Shroyer v. Missouri Livestock Commission Co.

• Decision Date: 16 June 1933
• Docket Number: 32680
• Citation: Shroyer v. Missouri Livestock Commission Co., 332 Mo. 1219, 61 S.W.2d 713 (Mo. 1933)
• Parties: Mrs. Jessie R. Shroyer v. Missouri Livestock Commission Company, Employer, and Hartford Accident and Indemnity Company, Insurer, Appellants
• Court: Missouri Supreme Court

61 S.W.2d 713

332 Mo. 1219

Mrs. Jessie R. Shroyer v. Missouri Livestock Commission Company, Employer, and Hartford Accident and Indemnity Company, Insurer, Appellants

No. 32680

Supreme Court of Missouri

June 16, 1933

Appeal from Buchanan Circuit Court; Hon. J. V. Gaddy Judge.

Affirmed.

T J. Brown for appellants.

(1) Should the award in this case be sustained, the appellants would be greatly penalized and their rights would be jeopardized, as under the Revised Statutes of 1929, their right to subrogation against the third party in this case(the County Highway Commission) would be limited to ten thousand dollars ($ 10,000).R. S. 1929, sec. 3263.(2) Every section of the Workmen's Compensation Act should be taken into consideration and construed with reference to every other section of the Workmen's Compensation Act, and with special reference to the whole act, so that it will be a smoothly coordinating whole.Sec. 3374, Mo. Workmen's Compensation Act.(3)The Legislature in formulating this act intended not to prejudice an employer on account of the negligence of a third party and oblige him to pay for his negligence without having a chance to make himself whole again, as it would be contrary to the public welfare legislation against a particular class, and would deprive the employer of his property without recourse to equitable relief at law against a third party for the death of such employee.Amendment V, U.S. Constitution;Sec. 30, Art. III of the Mo. Constitution;Andrus v. Ins. Co.,283 Mo. 442, 223 S.W. 70;In re Funkes,157 Mo. 125, 57 S.W. 545;State v. Julow,129 Mo. 163, 31 S.W. 781;State ex rel. v. North,304 Mo. 670, 264 S.W. 678;Sec. 1, Art. IV, Mo. Constitution;Sec. 21-B of Workmen's Compensation Act;Wahlig v. Krenning-Schlapp Grocery Co.,325 Mo. 677;Sec. 78, Workmen's Compensation Act;Kemper v. Gluck,21 S.W.2d 922;Sec. 76, Workmen's Compensation Act;McKenzie v. Mo. Stables, Inc.,34 S.W.2d 141;Sec. 11, Workmen's Compensation Act;Clinger v. Storage Co.,25 S.W.2d 1084;People v. New York City Tax Commissioners,95 N.Y. 554;Jones v. Morris Aqueduct,36 N. J. L. 209;State v. Bancroft,22 Kan. 205; 1 Kent Commentaries, 468.(4) That there was not sufficient competent evidence to support the finding of the Workmen's Compensation Commission that the man died as the result of an accident arising out of and in the course of his employment.Smith v. Levis,14 S.W.2d 470;United States v. Ross,92 U.S. 281, 23 L.Ed. 707;Shepard v. New York City,216 N.Y. 251, 110 N.E. 435;Hardwick v. Railroad Co.,181 Mo.App. 156, 168 S.W. 328;Creson v. Railroad Co.,152 Mo.App. 197, 133 S.W. 57;Collins v. Star Paper Mill Co.,143 Mo.App. 332, 127 S.W. 641;Hays v. Hogan,273 Mo. 1, 200 S.W. 286;Manteer v. Scalzo Fruit Co.,240 Mo. 177, 144 S.W. 833;State v. Lackland,136 Mo. 26, 37 S.W. 812;Federal Surety v. Ragle,40 S.W.2d 63, Affirm.25 S.W.2d 898;Tate v. Standard Acc. Ins. Co.,32 S.W.2d 932;Vandervort v. Industrial Comm. of Wis.,234 N.W. 492;Sturmen v. Industrial Comm. of Wis.,234 N.W. 496;Comstock's Case, 129 Me. 467, 152 A. 618.

Arthur R. Wolfe for respondent.

(1) There was sufficient competent evidence to support the finding of the Workmen's Compensation Commission that the accident arose out of and in the course of the employment.Sec. 3342, R. S. 1929;Leilich v. Chevrolet Motor Co.,40 S.W.2d 605;De May v. Liberty Foundry Co.,37 S.W.2d 648;State ex rel. v. Mo. Workmen's Compensation Comm.,8 S.W.2d 900;Murphy v. St. Louis County Water Co.,54 S.W.2d 69;Woods v. American C. & I. Co.,25 S.W.2d 144;Betz v. Columbia Tel. Co.,24 S.W.2d 224;Bricker v. Gille Mfg. Co.,35 S.W.2d 664;Cotter v. Valentine Coal Co.,14 S.W.2d 660;Cobb v. Standard Accident Ins. Co.,31 S.W.2d 573;Fisher v. Stevens College of Columbia,47 S.W.2d 1101;Wahlig v. Krenning-Schlapp Gro. Co.,325 Mo. 677, 29 S.W.2d 128;Branch v. Skinner Bros. Mfg. Co.,51 S.W.2d 27;Schulte v. Grand Union Tea & Coffee Co.,43 S.W.2d 832;Nations v. Barr,43 S.W.2d 858;Howes v. Stark Bros. Nursery,223 Mo.App. 793, 22 S.W.2d 839;Sawtell v. Stern Bros. Co.,44 S.W.2d 264;Moran's Case, 234 Mass. 566, 125 N.E. 591;Kearney's Case, 232 Mass. 532, 122 N.E. 739;City of Fremont v. Lea,115 Neb. 566, 213 N.W. 820;Caster v. Hotel Co.,102 Neb. 585, 168 N.W. 191;Katz v. Kadans & Co.,232 N.Y. 420, 134 N.E. 330;Capital Paper Co. v. Conner,81 Ind.App. 547, 144 N.E. 474;Barlow v. Shawnee Investment Co.,48 S.W.2d 50;Jackson v. Euclid-Pine Investment Co.,22 S.W.2d 851;Schaefer v. St. Louis Independent Packing Co.,38 S.W.2d 305;Huselman v. Stute & Co.,28 S.W.2d 388;Jarnagin v. Warner & Co.,18 S.W.2d 129;Frese v. Wells,40 S.W.2d 653;Tueteberg v. St. Louis Pub. Serv. Co.,41 S.W.2d 957;Buesching v. St. Louis Gas & Light Co.,73 Mo. 229;Johnston v. Railroad,150 Mo.App. 320;Collins v. Star Paper Mill Co.,143 Mo.App. 333;Leeright v. Ahrens,60 Mo.App. 119;Voelker v. Construction Co.,153 Mo.App. 9;Yongue v. Frisco,133 Mo.App. 152;Wack v. Railroad,175 Mo.App. 121;Schultz v. Moon,33 Mo.App. 340;Railroad Co. v. McDade,191 U.S. 65;Portland Gold Mining Co. v. Flaherty,111 F. 312.(2) The method employed by the Workmen's Compensation Commission in computing the single death benefit, viz., multiplying 300 by 66 2/3 per cent of deceased employee's average weekly wage during the year immediately preceding his death, was correct and in accordance with the law; therefore the Commission did not exceed its powers, even though the award was for a contingent amount larger than $ 10,000.Wahlig v. Krenning-Schlapp Gro. Co.,325 Mo. 677, 29 S.W.2d 133;Murray v. Marshall-Hughes Co.,34 S.W.2d 36;Leilich v. Chevrolet Motor Co.,40 S.W.2d 605;Anderson v. Aetna Brick Laying & Const. Co.,27 S.W.2d 756;Sleyster v. Eugene Donzelot & Son,223 Mo.App. 1166, 25 S.W.2d 149;Reardon v. St. Louis County,36 Mo. 555;Lyons v. Met. St. Ry. Co.,253 Mo. 143;Gayhart v. Monarch Wrecking Co.,49 S.W.2d 266;McKenzie v. Mo. Stables, Inc.,34 S.W.2d 141;Luckey v. Railroad Co.,117 Neb. 85, 219 N.W. 802;De May v. Liberty Foundry Co.,37 S.W.2d 640;Ch. 28, R. S. 1929(Workmen's Compensation Act).(3) No constitutional question can be raised here by appellants because they did not raise such question below or assign it as error here.Lentz v. Asphalt Paving Co.,50 S.W.2d 1063;Holstein v. St. Louis Roofing Co.,42 S.W.2d 573;De May v. Liberty Foundry Co.,37 S.W.2d 640;Warren v. American Car & Foundry Co.,38 S.W.2d 718;Mayberry v. Construction Co.,37 S.W.2d 574;McKenzie v. Mo. Stables, Inc.,34 S.W.2d 141;Langston v. Seldon-Brick Const. Co.,37 S.W.2d 474;Pfilzinger v. Shell Pipe Line Corp.,46 S.W.2d 957;De Soto v. Dover,38 S.W.2d 267;Waterman v. Chicago Bridge & Iron Works,328 Mo. 688, 41 S.W.2d 575;Pruitt v. Harker,328 Mo. 1200, 43 S.W.2d 769;Oren v. Swift & Co.,51 S.W.2d 59.(4) The Compensation Commission did not err in computing the average weekly wage in this case.Ch. 28, Secs. 3319, 3320, R. S. 1929.

OPINION

Atwood, J.

This is an appeal from a judgment affirming final award by the Missouri Workmen's Compensation Commission of compensation to Mrs. Jessie R. Shroyer, dependent widow of William H. Shroyer, deceased, whose death resulted from an automobile accident which occurred on a public highway in central Kansas on October 23, 1931.The award was for death benefits in the sum of $ 20 per week for 621.4 weeks or until the prior death or remarriage of said dependent, for burial expenses in the sum of $ 150 and for medical aid in the sum of $ 88.88.

Respondent filed a motion to dismiss the appeal because appellants' abstract of the record failed to show that the circuit court ever made an order allowing an appeal.Within ten days thereafter appellants perfected their abstract by filing in this court a certified copy of enough of the record proper to show that the appeal had been duly allowed.Appellants had a right to do this under our rule number 11.Consequently, respondent's motion to dismiss is overruled.

Appellants insist that there was not sufficient competent evidence to support the commission's finding that the employee "died as the result of an accident arising out of and in the course of his employment."The commission's finding of facts and award have the force and effect of the verdict of a jury.[Sec. 3342, R. S. 1929;Leilich v. Chevrolet Motor Company,328 Mo. 112, 40 S.W.2d 601, 604;DeMay v. Liberty Foundry Co.,327 Mo. 495, 37 S.W.2d 640, 648;State ex rel. v. Missouri Workmen's Compensation Commission,320 Mo. 893, 8 S.W.2d 897, 899.]Hence, in determining whether the evidence sustained the commission's finding respondent is entitled to a consideration of the competent evidence most favorable to her together with all reasonable inferences to be drawn therefrom in support of the finding.[Bricker v. Gille Mfg. Co.,225 Mo.App. 989, 35 S.W.2d 662, 664;Cotter v. Valentine Coal Co.(Mo. App.),14 S.W.2d 660;Smith v. Levis-Zukoski Mercantile Co. et al.(Mo. App.),14 S.W.2d 470, 472.]

The evidence showed that from March 1, 1927, until his death on October 25, 1931, respondent's husband was employed by the Missouri Live Stock Commission Company of South St Joseph, Missouri, as an appraiser and solicitor of live stock.Counsel for appellants admitted at the trial that he was in the employ of this commission company when he had an accident while en route from one customer to another on the company's business and that his death was the result of such accident, but denied that the accident arose out of his employment.At the time of the accident he was driving an automobile, furnished by his employer, upon an east and west dirt highway in the vicinity of Lincoln, Kansas, and was going westward on his way from the farm of H....