Russell v. Ely & Walker Dry Goods Co.

Decision Date20 April 1933
Docket Number32364
Citation60 S.W.2d 44,332 Mo. 645
PartiesBessie T. Russell v. Ely & Walker Dry Goods Company, a Corporation, and American Mutual Liability Insurance Company, a Corporation, Appellants
CourtMissouri Supreme Court

Appeal from Cooper Circuit Court; Hon. Walter S. Stillwell Judge.

Affirmed and remanded (with directions).

Wm R. Schneider and J. J. Cooney for appellants.

(1) The award of the commission was based upon findings of fact adequately supported by the record. Such findings have the force and effect of a jury verdict and are conclusive and binding upon the courts on appeal and no other award or decision should be based thereon than that rendered by the commission, and the court erred in setting it aside and remanding the cause. Woods v. American Coal & Ice Co., 25 S.W.2d 144; Smith v. Levis-Zukoski Mercantile Co., 14 S.W.2d 470; Hager v Pulitzer, 17 S.W.2d 578; Kinder v. Hannibal Co., 18 S.W.2d 91; Waring v. Met. Life Ins. Co., 39 S.W.2d 418; Brewer v. Ash Grove Lime & Portland Cement Co., 223 Mo.App. 983, 25 S.W.2d 1086; De Moss v. Evens Fire Brick Co., 37 S.W.2d 961; Rue v. Eagle Picher Lead Co., 38 S.W.2d 487; Harbour v. Gardner, 38 S.W.2d 295; Rolens v. Keller Const. Co., 24 S.W.2d 1077; Miller v. St. Joseph Transfer Co., 32 S.W.2d 449; Bricker v. Gille Mfg. Co., 35 S.W.2d 662; Glaze v. Hart, 36 S.W.2d 684; Hammack v. West Plains Lumber Co., 30 S.W.2d 650; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601. (2) Bonuses, board, room, commissions and gratuities, all taken together, constitute the employee's total wages. Sec. 3320, R. S. 1929; O'Callahan v. Dermedy, 197 Iowa 639, 196 N.W. 10; Kadison v. Gottlieb, 233 N.Y.S. 485; Ciarla v. Solvay Process Co., 184 A.D. 629; Gray v. Richards, 113 A. 9; Chestnut and Smith v. Lynch, 84 Okla. 199, 202 P. 1018. (3) In adopting a statute of another state there is a presumption we also adopt the construction placed upon it by the courts of that state. State ex rel. Westhues v. Sullivan, 224 S.W. 327; Stegall v. Sloss-Sheffield Steel & Iron Co., 87 So. 787; Bosquet v. Howe Scale Co., 96 Vt. 364, 120 A. 171. (4) The burden is upon the party alleging fraud to prove it. Price v. Kansas City P. S. Co., 42 S.W.2d 54.

Thomas J. Brown, Chase Morsey and Dearmont, Spradling & Dalton for respondent.

(1) Findings of fact by the commission stand on the same footing as the verdict of the jury or the findings by the trial court sitting without a jury. Bricker v. Gille Mfg. Co., 35 S.W.2d 664. (2) Only when the commission's findings of fact are based on conflicting evidence are they conclusive on appeal. Where there is no essential conflict in the evidence and the case is virtually one of admitted facts, tantamount to a special verdict, the proper judgment to be rendered is a mere legal conclusion from the facts, and if the decision of the court is wrong, it is error of law, which may be reviewed. State ex rel. Wenneker v. Cummings, 151 Mo. 57; Cox v. Sloan, 158 Mo. 429; Gambs v. Life Ins. Co., 50 Mo. 47; Hays v. Bankers Life Co., 231 S.W. 1037; General Electric Co. v. Electric Co., 204 S.W. 934; Eckle v. Ryland, 256 Mo. 438; U. S. F. & G. Co. v. Wyer, 60 F.2d 856. (3) Where an action at law is tried by the court without a jury the court's construction of a written contract is not binding on the appellate court, even though such construction was in the form of a special finding, for the question might not have been submitted to a jury. Idalia Realty Co. v. Railway Co., 219 S.W. 929. (4) At the time of his death on June 9, 1931, John G. Russell was an employee of the Ely & Walker Dry Goods Company, unless his "average annual earnings" exceeded $ 3,600. R. S. 1929, sec. 3305. (5) The Workmen's Compensation Law does not prescribe any method for determining "average annual earnings" for the purpose of fixing or determining whether or not the commission has jurisdiction. It does prescribe definite methods for determining annual earnings as a basis for computing compensation. R. S. 1929, sec. 3320. (6) The only employees excluded from the act under paragraph A, Section 3305, are those working under a contract the definite term of which is one full year or more, and at a determined or determinable wage amounting to more than $ 3,600; and all other employees, regardless of the total amount earned, are within the act. Kelly's Dependents v. Hoosack Lbr. Co., 113 A. 821; Obannon Corp. v. Walker, 129 A. 599; Livingston Worsted Co. v. Troop, 138 A. 183. (7) The law should be construed in its broader sense and not unnecessarily restricted by a technical construction. R. S. 1919, sec. 3374; Drecksmith v. Universal, 18 S.W.2d 86; Koester Bakery v. Ihrie, 125 A. 492; Hauter v. Mining Co., 228 P. 259; Taglinette v. Sidney Worsted Co., 105 A. 641; Obannon Corp. v. Walker, 129 A. 599; Livingston Worsted Co. v. Troop, 138 A. 183. (8) It has been held that the clause limiting the jurisdiction of the commission to employees whose salary, wages or earnings are over a certain amount, applies only to employees and does not apply to cases of death, where dependents of employees are the claimants. Mayor, etc., of Jersey City v. Borst, 101 A. 1033; Plumstead v. Roxsburry Township, 151 A. 489; 1 Schneider's Workmen's Compensation Law (2 Ed.) sec. 34, p. 269. (9) The amount of salary to be paid John G. Russell was fixed by the contract of employment at $ 300 per month. At the time the employment ceased the said John G. Russell could not have recovered any additional compensation. 13 C. J. 634, sec. 704; Blaine v. Knapp, 140 Mo. 241. (10) The right to compensation accrued at the time of employee's death and prior to the voluntary action of employer's executive committee in paying to the widow additional moneys. Employer is entitled to credit, upon compensation due, for any payment made after employee's injury or death. R. S. 1929, sec. 3312, par. (c). (11) The payroll of employer showed employee's salary to be $ 300 per month. The presumption is that the wages received by an employee in a particular employment are shown by the payroll. King's case, 125 N.E. 154. (12) Payment to widow was not a legal discharge of any liability of employer to employee or his estate. 23 C. J. 1194, par. 439. (13) Only the value of gratuities customarily received by the employee in the usual course of business from persons other than the employer can be computed in determining the annual earnings of the employee, and no sums received by the employee to cover any special expense entailed on him by the nature of his employment shall be included in the computation. R. S. 1929, sec. 3320, par. (g). (14) The commission has jurisdiction in this case because the "average annual earnings" of John G. Russell, when computed under the law, did not exceed $ 3,600, and any doubt upon this point should be resolved in favor of the employee or his dependents. Betz v. Columbia Tel. Co., 24 S.W.2d 225; Shout v. Gunite Concrete & Const. Co., 41 S.W.2d 629. (15) When an employee comes within the terms of the Workmen's Compensation Law he gives up a substantial consideration for the limited compensation assured, and a liberal construction should be given the law. Howes v. Nurseries Co., 22 S.W.2d 839; Drecksmith v. Universal Car Loading & Distributing Co., 18 S.W.2d 86.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION
FITZSIMMONS

This is an action under the Missouri Workmen's Compensation Law. It was stipulated that John C. Russell lost his life in an automobile accident in Cooper County Missouri, on June 9, 1931, while he was in the service of appellant, Ely & Walker Dry Goods Company as a traveling salesman and that the accident arose out of and in the course of his employment.

Section 3305, Revised Statutes 1929, provides that the word "employee" as used in the Workmen's Compensation Law "shall not include persons whose average annual earnings exceed $ 3,600." The Workmen's Compensation Commission in its final award held that Mr. Russell's total earnings were $ 3,900 per year and therefore that he was not an employee within the meaning of Section 3305(a), Revised Statutes 1929, and there was no liability of the employer and the insurer under the Compensation Law. The dependent widow appealed to the Circuit Court of Cooper County, which court, by its judgment, reversed the award of the commission for the reason that the facts found by the commission did not support the award and that there is not sufficient competent evidence in the record to warrant the making of the award. The judgment of the circuit court accordingly remanded the cause to the commission with directions to enter an award of compensation in favor of the respondent in the amount provided by law. From this judgment of the circuit court the employer and the insurer appealed to this court. The total value of compensation claimed by respondent fixes our jurisdiction. The testimony upon the issue of the earnings of Mr. Russell was given by officers of appellant Ely & Walker Dry Goods Company and is not disputed. The finding of facts and rulings of law of the Workmen's Compensation Commission present the matters for our decision in the following narrative:

"The deceased had worked for Ely & Walker some years prior to 1931 and after having left their employ in 1925 he resumed work for them on January 1, 1931. The contract of employment was made with James H. Jones, sales manager, and, according to Mr. Jones' testimony, the contract was briefly as follows: Mr. Russell was to have a drawing account of $ 300 per month commencing January 1, 1931; was to have part charge of one of their selling divisions, and was to receive such extra compensation, depending on the results in his division as might be decided by the executive committee. This contract was not in writing, but...

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