Wright v. Penrod, Jurden & Clark Co.
| Citation | 88 S.W.2d 411 |
| Decision Date | 12 November 1935 |
| Docket Number | No. 18410.,18410. |
| Court | Court of Appeal of Missouri (US) |
| Parties | DELORA WRIGHT, CLAIMANT, RESPONDENT, v. PENROD, JURDEN & CLARK Co., EMPLOYER, CONSOLIDATED UNDERWRITERS, INC., INSURER, APPELLANTS. |
Appeal from Circuit Court of Jackson County. — Hon. Daniel E. Bird, Judge.
REVERSED AND REMANDED (with directions).
Julius C. Shapiro and Johnson, Garnett & Quinn for respondent.
Morrison, Nugent, Wylder & Berger and Chas. C. Byers for appellants.
This is an appeal from the final judgment of the Circuit Court of Jackson County setting aside an award of the Workmen's Compensation Commission.
On June 27, 1933, the plaintiff, Delora Wright, filed before the Workmen's Compensation Commission her claim as the widow of Byron Leroy Wright, deceased, for compensation on account of injuries received on June 17, 1933, by said Byron Leroy Wright by alleged accident arising out of and in the course of his employment while in the service of the defendant Penrod, Jurden & Clark Company, a corporation at Sheffield, Missouri, as his employer, which alleged accidental injuries on said date resulted in his death. The claim was filed against the defendant Penrod, Jurden & Clark Company and against T.H. Mastin Insurance Company, as insurer. The defendants made answer to the complaint filed with the commission, filed July 15, 1933, denying each and every allegation thereof.
The claim was heard on September 7, 1933, before the Honorable J.J. James, a member of the Commission. Upon the hearing, the evidence offered by plaintiff in support of her claim, as well as that offered by defendants in opposition thereto, was received and duly preserved by the commissioner. Thereafter, on September 28, 1933, the said commissioner made report upon said hearing, accompanied by his finding of facts on the evidence offered, awarding compensation to plaintiff in the total sum of $3219 and, for funeral expenses of the deceased employee, in the sum of $150. On October 6, 1933, upon application of defendants duly made and filed, the award of the Honorable J.J. James was reviewed and was by the commission reversed and set aside; and a final award was entered denying compensation for the alleged accident, which said award was in part as follows: Such final award was dissented from by said Commissioner James.
Thereafter, under the certificate of the commission, an appeal from said award denying compensation was duly lodged in the circuit court of Jackson county by the return to said court by the commission of all documents and papers on file in the cause together with a transcript of the evidence and the findings and also the award, the orders, and the decisions by it made thereon.
Thereafter, on February 18, 1935, upon a hearing had upon said appeal, the Circuit Court of Jackson County ordered the said award appealed from set aside and for naught held and remanded the cause to the commission for a rehearing.
The grounds for such action by the court fully appear from its order and judgment at such time entered, which said order and judgment are as follows:
From said judgment reversing and setting aside said award and remanding the cause, the defendants have duly perfected an appeal to this court.
1. It is contended by defendants (appellants herein) that the circuit court erred in holding that the Workmen's Compensation Commission, in making its award denying compensation, acted without and in excess of its powers.
The contention is well made. The commission had full jurisdiction to render its final award. It had jurisdiction of the parties and of the subject-matter and jurisdiction to entertain the proceedings therefor and to render the award. [Chapter 28, Revised Statutes 1929.] By sections 3339, 3340, 3341, and 3342, Revised Statutes 1929, it is provided that a hearing shall be had in the first instance either by the full commission or by one of its members. If such hearing be had by one of its members, the award made by him is subject to review by the full commission and to a hearing and a final award by the full commission, which final award becomes conclusive unless avoided by appeal therefrom.
Nothing appears in the record herein by which the proceedings before the commission are impeached. That there was irregularity or irregularities by which its jurisdiction to proceed was interrupted or divested is not to be presumed. [Waterman v. Chicago Bridge & Iron Works, 328 Mo. 688, 41 S.W. (2d) 575.]
2. It is next contended by defendants that the circuit court erred in reversing and setting aside the award of the commission on the ground that the facts found by the commission did not support the award made by it. An examination of the record discloses that this contention must be sustained.
It will be noticed that the commission's finding, upon which the award of no compensation was based, was of the ultimate fact that, under the evidence, the plaintiff had failed to prove that the employee's death was the result of the accident as alleged in the complaint. In other words, it found that, from a consideration of the entire evidence, the employee's death was not shown to be the result of an accident; and it denied compensation.
It is the law that, before compensation may be allowed, the injury for which it is claimed must have been occasioned by accident arising in the course of the injured employee's employment; and therefore a finding by the commission, upon competent evidence, that the evidence failed to show that the injury inflicted was the result of an accident is the finding of an essential ultimate fact which prevents compensation.
Such a finding does not amount merely to a ruling that the complainant (the plaintiff) did not make out a prima facie case; but, upon the other hand, it constitutes a finding for the employer and against the claimant on the whole evidence with an award based on such finding. .]
It therefore follows that the award of no compensation was directly responsive to the facts as found by the commission and directly supported thereby and that the contention of defendants that the circuit court erred in so far as it based its reversal of the commission's award upon the ground that such award was not supported by the facts as found by the commission must be sustained.
3. It is next contended by defendants that the circuit court erred in reversing and setting aside the award of the commission on the ground that there was not sufficient competent evidence in the record to warrant the award denying compensation; and defendants insist that the award as made was supported by sufficient competent evidence and was binding upon the circuit court upon appeal. This contention must likewise, upon the record, be upheld.
It is contended by plaintiff that the deceased employee came to his death as the result of being accidentally asphyxiated by poisonous gases while cleaning the fire under the boilers which he was employed to fire. Defendants contend that he died as the result of a heart attack.
At the time of his death, Wright was fifty-six years old, five feet eight inches tall, and weighed one hundred and eighty-five pounds. He lived with his family, consisting of his wife (the claimant) and his minor daughter Mary Wright, age seventeen years. He was a night fireman, on duty from six o'clock each evening until six o'clock each morning, seven days a week; he had been engaged in that work for approximately sixteen years; and his duties required manual labor of a heavy type.
The boiler room where he worked and in which he died contained five boilers with separate fire boxes under each. The boiler room or pit was several feet below the floor of the remainder of the building.
It was the duty of the deceased Wright to wheel coal into the boiler room from bins on the outside to provide fuel for each night's firing and that duty required him to wheel about three wheelbarrow loads every five minutes and to handle in that way from three to four tons of coal a night. It was also his duty to clean the fires about every three...
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