Robinson v. Martin Wunderlich Const. Co.

• Decision Date: 05 June 1934
• Docket Number: No. 23158.,23158.
• Citation: 72 S.W.2d 127
• Court: Missouri Court of Appeals
• Parties: ROBINSON et al. v. MARTIN WUNDERLICH CONST. CO. et al.

72 S.W.2d 127

ROBINSON et al. v. MARTIN WUNDERLICH CONST. CO. et al.

No. 23158.

St. Louis Court of Appeals. Missouri.

June 5, 1934.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Act by Mary Robinson and another, claimants and dependents of Norman Richards, deceased, for decedent's death, opposed by the Martin Wunderlich Construction Company, and the Century Indemnity Company. From an order overruling their motion to vacate judgment affirming a final award of compensation, employer and insurer appeal.

Affirmed.

T. P. Hukriede, of Union, and Stout & Spencer, of St. Louis, for appellants.

Davis & Damron, of Fredericktown, for respondents.

BENNICK, Commissioner.

This is a proceeding under the Workmen's Compensation Act (sections 3299-3376, R. S. 1929 [Mo. St. Ann. §§ 3299-3376, pp. 8229-8294]). The appeal is by the employer and insurer from the order of the circuit court overruling their motion to vacate and set aside its judgment which was entered at the preceding term, said judgment being one affirming the final award of the commission in favor of the claimants.

The claim was for the death benefit provided by the act, having been prosecuted by Mary Robinson and A. B. Robinson, grandmother and stepgrandfather, respectively, of Norman Richards, the deceased employee, who was killed on September 2, 1932, by accident arising out of and in the course of his employment with the Martin Wunderlich Construction Company, which was engaged at the time in highway construction work in Franklin county. The deceased was a minor, 17 years of age at the time of his death, and had been in the employ of the construction company for only a very few days when his fatal injury was received.

Claim was presented in due course, to which an answer was filed by the employer and insurer putting each and every allegation in the claim at issue. However, at the opening of the hearing before Referee Luke of the commission, many of the facts were stipulated by the parties, and the case was fought out upon the questions of the dependency of the claimants and the calculation of the death benefit.

On February 14, 1933, the referee entered an award in favor of the claimants, awarding the sum of $150 for burial expenses, and a death benefit of $7.69 a week for 300 weeks, subject to an attorney's lien in favor of claimants' attorneys of $314.38. The referee specifically found that the claimants had been total dependents of the deceased. For the purpose of computing the death benefit in accordance with the mode prescribed by sections 3319 and 3320 of the statute, Mo. St. Ann. §§ 3319, 3320, pp. 8254, 8258, the referee found that the sum of $2 was the usual daily wage paid those who were regularly employed in the kind of work the deceased was engaged in when killed, and that the particular employment operated substantially throughout the entire year. Consequently the case was brought by such finding within the purview of section 3320 (d), of the statute, Mo. St. Ann. § 3320 (d), p. 8258, providing that, in employments in which it is the custom to operate throughout the working days of the year, the annual earnings, if not otherwise determinable, shall be regarded as 300 times the average daily earnings; and the award was therefore computed accordingly.

Within due time thereafter the employer and insurer filed their application for a review before the full commission, calling the commission's particular attention to the finding of the referee upon the question of dependency. Quite inconsistent with their present contention, no criticism of the manner of the computation of the award was contained in the application for review. The claim was submitted on review; and on May 22, 1933, the full commission entered its final award, affirming the prior award of the referee.

Thereafter the employer and insurer appealed in due course to the circuit court of Franklin county, wherein, at the August, 1933, term of court, the award was again affirmed. The August term ended without any attack having been made upon said judgment or an appeal taken therefrom; and at the next succeeding or November term of court the employer and insurer filed their motion to vacate and set aside the judgment upon the following grounds:

"1. Because the record of this case upon its face shows that the compensation awarded was not computed according to the laws of the State of Missouri relating to workmen's compensation, and contrary to paragraph b of section 3319, Revised Statutes of Missouri, 1929 [Mo. St. Ann. § 3319, par. b, p. 8254].

"2. Because the record of this case shows upon its face that the deceased, Norman Richards, was not directly employed by the defendant, Martin Wunderlich Construction Company, and that the said award and judgment was rendered against the said defendant without a finding as to whether or not the said Norman Richards was insured by the intermediate employer as required by paragraph d of section 3308, Revised Statutes of Missouri 1929 [Mo. St. Ann. § 3308, par. d, p. 8242].

"3. Because the record of this case shows upon its face that the award and the judgment rendered thereon was erroneous in that the compensation was computed contrary to section 3320 of the Revised Statutes of Missouri, 1929 [Mo. St. Ann. § 3320, p. 8258]."

What the employer and insurer were actually complaining about (disregarding the second ground of the motion which is no longer adverted to) was the commission's finding that the claimants had been total dependents of the deceased, together with the finding that the employment was one which operated throughout the working days of the year. It was their contention, not only that there was no proof of total dependency, but in fact that the claimants could not be classed as dependents of any character within the meaning of the act because of the absence of any legal duty on the part of deceased to have supported them, and that, if a death benefit was to be allowed, it should have been computed on the basis of a working year of only 200 rather than 300 days; their view of the evidence being that it had disclosed an employment in which it was the custom to operate for a part only of the whole number of working days in each year.

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