 So. 138; Carr's, Inc., v. Industrial Comm. (Wis.), 290 N.W. 174; State Road Comm. v. Indust. Comm., 56 Utah, 9, 190 Pac. 544; Flynn v. Carson (Idaho), 243 Pac. 818; Johnsen v. Benson Food Center (Neb.), 9 N.W. (2d) 749; Andrew F. Mahony Co. v. Marshall (D.C., Wash.), 46 F. (2d) 539.

Albert I. Graff and Ben Tepper for respondent.

(1) There was a definite change in the grade of employment from an extra laborer to that of a fireman on August 25, 1941. The employer's report of the accident prepared and filed with the Commission in this case by the employer states that the injured was employed as a "fireman" at the time of the accident. Mossman v. Chi. & So. Air Lines, 236 Mo. App. 282, 153 S.W. (2d) 799, 801; Sayles v. K.C. Structural Steel Co., 344 Mo. 756, 128 S.W. (2d) 1046, 1053. (2) In computing the average weekly wage in a case of permanent total disability, Section 3710, R.S. Mo. 1939, should be considered. Renfro v. Pittsburgh Plate Glass Co., 235 Mo. App. 226, 130 S.W. (2d) 165, 170. (a) In ascertaining whether the "average annual earnings" exceeded $3600 so as to preclude an employee from receiving benefits under the act, Section 3710, R.S. Mo. 1939, was read in conjunction with Section 3695, R.S. Mo. 1939. Mossman v. Chi. & So. Air Lines, 236 Mo. App. 282, 153 S.W. (2d) 799, 801; Sayles v. K.C. Structural Steel Co., 344 Mo. 756, 128 S.W. (2d) 1046, 1053. (b) "Average annual earnings" could only be construed to mean the average of the annual earnings of the employee. Annual earnings is defined in Section 3710 (a), R.S. Mo. 1939, and provides the earnings "in the employment of the same employer continuously during the year next preceding the injury," and "employment by the same employer shall be taken to mean employment by the same employer in the grade in which the employee was employed at the time of the accident uninterrupted by absence from work due to illness or any other unavoidable cause." Therefore, in determining the "annual earnings," it must be first ascertained whether or not there was a change in the grade of the employment at the time of the accident, and whether the employment was continuous and not interrupted for any unavoidable cause. Secs. 3710 (a) and (b), R.S. Mo. 1939; Coble v. Scullin Steel Co. (Mo. App.), 54 S.W. (2d) 277; Bicanic v. Kroger Grocer & Baking Co. (Mo. App.), 117 S.W. (2d) 650. (3) The Commission correctly ruled that there was a change in the grade of the injured's employment prior to his accident, and computed the average weekly wage under Section 3710 (d), R.S. Mo. 1939. Therefore, inasmuch as the change in the grade of employment took place the week before the accident, the Commission could only consider the earnings after the change in the grade of work, and apply section 3710 (d). Sec. 3710 (d), R.S. Mo. 1939; Mossman v. Chi. & So. Air Lines, 236 Mo. App. 282, 153 S.W. (2d) 799; Jackson v. Curtiss-Wright Airplane Co., 334 Mo. 805, 68 S.W. (2d) 715; Bicanic v. Kroger Grocer & Baking Co. (Mo. App.), 117 S.W. (2d) 650; Hartman v. Union Electric Co., 331 Mo. 230, 53 S.W. (2d) 650; Coble v. Scullin Steel Co. (Mo. App.), 54 S.W. (2d) 777. (4) The entire Compensation Act must be construed as a whole, and it must be given a broad and liberal construction. Coble v. Scullin Steel Co. (Mo. App.), 54 S.W. (2d) 777, 779; Johnson v. Kruckmeyer, 224 Mo. App. 351, 29 S.W. (2d) 730; Pruitt v. Harker, 328 Mo. 1200, 43 S.W. (2d) 769; Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W. (2d) 620, 622; Caldwell v. Melbourne Hotel Co., 235 Mo. App. 175, 116 S.W. (2d) 232, 239; Maddux v. K.C. Public Service Co. (Mo. App.), 100 S.W. (2d) 535, 540.

HUGHES, P.J.

The appeal is by the employer and its insurer from a judgment of the Circuit Court of the City of St. Louis affirming a final award of the Workmen's Compensation Commission in favor of the employee. The employee, Sam Richardson, was totally and permanently disabled as the result of injuries sustained when a steam boiler exploded. The accident occurred at about 12:30...