Shout v. Concrete & Const. Co.
| Decision Date | 15 June 1931 |
| Docket Number | No. 17254.,No. 17249.,17249.,17254. |
| Citation | 41 S.W.2d 629 |
| Parties | SAMUEL B. SHOUT, RESPONDENT, v. GUNITE CONCRETE AND CONSTRUCTION CO. ET AL., APPELLANTS. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County. — Hon. Brown Harris, Judge.
AFFIRMED.
Madden, Freeman & Madden for respondent.
Lathrop, Crane, Reynolds, Sawyer & Mersereau for appellants; Frank L. Barry of counsel.
This is a controversy arising under the Workmen's Compensation Act. From a judgment affirming an award in favor of plaintiff and against defendants, the defendants brought the case to this court by separate appeals which, upon the record, are causes numbered 17249 and 17254. Upon submission the appeals were, by agreement of the parties and by order of the court, consolidated.
The plaintiff's claim was filed with the commission on July 1, 1929. It is therein stated that claimant was an employee of the defendant Gunite Concrete & Construction Company of Kansas City, Missouri; that the name of the insurer was Globe Indemnity Company; that the average weekly wage of plaintiff was $30; that the injury was received on October 20, 1927, in Pierre, South Dakota; that the injury was total and permanent, and that compensation had been paid therefor to the date of the filing of the claim in the sum of about $1200.
The defendants filed answer in which it is averred that they deny each and every statement and allegation made in the claim in answer to questions numbers eleven to eighteen except question seventeen, and that they deny any and all liability to pay compensation to plaintiff under the Missouri Workmen's Compensation Law, for the reason that the accident occurred in the State of South Dakota, and claim for compensation was not filed with the Workmen's Compensation Commission within six months after the date of accident.
The claim was heard before Commissioner James on October 30, 1929, who, under the heading "Statement of Facts," found that it was admitted plaintiff, on October 20, 1927, was injured by accident arising out of and in the course of his employment; that at the time of injury he was working under a contract of employment which had been made in Missouri; that he had been working for the employer in the State of Missouri for six or seven years; that in the early part of October, 1927, the employer sent him to Pierre, South Dakota, at which place he was injured; that defendants admit that they have paid to said employee the sum of $1,374.75, on account of the injury, but claim that the same was paid "as provided in the compensation law of South Dakota;" that the last payment of compensation was made on October 24, 1929. Said commissioner, on December 20, 1929, made an award in favor of plaintiff and thereafter, in due time, upon the application of defendants, the award was reviewed by the full commission who made an award in favor of plaintiff, stating therein that the statement of facts of Commissioner James "is hereby affirmed." There was ample evidence to justify the findings of fact made by the commission.
The defense tendered by answer is that the accident occurred in South Dakota; that the claim was not filed within six months after the date of accident.
The contention that compensation should be denied merely because the accident occurred in South Dakota, ignores the controlling fact that the contract of employment was made in Missouri. [Sec. 3310, R.S. 1929.] The provisions of the statute are binding upon the parties. [State ex rel. v. Workmen's Compensation Commission, 8 S.W. (2d) 897.]
The claim was not filed with the commission within six months after the date of accident.
In a few days after the accident a person, whose identity is not revealed, called on plaintiff at the hospital to which he had been taken, and said to him "he would report it (accident) to the Company Compensation of Missouri." Shortly thereafter the insurance carrier sent plaintiff a check for thirty dollars in which it is recited the payment was accepted "on account of compensation for two weeks... . under the South Dakota Compensation Law."
Further payments were thereafter made upon the basis of fifteen dollars per week until in May, 1929, when the payments were reduced to seven dollars and fifty cents per week.
Section 3337, provides that "proceedings for compensation" shall be begun within six months after the injury "or in case payments have been made on account of the injury ... within six months from the date of the last payment."
That the payments were made "on account of the injury" is admitted.
But, defendants say, the payments were made under the ...
To continue reading
Request your trial
-
Carpenter v. William S. Lozier, Inc.
... ... 595, ... 271 S.W. 358; Winterbottom v. Kurn, 141 S.W.2d 93; ... Pfister v. Badgett Const. Co., 65 S.W.2d 137; ... State ex rel. Kansas City Bridge Co. v. Missouri ... Commission, 81 ... 1939; ... Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; ... Decker v. Raymond Concrete Pile Co., 336 Mo. 1116, ... 82 S.W.2d 267; Bullock v. Potashnick, 162 S.W.2d ... 607; Hughes v ... Title 40, U.S.C.A., excludes the application of the ... Missouri Compensation Act. Shout v. Construction ... Co., 41 S.W.2d 629; Knupp v. Truck Service, 135 ... S.W.2d 1084; State ex ... ...
-
Russell v. Ely & Walker Dry Goods Co.
...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 within the terms of the Workmen's Compensation Law he gives up a substantial consideration for the ......
-
Hungate v. Hudson
...accordance with the law of some other state. McClintock v. Skelly Oil Co., 232 Mo.App. 1204, 114 S.W.2d 181; Shout v. Gunite Concrete & Const. Co., 226 Mo.App. 388, 41 S.W.2d 629; Sims v. Truscon Steel Co., 343 Mo. 1216, 126 S.W.2d 204. Under such circumstances, even though Hudson and his e......
-
Sheets v. Hill Bros. Distributors, Inc.
...53 S.W.2d 34; O'Malley v. Mack International Motor Truck Corporation, 225 Mo.App. 1, 31 S.W.2d 554; and Shout v. Gunite Concrete & Construction Co., 226 Mo.App. 388, 41 S.W.2d 629. See also Myers v. Cap Sheaf Bread Co., 354 Mo. 943, 192 S.W.2d 503, where this court quoted from Liberty Mut. ......