Travelers' Ins. Co. v. Davis, 21601.

• Decision Date: 03 November 1931
• Docket Number: No. 21601.,21601.
• Citation: 42 S.W.2d 945
• Parties: TRAVELERS' INS. CO. et al. v. DAVIS et al.
• Court: Missouri Court of Appeals

42 S.W.2d 945

TRAVELERS' INS. CO. et al. v. DAVIS et al.

No. 21601.

St. Louis Court of Appeals. Missouri.

November 3, 1931.

Rehearing Denied November 17, 1931.

Appeal from Circuit Court, St. Louis County; Arthur V. Lashly, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Emily A. Davis and another for the death of Charles Howard Davis, a minor, against the Staso Milling Company, employer, and the Travelers' Insurance Company, insurer. From a judgment of the circuit court affirming the award of the Workmen's Compensation Commission, the employer and insurer appeal.

Affirmed.

Jones, Hocker, Sullivan & Angert and Warren F. Drescher, Jr., all of St. Louis, for appellants.

James T. Blair, Jr., of Jefferson City, for respondents.

BECKER, J.

This is an appeal from a judgment of the circuit court of the county of St. Louis affirming the final award of the Workmen's Compensation Commission.

The claim for compensation filed with the commission alleged that Charles Howard Davis, a minor, died as the result of being electrocuted by a short-circuited motor in the employer's mill at Sherman, St. Louis county, Mo.

The finding of the full commission was as follows:

"It is conceded by both parties that the deceased died as a result of personal injuries by accident arising out of and in the course of his employment. The only question to decide is the amount of compensation the dependents shall receive.

"Mr. McKenna, superintendent, testified that the deceased's wages were 50 cents per hour, and twelve hours constitutes a day's work, and they worked 7 days per week. The dull period consists from around the first of October to the first of February or March. That would leave eight months in which they would work, and, working seven days per week, would make a total of 242 days they would operate a year. If deceased made $6.00 per day for 242 days he would average $1,450.00 for the year, or $27.92 per week.

"The father and mother of the deceased both testified that all of his wages were turned over to them and were necessary to the upkeep of the family.

"After viewing the record in this case, it is our conclusion that the father and mother are partial dependents and are entitled to the full amount the deceased contributed to them."

It is urged by appellants that the award as it now stands is not supported by sufficient competent evidence. In support of this contention it is argued that the uncontradicted evidence in the case shows that the deceased had not been in the employ of his employer for one full year next preceding his death, and, further, that if he had been (in keeping with section 3320 (c), Rev. Stat. Mo. 1929), he would have worked for only 183 days in said year's time preceding his death, and therefore the basis of computing the total death benefit allowable in this matter is found in section 3320 (e) and section 3319 (b), Rev. Stat. Mo. 1929, which provide that the minimum number of days which shall be used for the basis of the year's work shall be not less than 200. It is contended that under these sections the total death benefit allowable would aggregate $4,616, instead of $5,580 as found by the full commission in its final award.

The testimony adduced pertinent to this question, as appears from the record, is that of witness James E. McKenna, who testified he was superintendent of the Staso Milling Company, whose plant ground up gravel obtained in the Meramec river for use in the manufacturing of a patent roofing paper and for which company the deceased minor was working at the time he met with his death. He stated that the wages paid deceased had averaged 50 cents an hour, twelve hours constituting a working day, and the work was continuous seven days per week. He stated that in the business "we had our dull periods and our brisk periods. * * * Our dull period consists of from around the first of October to the first of February or March. Last year our brisk period started with April and ended with September of this year. * * *

"Q. And that dull period runs from the first of October to the first of February? A. Somewhere in that neighborhood. It all depends on the season."

The record also discloses that there was a report on file made on August 8, 1928, by E. R. Schultz, then foreman of the plant, to the effect that the plant worked 300 working days a year.

Concededly since the deceased had not been in the employ of his employer for the full year immediately preceding the accident which caused his death, under section 3320 compensation herein is to be computed according to the annual earnings which persons of the same class in the same employment and in the same location (or, if that be impracticable, of neighboring employments of the same kind) have earned during such period. Under the testimony the commission found that eight months was a proper length of time to use as a basis for computing decedent's annual earnings.

We rule that the foregoing testimony is sufficient to support the finding of the commission on this question, since we are required to consider the case just as if it was a case where the facts had been determined by a jury without considering the weight of the evidence or the credibility of the witnesses. Hammack v. Lumber Co. (Mo. App.) 30 S.W.(2d) 650; Brewer v. Cement Co., 223 Mo. App. 983, 25 S.W.(2d) 1086.

It is further contended that the award is not supported by sufficient competent evidence to warrant the making of an award in favor of respondents for the full amount of the death benefit allowable. The point is without merit.

The undisputed facts with reference to this point are that Charles Davis, the employee, was 17 years of ago, unmarried and unemancipated, and living with and under the custody and control of his parents. The family, besides the parents and deceased, consisted of five younger children. The earnings of the father amounted to $80 per month, which, together with part or all of the earnings of the deceased, made up the entire income of the family, all of which income was necessary for its support.

We quote the following from the testimony of Mrs. Davis as it appears in the...