Scott v. Wheelock Bros.

• Decision Date: 08 March 1948
• Docket Number: 40135
• Citation: 209 S.W.2d 149,357 Mo. 480
• Parties: Myrtle Scott, Appellant, v. Wheelock Brothers, Inc., Employer, and Casualty Reciprocal Exchange, Insurer
• Court: Missouri Supreme Court

209 S.W.2d 149

357 Mo. 480

Myrtle Scott, Appellant, v. Wheelock Brothers, Inc., Employer, and Casualty Reciprocal Exchange, Insurer

No. 40135

Supreme Court of Missouri

March 8, 1948

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

Russell Mallett and Norman, Foulke & Warten for appellant.

(1) This appeal is governed by the provisions of the Administrative Review Act, Mo. R.S.A., 1140.101-10, and the 1945 Constitution, Article V, Section 22. Under the statute and under the Constitution this court will determine whether the award is supported by competent and substantial evidence on the whole record. The failure of the Compensation Commission to make a written decision containing findings of fact and conclusions of law is violative of Section 1140.109 and requires reversal of this cause. The award in this case is not supported by competent and substantial evidence on the whole record. Mo. R.S.A., 1410.101-10; Mo. Constitution of 1945, Art. V, Sec. 22; State ex rel. Northwestern Mut Life Ins. Co. v. Bland, 189 S.W.2d 542; Wood v Wagner Electric Corp., 197 S.W.2d 647. (2) The requirements of proof for an award of dependency under the Workmen's Compensation Law of Missouri are governed by Section 3709, Revised Statutes of Missouri of 1939, as follows: The requirements are: (a) Must be relative by blood or marriage. (b) Must be actually dependent for support, in whole or in part, upon the wages of the deceased employee, at the time of the injury. Raszor v. Marshall Hall Grain Corp., 25 S.W.2d 506; Phillips v. Air Reduction Sales Co., 85 S.W.2d 551. (3) The Compensation Act must be construed with a liberality calculated to effect its purpose and so as to extend its benefits to the largest possible class and restrict those excluded to the smallest possible class. Hilse v. Cameron Joyce Const. Co., 194 S.W.2d 760; Baird v. Gleaner Harvester Corp., 172 S.W.2d 892. (4) If the exhibits offered by respondents were sufficient to create a presumption that appellant had received some contributions from her son Calvin; or that her son Ira, the deceased, was married to Peggy Childers (and we insist they are insufficient to create such a presumption), then such presumption, if any, entirely vanished and cannot be indulged upon the presentation of the positive testimony of Calvin Langford and the appellant that the appellant had not received any contributions from him, and the alleged presumption of marriage vanished entirely upon proof of declarations of the two (Ira and Peggy), that they were not married, could not be married because Peggy was already married, and finally, the testimony of Peggy herself that they were not married. State ex rel. United Mut. Ins. Assn. v. Shain, 162 S.W.2d 255.

Watson, Ess, Barnett, Whittaker & Marshall and Douglas Stripp for respondents.

(1) The proceedings of the Workmen's Compensation Commission were not governed by the Administrative Review Act at the time it made its final award and, therefore, the Commission committed no error by failing to separately state its findings of fact and conclusions of law. Administrative Review Act, S.C.S. for S.B. No. 196, Mo. R.S.A., Sec. 1140.101-10. (2) An award of the Commission denying compensation on the basis of a failure of proof by the party having the burden of proof need not be supported by any evidence and it may be conclusive on appeal, notwithstanding the provision of Section 22, Article V, 1945 Constitution. Kemmerling v. Karl Koch Erecting Co., 338 Mo. 343, 89 S.W.2d 674; Carnahan v. Kurn, 113 S.W.2d 824; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558; Ulman v. Chevrolet-St. Louis Div. of G.M. Corp., 349 Mo. 906, 163 S.W.2d 778; Noto v. Hemp & Co., 231 Mo.App. 982, 83 S.W.2d 136; Webster v. Boyle-Pryor Const. Co., 144 S.W.2d 828; Kopolow v. Zavodnick, 177 S.W.2d 647; Wood v. Wagner Electric Corp., 197 S.W.2d 647. (3) In any event, the award is supported by substantial evidence on the whole record. Sec. 3707, R.S. 1939; Kemmerling v. Karl Koch Erecting Co., 338 Mo. 343, 89 S.W.2d 674; McCoy v. Simpson, 346 Mo. 86, 139 S.W.2d 950; Kelsall v. Riss & Co., 165 S.W.2d 329; Wood v. Wagner Electric Corp., 197 S.W.2d 647; Osmak v. American Car & Foundry Co., 328 Mo. 159, 40 S.W.2d 714; Thomson v. Thomson, 326 Mo.App. 234, 163 S.W.2d 792; 38 C.J. 1337; Webster v. Boyle-Pryor Const. Co., 144 S.W.2d 828. (4) The liberal construction provision of the Compensation Law is inapplicable. Staten v. Long-Turner Const. Co., 185 S.W.2d 375.

OPINION

Barrett, C.

On March 20th, 1945, Ira Langford, age twenty-five, died as the result of injuries arising out of and in the course of his employment as a truck driver for Wheelock Brothers. His mother, Myrtle Scott, claiming to have been totally dependent upon him for support filed this claim for compensation and death benefits in the sum of $ 12,000. The referee found that the "employee had no dependents" and made an award against the employer and insurer of $ 500.00 to be paid to the Second Injury Fund. Mo. R.S.A., Sec. 3707, Laws Mo. 1945, p. 1998. On Mrs. Scott's claim the referee found in favor of the employer and insurer and against the claimant and made this specific finding: "I find from all the evidence that the alleged dependent and claimant herein failed to prove that she was in fact a dependent of the deceased employee, and, therefore, compensation must be and is hereby denied." In affirming the referee's award, upon review, the full Commission made this specific finding: "We find from the evidence that claimant failed to prove that she was in fact a dependent of the deceased employee, therefore, compensation must be and is hereby denied." The award was affirmed by the Circuit Court of Jackson County and Mrs. Scott appeals.

At the outset we are faced with the appellant's claim that the validity of the commission's award and the merits of this appeal are to be tested and determined by the Administrative Review Act (Mo. R.S.A., Secs. 1140.101-1140.110, Laws Mo. 1945, p. 1504) and Section 22, Article V of the Constitution of Missouri, 1945. The respondents contend, since the final award was made on April 15, 1946 and the Administrative Review Act did not become effective until July 1, 1946, that it can have no application to this award and appeal. But, in any event, the Administrative Review Act is not applicable to this appeal. At the time that act was passed the Workmen's Compensation Law not only prescribed the procedure to be followed by the Commission but also provided for judicial review of its decisions. Mo. R.S.A., Secs. 3722-3747. And, Section 10 of the Administrative Review Act applies to the decisions of all administrative agencies "unless some other provisions for judicial review is provided by statute." Senate Bill 196 (the Administrative Review Act) was specifically amended by the addition of the italicized clause (Senate Journal, 63rd General Assembly, 1945, Vol. II, p. 1998) and plainly, thereby, it was not intended that this provision of the act should apply to the review of decisions of the Workmen's Compensation Commission. Section 22 of Article V of the Constitution, providing for judicial review of the decisions of all administrative bodies, is self-enforcing, however, and the case on appeal is to be determined in the light of Section 3732 of the compensation law (as it has been specifically amended to conform to the requirements of the 1945 Constitution by Laws of Missouri 1945, p. 1996) and as that law has been broadened by the self-enforcing requirement of the Constitution to include a determination of whether the award is "supported by competent and substantial evidence upon the whole record." Const. Mo., Art. V, Sec. 22; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647. The technical sufficiency and validity of the Commission's award will appear hereinafter.

In this connection it is the appellant's position that there is not competent and substantial evidence upon the whole record to support the award denying compensation. The respondents contend, in the circumstances of this case, that the award may not be reviewed upon the whole record to determine whether it is supported by competent and substantial evidence. It is argued, when an award is against the party having the burden of proof, that the award need not be supported by any evidence because such an award is based upon a finding against the credibility of the witnesses testifying to the fact, here dependency. The essence of the respondents' argument is this: "appellant's evidence in this case was mostly in the form of oral testimony by witnesses who were seen and heard only by the Referee. None of the documentary evidence offered by her was of a character which compelled acceptance. The referee who heard and saw the witnesses was not persuaded by them and he found against her on the ground of failure to prove her case. The full Commission did likewise. Under such circumstances we think it is clear that on this appeal there can be no question whether the award is or is not supported by evidence. By its very nature this award denying compensation on the ground of failure to prove dependency is one which requires no evidentiary support, but rests upon the lack of evidence found credible by the triers of the facts." In short, when there is an award denying compensation, the respondents seek to apply the often repeated rule of Cluck v. Abe, 328 Mo. 81, 84, 40 S.W.2d 558, 559, that a defendant in a jury tried case is entitled to have the jury pass upon the credibility of the plaintiff's unimpeached, uncontradicted testimony, even though the defendant offers no testimony, and return a verdict for the defendant, conclusive on...