Schmelzle v. Ste. Genevieve Lime & Quarry Co.

• Decision Date: 07 April 1931
• Docket Number: No. 21446.,21446.
• Parties: SCHMELZLE et al. v. STE. GENEVIEVE LIME & QUARRY CO. et al.
• Court: Missouri Court of Appeals

37 S.W.2d 482

SCHMELZLE et al. v. STE. GENEVIEVE LIME & QUARRY CO. et al.

No. 21446.

St. Louis Court of Appeals. Missouri.

April 7, 1931.

Rehearing Denied April 21, 1931.

Appeal from Circuit Court, Ste. Genevieve County; B. H. Boyer, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Frank Schmelzle and others, claimants, for the death of Edwin B. Schmelzle opposed by the Ste. Genevieve Lime & Quarry Company, employer, and the Ocean Accident & Guarantee Corporation, Limited, insurer. From the judgment of the circuit court affirming an order of the Workmen's Compensation Commission granting an award, employer and insurer appeal.

Affirmed.

Holland, Lashly & Donnell and H. C. Ackert, all of St. Louis, for appellants.

Peter H. Huck, of Ste. Genevieve, for respondents.

BENNICK, C.

This is an appeal from the judgment of the circuit court of Ste. Genevieve county, affirming an award of the Workmen's Compensation Commission.

On August 5, 1929, Edwin B. Schmelzle, an employee of Ste. Genevieve Lime & Quarry Company, met his death by accident arising out of and in the course of his employment, and in due time thereafter claim for compensation was made by the several claimants herein as partial dependents. A hearing was had before a referee appointed by the commission, and on March 6, 1930, an award was entered, awarding to the claimants the sum of $150 for funeral expenses, and the sum of $3.20 a week for 300 weeks for death benefit, which latter amount was made payable in the lump sum of $858.81. Within ten days thereafter, and on March 13, 1930, the claimants filed their application for review; and on April 3, 1930, a final award was rendered by the full commission, increasing the death benefit to the sum of $8 a week for 300 weeks, the commuted value of which was the sum of $2,199.39. From the total award of $2,349.39 (being the aggregate of the sums allowed for funeral expenses and by way of death benefit), the employer and its insurer appealed to the circuit court; and, from the judgment of affirmance rendered therein, they have duly appealed the case to this court.

At the hearing before the referee, the only witness to testify was claimant Frank Schmelzle, the father of the deceased, whose testimony was, in substance, that the deceased and the several claimants had lived in a common household on the farm of the paternal grandfather, Bernhardt Schmelzle; that the income from farming operations approximated the sum of $500 a year; and that the deceased contributed the sum of $12 a week to the support of the family out of an income that was stipulated to have been $17.60 a week.

Evidently there were other agreements of one kind and another between the parties, for, at the conclusion of the testimony, the referee stated that the "basis of dependency" had been agreed upon as "40 per cent. of $12.00 a week contribution"; and in the award itself appears the recital that "the above (claimants) being partial dependents, the facts being undisputed, and amount acceptable to both parties, no special finding of fact is necessary."

So far as is disclosed by the face of the record, the difficulty encountered in this proceeding was due to the course taken in this court by the case of Triola v. Western Union Telegraph Co., 25 S.W.(2d) 518. That case involved the question of the allowance to be made to partial dependents under the provisions of what is now section 3319 (c), Rev. St. 1929. Originally we had held that, of the total death benefit provided by the act, partial dependents were entitled to recover that percentage which the contribution of the deceased bore to the entire family income. It was while the Triola Case was pending on motion for rehearing that the first award was made in the instant case, and it seems to have been made upon the basis of dependency announced in that opinion. Later the motion for rehearing was sustained, and the case reargued; and on March 11, 1930, we handed down our final opinion, in which we held that the portion of the total death benefit which partial dependents might receive should be determined by the proportion of the employee's wages which he had contributed to the support of such partial dependents, rather than by the ratio which his contribution bore to the total family income.

As soon as he was apprised of such decision, counsel for claimants, on March 12, 1930 (being still within the period of ten days allowed for an application for review), filed his application with the full commission, and set up as the basis therefor the fact that the award had been computed in accordance with our prior holding in the Triola Case; that we had subsequently construed the statute more favorably to partial dependents, as has been heretofore pointed out; and that the claimants herein were entitled to the benefit of our last and final ruling. This application was duly granted; and, upon the record taken at the hearing before the referee, the full commission modified the previous finding, and rendered its final award in accordance with the construction which we had put upon the statute.

When the case came on for a hearing in the circuit court, the appellants (employer and insurer) sought to introduce evidence with a view to showing that the award had been procured by fraud, which request was refused by the court. Thereupon they made proffer of the testimony which they sought to adduce, and, the same being again rejected, they duly preserved their exceptions, and now urge with much insistence that the court erred in refusing them leave to introduce evidence upon the point, and that, as a matter of fact, the award was procured by fraud.

The propriety of the taking of evidence in the circuit court where the point is made that the award was procured by fraud is largely a matter of first impression in this state. The whole question is governed by section 3342, Rev. St. 1929, which is by no means clear upon the matter. The statute provides that, upon appeal to the circuit court from the award of the commission, "no additional evidence shall be heard and in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding." Further in the course of the statute it enumerates the four grounds upon which an award may be modified, reversed, remanded, or set aside, one of which is "that the award was procured by fraud."

The remaining grounds mentioned in the statute—that the commission acted without or in excess of its powers, that the facts found by the commission do not support the award, and that there was not sufficient competent evidence in the record to warrant the making of the award—all call for rulings by the court upon questions purely of law, and address themselves to matters necessarily appearing upon the face of the record made before the commission. As to fraud, however, the situation must obviously be quite different, for it would hardly be expected that matters fraudulent in their nature, and going to the procurement of the award, would be disclosed in the record of the cause certified by the commission to the circuit court. Consequently, if that particular ground of appellate review is to serve any very useful purpose in the administration of the law, the ruling must be (if the language of the act permits) that evidence may be taken on the issue of fraud in the circuit court.

We have no doubt that this view of the matter is precisely what the Legislature intended. In other words, while the statute does generally provide that, upon appeal, no additional evidence shall be heard, the context and purpose of the section as a whole fairly warrant the construction that the findings of fact made by the commission within its powers shall be conclusive and binding upon the circuit court, and that no additional evidence shall be heard upon the merits of the case, but yet, if fraud is charged in the procurement of the award, then evidence may be properly taken upon that...