*1 by as proceeds the sale invested the manner directed the stat- supervision under the orders and court. ute and of the Coming complaint to the final that the evidence is insufficient and to warrant sustain the order sale made court we find .the by plaintiff, support offered respondent, the evidence of her peti Apparently not controverted. tion is evidence is not set out enough by the appears full abstract filed but show that to the in years from the land for two preceding come more next filing inadequate pay was wholly provide suit to and taxes for the repairs preserve against ordinary necessary property waste, to injury deterioration and that was unprofitable and life estate Appellant argues, general and burdensome. only, assertion to the effect, proper management the land could be made to return charges a sufficient income all such a profit to meet and return tending tenant. However discover no life we evidence to show mis management handling method of property that some other likely obtaining than that followed result would sufficient re provide pay upkeep. turn therefrom to the taxes and We think substantial and there is uncontroverted evidence make out a case finding under the statute and sustain the of the chancellor thereon. judgment except It is therefore ordered that the be affirmed as to being part noted as erroneous and in order that the trial court modify may and correct its decree conform to the expressed, purpose only, herein views and for that and the remanded to the trial with reversed cause directions to judgment according- that court to amend correct its decree and Sturgis ly. Hyde, concur. GC., foregoing opinion PER CURIAM:—The C., is by Ferguson,
adopted opinion judges as court. All of the concur. Shroyer R. Missouri Commission Com Mrs. Jessie Livestock Indemnity Company, Employer, Hartford Accident pany, 713. urer, Appellants. Ins Banc, June Court en
T. J. appellants.. Brown
1-221 *3 respondent. Arthur B. Wolfe
ATWOOD, J. This is an appeal affirming final award the Missouri Compensation Commission of Workmen’s! compensation Mrs. Shroyer, Jessie R. dependent widow of William Shroyer, H. deceased, whose death resulted from an automobile ac cident which public highway occurred on a in central Kansas on October The was for death -benefits the sum of $20 per week 621.4 prior until weeks or remar riage of dependent, said expenses for burial $150 the sum of and for medical aid in $88.88. the sum of
Respondent filed a motion appeal ap to dismiss the because pellants’ abstract of the record failed to show that the circuit court allowing ever made an appeal. days order Within ten there appellants after perfected by filing their abstract in this a cer copy enough tified proper of the record appeal to show that had been duly Appellants allowed. had a to do this under our rule 11. Consequently, number respondent’s motion to dismiss is overruled.
Appellants insist that there competent was not sufficient evi support dence to finding commission’s “died as the arising result of an accident out of and in the course of his ’’ employment. The finding commission’s of facts and award have force and jury. effect of the verdict -of R. S. 192 [See. *5 Leilich v. Company, 112, Chevrolet Motor 328 40 (2d) 601, S. W. 604; DeMay Liberty Foundry v. Co., 495, (2d) 37 S. W. 640, State ex rel. Compensation Missouri Workmen’s Com mission, Hence, S. W. in determin- 899.]
ing finding the re whether evidence sustained the commission’s spondent competent entitled to a consideration the evidence together most favorable to her with all reasonable inferences be Mfg. support finding. drawn therefrom in Grille [Bricker v. 225 Mo. App. 662, 664; 35 S. W. Cotter Valentine (Mo. (2d) 660; App.), Co. Smith v. Levis-Zukoski Coal (Mo. (2d) 470, App.), Mercantile Co. et al. 472.] 1, 1927, The from until his death evidence showed that March the 1931, respondent’s employed on October husband was Joseph, Mis Company Missouri Live Stock Commission of South St. souri, ap appraiser as an solicitor of live stock. Counsel and employ this pellants admitted the was in com at trial that he the company en mission an while route one when he had accident his was company’s customer to another on the business and that accident, accident arose the result such but denied that the out driving employment. of his he was an At the time of the accident autontobile, employer, upon his -an and west dirt furnished east vicinity Lincoln, going was westward highway Kansas, the way had'inspected on his of-H. E. Skinner where he from the-farm appraised cattle, his farm D. E. and-Howard the West to n purpose inspecting appraising their cattle. the bridge culvert, probably sixteen There was evidence a feet higher long fourteen wide or three feet than the feet and two general roadway, and one-half miles east was located- about two - way gen- was the slightly farm this road which south of the West on- farm, going farm West erally traveled from the'Skinner to the angle roadway, that a car at an across the so and that was set twenty culvert,- a of- miles crossing going speed unless at less, upward off tendency have a to be thrown hour would driver, unless angle an- roadway and-'tit an so that the likely be to lose control ticipating crossing, character of would this was immediately culvert. There passed over car after it just hump west of the culvert. roadway dirt also considerable Skinner farm for Shroyer left Mr.' was--shown to have farm, which west and one mile'north of was located six miles West evening of October farm, -in the Skinner1 about six o’clock approached wife who and his He -wasnext seen farmer later and an hour dis east about described culvert from the above lying Skinner- farm had left the in which he the automobile covered along bank of north north in a ditch on its side and headed rear The left wheel of culvert. roadway feet west 'of the about in, out, “top mashed fen glass broken down, car was broken burning. They light jimmed up,’’ the tail pretty ders but well lying- in a ditch Shroyer condition Mr. found a semi-conscious twenty farther west. feet roadway about on the south side of the
1225 along and marks Skidmarks the bank on the north high- side way were noted at approximately twenty-five, distances fifty and seventy-five immediately Shroyer’s feet west the culvert. Mr' hat, glasses, partially filled bottle of soda mint tablets and some matches were found strewn across the road between the car and place lying, where he was the crank of the car was on found the south road. side of the
Insisting that the accident did not out of employment, arise appellants counsel for stress the circumstance of the soda mint testimony tablets and lying by that the while the roadside in a presence semi-conscious persons state said in the who had gathered there, again “Did I have an accident?” and when he was for a I while, asleep?” conscious little “Have been There was evi- good his dence that health was and there was no evidence that he physical any indisposition suffered using even was these soda immediately inquiries mint tablets before the accident. His here mentioned are not respondent’s with inconsistent contention that the employment. accident out his Appellants suggest arose also that length driving of time he had been shows that his of speed rate great enough was not cause to car him lose control of the in cross- ing the culvert hump -given or the in the road. This cannot be serious just consideration because not the evidence did disclose how farm, the accident soon occurred after he left Skinner and even determining if it had no way there would be his rate gpeed particular point at this in However, clearly ap- road. does pear place proceed- that the accident occurred while he was at a ing required employment. the manner his ¥e think there was evidence both competent substantial and that the accident arose out of and employment. in the course of his v. Chevrolet Motor [Leilich 605.]
Appellants powers also claim that the commission exceeded its making larger $10,000. contingent award amount than Sev- eral are contentions made under this head. legislative first limit
It is that it was the intent “to insisted weekly recovery in such com cases to times the maximum any ease,” weekly wage pensation particular allowable that $20, allowed should not total should not exceed All plus expenses. funeral $6000 exceed allowable medical and parties agreed employee’s salary before the that the commission year immediately preceding $3231.45. Accord the accident wage ingly, average weekly for the the commission determined average year multiplied this per $62.14 to be cent of 2/3 weekly single wage by making total amount of the death $12,428, respondent at the paid benefit which ordered benefit was dependent’s prior 621.4 per $20 rate week for weeks or until remarriage. The identical contentions made here were Wahlig presented Krenning-Schlapp overruled Grocer Co. 133; (2d) 128, 132, Murray al., 325 et Marshall- 35, 36, Hughes Co., 34 W. S. and Leilich v. *7 112, 601, 605, 606, Chevrolet Motor and in we the announced those cases. adhere to doctrine urged Legisla of It is also that it never was the intention the injured employee dependents or his under ture- to award the Com money damages pensation they or or Act more than he would be statutes, common or entitled to at law under the and that the de pendent’s recovery in this instance should be limited to the amount recovery negligent party employer’s of the from a third under the subrogation 1929, provided 3309, Section Revised Statutes in. statute, $10,000- 3262, provided as in the death Section not to exceed argument recently 1929. Revised Statutes The same made and opinion City properly we in an able of the Kansas think overruled Wrecking Gayhart al., 49 Appeals Monarch Co. et Court of in v. 265, App. S. W. argument unconstitutionality
In appellants’ the course of the limiting single death Compensation Act in not the benefit $10,-000 suggested deprives is and is asserted that the act these it negligent process against party. ap due a third This appellants of question, hav pears only and mention of such a and to be the first now be ing timely not been raised it cannot considered. [Hohlstein Roofing Co., 573, v. 328 Mo. St. Louis 899.] jurisdiction all assert that this court has on parties While $7500, dispute in a ground that amount in is excess it is al., In Hensler v. Stix et proper matter for our determination. 894, dispute amount in 239, 84 S. W. we held that “the 238, from,” judgment and appealed appeal on such is the amount although general rule, in ex State is of the such the usual statement 85, S. Reynolds, perhaps 151 W. it is 245 Mo. rel. juris accurately dispute which the amount in more said that the ‘‘ by the is determined amount appellate of the fixed- is diction parties, appeal, on actually dispute in that remains between legal subject appellate court of determination and ’’ ap A the rule questions graphic statement raised the record. S. W. 1049 223 Mo. pears Schwyhart Barrett, in damages in and (italics ours) brings : suit for states plaintiff a “If sues, if he cast and which he is suit his.petition the amount for say that the amount there go petition appeals, we back to the in such case plaintiff If should dispute. claimed the amount appeals the defendant amount recover certain judgment. of the The amount dispute is the the amount then in filing petition, of of the dispute in the is that of the one case date the other it is that of the rendition of the judgment, and in either dispute the amount in dispute case is the amount which the could that been at date have settled The final award commission as death benefits this case was as follows: Shroyer
“To Jessie R. per $20.00 sum week for 621.4 weeks.* remarriage.” “*or prior until
The appealed recites, among here things, other adjudged that is therefore “ordered rulings, find- ings and final Compensation the Missouri Workmen’s Com- hereby approved mission in this cause be same and the are and af- firmed, Shroyer, dependent, respondent that Jessie R. herein, have and recover of from Missouri Livestock Commission Com- pany, a corporation, employer, and indemnity Hartford Accident & Company, corporation, insurer, appellants herein, the sum- of twenty-eight ($12,428) twelve thousand four hundred pay- dollars twenty ($20) per able dollars week for 621.4 the-prior weeks until *8 remarriage death or of dependent.” said foregoing
From the apparent is dispute that the amount in when the was appeal- $12,428 rendered and the taken was single awarded as “a total benefit” payable and made in in provided (b) stallments as in subsection Section 3319, Revised might Statutes 1929. The that possibility this amount thereafter by remarriage dependent be reduced the death or of the would ob viously change actually not the that was in dispute amount at the time the appeal was rendered the allowed to court. this 486, Stuart, (2d) In Stuart v. 320 8 488, Mo. S. W. is 613, it well jurisdiction said that “such appear appeal must so at the time the taken; nothing may subsequently that occurs be either invoked jurisdiction appeal falling to confer or to show that the was with one jurisdiction.” By reasoning in our same course of it follows subsequent possibility happening that the mere of the of an event actually that would reduce the in dispute amount at the time the appeal deprive $7500- was taken to or would less not this court of pecuniary ground jurisdiction shown the amount then in jurisdiction dispute. question We have entertained without in simi Co., cases v. Atlantic & Pacific Tea 331 lar such as Schulz Great Mo. 126; 56 616, (2d) Skinner, 760, W. v. 330 51 S. W. S. Brauch Mo. 27; (2d) (2d) Higgins 493, v. 328 41 Co., Heine Boiler Mo. S. W. 565; Co., 112, (2d) 601; 328 Leilich v. Chevrolet Motor Eternit, Kren Cassidy 342, Wahlig S. W. Grocery (2d) 128; Dough Co., 325 Mo. S. W. ning-Schlapp erty v. Manhattan Rubber suggested in case the commutable may
It the instant be that real rather the sum the installments value than total and the judgment was rendered dispute at the time the in amount would be de- commutable value taken, and that such appeal was stated jurisdiction. Under the rule above appellate terminative Barrett, so if the em- undoubtedly would be Schwyhart v. this dispute and there settle the then absolute to ployer had the judg- of the lump the commutable value payment in a sum of Statutes However, Section Revised ment installments. power that the com- compensation vests governing commutation of exercised, party, with due “upon application of either mission be to will such commutation be for other, appears if it notice to the dependents the deceased employee or the best interest expense hardship to will undue or undue employee, that it avoid or dependent or is employee or has removed party, that such either or employer has States or that remove the United about to greater part of his business or disposed of the sold or othei’wise determining “In as follows: This section further reads assets.” will asked for be for the best interest of the commutation whether employee, or so that dependents of the deceased employee or party, expense hardship undue to either undue it will avoid constantly it is the intention of will bear mind that commission wages in lieu compensation payments are chapter that this injured dependents are to be received Therefore, wages ordinarily paid. which are manner in the same payment departure from the normal method is a commutation only clearly appears that some unusual allowed when it and is to be departure.” 3347, Revised such a Section circumstances warrant “ pertinent, On notice far as here reads: in so Statutes court, may permit employer commission or parties the other any liability agreement, discharged under award or from further be *9 by depositing ... the commutable judgment compensation for persons be disbursed to -the en- with the commission to value thereof shall determine.” manner as the commission titled thereto such both sections the latter sec- give full force and effect to In order to may meaning that the commission court as tion must be construed discharged by depositing the employer bé commutable permit the judgment compensation” as “agreement, value of the compensation only in where commutation of provided therein cases appears duly commission. It thus been ordered has has absolute to settle employer nor the an neither the compensation” upon “agreement, judgment award or party In neither made basis of its commutable value. this instance commuting compensa- application commission for an order any such commission neither made order nor allowed and the tion
.1229 any such Hence, authorized the commutable value of the settlement.. jurisdiction appellate is not determinative of in this case. For the reasons above stated the is affirmed.
. foregoing opinion by PER CURIAM: —The J., .adopted Atwood, opinion bane. All as the en concur. Relator, Eugene Crutcher, L. at the relation of
State Missouri City St. Louis. v. Edmond as Collector of the Koeln, 61 S.W.(2d) Banc, 16, 1933.
Court en June