Sayles v. Kansas City Structural Steel Co.

• Citation: 128 S.W.2d 1046,344 Mo. 756
• Decision Date: 06 June 1939
• Docket Number: 35906
• Parties: Mollie D. Sayles v. Kansas City Structural Steel Company and American Mutual Liability Insurance Company, Appellants
• Court: United States State Supreme Court of Missouri

128 S.W.2d 1046

344 Mo. 756

Mollie D. Sayles v. Kansas City Structural Steel Company and American Mutual Liability Insurance Company, Appellants

No. 35906

Supreme Court of Missouri

June 6, 1939

Appeal from Jackson Circuit Court; Hon. Darius A. Brown Judge.

Reversed and remanded (with directions) to affirm the award of the commission.

Schwartz & Schwartz for appellants; Maurice J O'Sullivan of counsel.

(1) The amount in dispute exceeds $ 7500 and this court has jurisdiction of this appeal. Sec. 3319, R. S. 1929; Edwards v. Al Fresco Advertising Co., 340 Mo. 342 100 S.W.2d 514; Shroyer v. Mo. Livestock Comm. Co., 332 Mo. 1219, 61 S.W.2d 715; Platies v. Theodorow Bakery Co., 334 Mo. 508, 66 S.W.2d 148; Hohlstein v. St. Louis Roofing Co., 328 Mo. 899, 42 S.W.2d 573. (2) On appeal the findings and award of the Commission are conclusive when the competent evidence, with the legitimate inferences therefrom resolved in favor of the award, is sufficient to support the award. Secs. 3339, 3342, R. S. 1929; Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 81; Edwards v. Al. Fresco Advertising Co., 340 Mo. 342, 100 S.W.2d 514; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 604; Cripps v. Union May Stern Co., 104 S.W.2d 684; Hendrickson v. Riss & Co., 104 S.W.2d 1047. (3) The Commission's award is conclusive on appeal because the competent evidence establishes that Sayles was employed as an assistant superintendent on a full-time pay basis for over two and a half years which would and did pay him "average annual earnings" in excess of thirty-six hundred dollars. Secs. 3305, 3320, R. S. 1929; Newman v. Rice-Stix D. G. Co., 335 Mo. 572, 73 S.W.2d 270; Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1014; Reid v. British & Irish Steam Packet Co., Ltd., 2 K. B. 330; Insurance Co. v. Dutcher, 95 U.S. 273. (4) The term "average annual earnings" is defined by the Compensation Act itself, and a construction of Section 3305 limiting it to employments where there is a definite contract for one year or more is an interpolation therein contrary to its plain language and intent, and in violation of settled principles of statutory construction. Secs. 3305, 3312, 3314, 3315, 3316, 3317, 3319, 3320, R. S. 1929; Gasconade County v. Gordon, 241 Mo. 569, 145 S.W. 1163; State v. Harris, 337 Mo. 1052, 87 S.W.2d 1029; State ex rel. Karbe v. Bader, 336 Mo. 259, 78 S.W.2d 839; State ex rel. Peck Co. v. Brown, 340 Mo. 1189, 105 S.W.2d 909; Sleyster v. Donzelot & Son, 223 Mo.App. 1166, 25 S.W.2d 148; Newman v. Rice-Stix D. G. Co., 335 Mo. 572, 73 S.W.2d 269; Russell v. Ely & Walker D. G. Co., 332 Mo. 645, 60 S.W.2d 44; Allen v. St. L.-S. F. Ry. Co., 338 Mo. 395, 90 S.W.2d 1053; Clingan v. Carthage Ice & C. S. Co., 223 Mo.App. 1064, 25 S.W.2d 1085. (5) The circuit court erred in reversing the award and in holding that under the law "as declared by the Supreme Court" (Klasing v. Contracting Co., supra) the deceased employee was an "employee" within Section 3305 because (a) the Klasing v. Contracting Company decision, was upon facts wholly dissimilar to the case at bar, (b) the construction of Section 3305 was not necessary to the determination of the matter at issue in Klasing v. Contracting Company, and was obiter dictum and furnished no binding precedent, and (c) in construing Section 3305 in Klasing v. Contracting Company, the court failed to give effect to the language used by the Legislature and the cases quoted therein as precedents are not applicable in construing said section. The Klasing v. Contracting Company decision, supra, was upon facts wholly dissimilar to the case at bar. Sec. 3305, R. S. 1929; Klasing v. Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1014; Mills v. Carthage Marble Corp., 231 Mo.App. 334, 102 S.W.2d 769. The construction of Section 3305 was not necessary to the determination of the matter at issue in Klasing v. Contracting Company, supra, and was obiter dictum and furnished no binding precedent. Sec. 3305, R. S. 1929; Klasing v. Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1014; State ex rel. Globe-Democrat Publishing Co. v. Gehner, 316 Mo. 694, 294 S.W. 1017. In construing Section 3305 in Klasing v. Contracting Co., supra, the court failed to give effect to the language used by the Legislature and the cases quoted therein as precedents are not applicable in construing said section. Sec. 3305, R. S. 1929; Klasing v. Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1014; Sec. 5758, General Laws of Vermont; Kelley's Dependents v. Hoosac Lbr. Co., 95 Vermont, 50, 113 A. 821; Livingstone Worsted Co. v. Toop, 48 R. I. 368, 138 A. 183; O'Bannon Corporation v. Walker, 46 R. I. 509, 129 A. 599; Hauter v. Coeur D'Alene Co., 39 Idaho 621, 228 P. 259.

N. R. Fisher and E. H. Gamble for respondent.

(1) This court has no jurisdiction, and the case should be transferred, as the amount in dispute is only for weekly installments terminable on the re-marriage or death of claimant and does not necessarily involve over $ 7500. R. S. 1929, secs. 1914, 3319. Pecuniary minimum must affirmatively appear. Schwyhart v. Barrett, 122 S.W. 1049; Pyle v. City, 1 S.W.2d 799; Ward v. School Dist., 7 S.W.2d 689. Denying jurisdiction where installments are for disability. Hohlstein v. St. Louis Roofing Co., 42 S.W.2d 573; Platies v. Theodorow Co., 66 S.W.2d 147; Hardt v. City Ice, etc., Co., 102 S.W.2d 592. Inconsistently upholding jurisdiction where installments are for death. Shroyer v. Mo. Comm. Co., 61 S.W.2d 713. Erroneous decisions in appeals from rulings of Public Service Commission and Compensation Commission. Macon v. Pub. Serv. Comm., 181 S.W. 396; Brocco v. May Dept. Stores, 22 S.W.2d 832; Dougherty v. Manhattan Mfg. Co., 29 S.W.2d 126; Lilly v. Moberly, etc., Co., 32 S.W.2d 1099. The above four cases overruled. State ex rel. May Dept. Stores Co. v. Haid, 38 S.W.2d 44; State ex rel. Midwest Pipe Co. v. Haid, 52 S.W.2d 183. (2) The Workmen's Compensation Act is and should be construed to extend its benefits to the largest class of employees and restrict those excluded in the smallest possible class. Klasing v. Schmitt etc. Co., 73 S.W.2d 1011; Koester Bakery v. Ihrie, 127 A. 492; Livingstone Co. v. Toop, 138 A. 183. (3) The exclusion clause of Revised Statutes 1929, section 3305, does not exclude Sayles, for two reasons: (a) The average earnings of Sayles were less than $ 3600. R. S. 1929, sec. 3305; Webster's New International Dictionary, Average. (b) Even if such earnings had exceeded $ 3600, he was not employed under an annual contract, his earnings depended wholly on how much work was given him by the employer, and at any time during the year defendant could have reduced his rate of pay or it could have laid him off or discharged him at any time without his having any recourse or redress. Schneider's Workmen's Compensation Law, sec. 34; Klasing v. Schmitt Contracting Co., 73 S.W.2d 1011; Kelley's Dependents v. Hoosac Lbr. Co., 113 A. 818; Hauter v. Coeur D'Alene Co., 228 P. 259; O'Bannon Co. v. Walker, 129 A. 599; Livingstone Worsted Co. v. Toop, 138 A. 183; Mills v. Carthage Marble Co., 102 S.W.2d 769.

OPINION

Cooley, C.

Appeal from a judgment of the Jackson County Circuit Court reversing an award of the Workmen's Compensation Commission, hereinafter called the Commission. Claimant-Respondent is the widow and sole dependent of Max S. Sayles, deceased, who was accidently killed while in the employ of Kansas City Structural Steel Company, on February 2, 1937. Appellant insurance company was the employer's insurer. Both employer and employee were operating under the Workmen's Compensation Law, if Sayles was an "employee" within the meaning of that law and it is not disputed that Sayles' death resulted from injuries received in the course of and arising out of his employment. Claimant timely filed her claim for compensation, alleging that her deceased husband's weekly wage had been $ 78. Computed on that basis according to Section 3319, Revised Statutes 1929 (Mo. Stat. Ann., p. 8254), the death benefit provided by law would be $ 15,600 to be paid in weekly installments of $ 20 each. The Commission found that Sayles' average annual earnings exceeded $ 3,600 per year and that he was not, therefore, an "employee" within the meaning of the Workmen's Compensation Law, and denied compensation for that reason. The Circuit Court reversed that "award," and ordered the cause remanded to the Commission, holding that on the undisputed facts the deceased was an employee and within the provisions of the Compensation Act. That is the only disputed issue on this appeal.

The evidence favorable to the Commission's finding tended to show the following:

Sayles began working for the employer, Kansas City Structural Steel Company, as an iron worker, about 1922. Until the latter part of June, 1934, he did not work all the time. His work is described as having been at first "intermittent," -- working only at times when the employer had work for him which was not all of the time, though most of the time. During that period he was paid by this employer only for the time he actually worked for it, and when not working for it he would occasionally work for others, as he was privileged to do. He was a competent and valuable man and said employer desired to keep him in its employ and to avail itself of his entire time and service. To that end it put him on full time basis in June, 1934, paying him thereafter $ 78 per week until his death, February 2, 1937. He received that stipulated amount regularly, whether he worked all the time or not. Mostly he did work all of the time. The plant operated continuously throughout the year and "the employer most generally was able to keep him working." After he was put on full time basis in June, 1934, ...