MRS. WILLIAM G. (EMMA ROSE) SLEYSTER v. EUGENE DONZELOT & SON and UNION INDEMNITY COMPANY, Appellants
Division One
September 13, 1929
20 S. W. (2d) 69
The arrangement with the Missouri Pacific Railway Company must be regarded as merely a private сontract entered into by the Company largely for the benefit of its own members; it was not pursuant to any profession of public service on its part expressly, or impliedly, made.
From what has been said it is apparent that the Public Service Commission is without jurisdiction of the Company, in so far as its relations with its members are concerned: its order is too broad in other respects. The judgment appealed from is therefore reversed and the cause remanded to the Circuit Court of Cole County with directions to that court to enter a judgment annulling the order. All concur.
Sears Lehmann for respondent.
LINDSAY, C.—The controversy herein arose under the provisions of the Act of 1925 (Laws 1925, p. 375) known as the
“The employee‘s widow and dependent contends she is entitled to death benefit amounting to $11,538 plus medical and funeral benefit. Insurer contends that total death benеfit amounts to the sum of $6,000 plus medical and burial benefit.”
The respondent, in her claim filed with the Commission, asserted that she was “entitled to receive two-thirds of the average weekly salary of the deceased, multiplied by 300, payable in weekly installments of $20 per week, with no limitation as to the number of weeks the total benefit is to be paid.” She also claimеd “funeral benefit.” The appellants by their answer before the Commission denied that the claimant was entitled to receive two-thirds of the average weekly salary of the deceased multiplied by 300 payable in weekly installments of $20, with no limitation as to the number of weeks, or a total of $11,502 plus; and, contended that under the law she was entitled to a totаl award of $6,000 computed upon the basis of sixty-six and two-thirds per cent of the average weekly earnings, with a maximum of $20 per week, multiplied by 300, plus
“For burial expenses, the sum of $150. For death benefits to Emma R. Sleyster, widow, the sum of $20 per week for 575 weeks. Until prior death or remarriage.”
The award further provided:
“Each of said payments to begin as of January 25, 1927, and to be payable and to be subject to modification and review as provided in said act.”
An appeal from the award was taken to the Circuit Court of the City of St. Louis by the employers and the insurer, the Union Indemnity Company, and the same was considered by the court upon the record made bеfore the Commission. There was no dispute as to the facts. The circuit court found that the respondent “was entitled to compensation for burial expenses in the sum of $150; also death benefit in the sum of $20 per week for 575 weeks in the sum of $11,500, making in the aggregate the sum of $11,650” and adjudged that the finding of the Commission be approved and confirmed.
The appellаnts in their motion for a new trial complained that the judgment of the court was against the law and against the evidence, and against the law under the evidence; and averred thаt the court should have found that the claimant was entitled to compensation for the death of her husband in the sum of $20 per week for a period of 300 weeks, or the aggregаte sum of $6,000, and averred also that the judgment of the court affirming the award of the Commission was excessive in allowing claimant for burial expenses the sum of $150, and for death benefits thе sum of $20 per week for 575 weeks until prior death or remarriage, and that the court by its judgment should have allowed the claimant the sum of $150 for burial expenses, and the sum of $20 per weеk for 300 weeks until prior death or remarriage. The motion was overruled and appellants were allowed an appeal to this court.
The case calls for a сonstruction of the terms of the act, particularly Section 21. By Subdivision 1 of that section it is provided that “on the death or remarriage of a widow, the death benefit shall ceаse unless there be other dependents entitled to any unpaid remainder of such death benefits under this act.” There are no such here.
At the outset we are confronted with thе question whether this court has jurisdiction of the appeal. No constitutional question is raised. The judgment is one for money, and to be satisfied by the payment of money. The courts оf appeals have jurisdiction over appeals in all cases where the “amount in dispute,” exclusive of
In City of St. Joseph v. Georgetown Lodge, 8 S. W. (2d) 979, 1. c. 982:
“While neither party has questioned our jurisdiction herein, or raised such question by their briefs, nevertheless, we have rеpeatedly and uniformly held that jurisdiction cannot be conferred upon this court by the mere consent, acquiescence, or silence of the parties. [In re Tannory, 297 S. W. 967; State ex rel. v. Sims, 309 Mo. 18; Springfield Southwestern Ry. Co. v. Schweitzer, 246 Mo. 122; Vandeventer v. Bank, 232 Mo. 618.] We have likеwise uniformly ruled that this court sua sponte, will raise the question of our jurisdiction, for the all-sufficient reason that no court should proceed to judgment in a cause or procеeding unless it has jurisdiction.”
Citation of numerous cases was made in support of such ruling.
It is plain from the record that the amount in dispute here, is not the sum of $11,650 to be paid in installments of $20 pеr week for 575 weeks; but, that the amount in dispute here, is the difference between the sum allowed, and the sum which appellants all of the time have conceded should be allowed,—the difference between $11,650 and, $6150, or, $5500.
In State ex rel. Lingenfelder v. Lewis, 96 Mo. 146, it was said at page 148:
“The amount in dispute by which the jurisdiction of the appellate court is to be determined is not necessarily fixed by the amount of the judgment аppealed from (State ex rel. v. Court of Appeals, 87 Mo. 569), nor by the amount claimed on the cause of action sued upon (Kerr v. Simmons, 82 Mo. 269), but by the amount that remains in dispute between the parties, on the appeal, and subject to determination by the appellate court of the legal questions raised on the record to ascertain which, the appellate court is not confinеd to an examination of the judgment only, or the pleadings in the case, but may look into the whole record.”
In Pittsburg Bridge Co. v. St. Louis Transit Co., 205 Mo. 176, it was said, 1. c. 179:
“In determining the amount in dispute we may look within the mere shell of the plеadings and judgment—the mere colorable amount in dispute—and seek out the real amount. [Vanderberg v. Gas Co., 199 Mo. 455.] In that case it was said: ‘Frequently the amount in dispute is materially affected by eliminating items and elements at the trial, and the record shows this. Would it not be an act sounding to folly for us to say that, for the purposes of jurisdiction on appeal, we must continue to considеr such eliminated matters?‘”
Further on in the opinion other cases are cited in support of the view that this court may, indeed, should look into the record, and ascertain the “real amount in dispute,” and determine the question of appellate jurisdiction accordingly. What was said in Lingenfelder v. Lewis was quoted with approval.
Appellate jurisdiction in the instant proceeding is not in this court. Section 44 of the Act (Subdivision 4) provides:
“Appeal from the circuit court shall be allowed the same as in civil actions.”
The amount in dispute determines the appellate jurisdiction. The cause is therefore transferred to the St. Louis Court of Appeals for determination. Seddon and Ellison, CC., concur.
PER CURIAM:—The foregoing opinion by LINDSAY, C., is adopted as the opinion of the court. All of the judges concur.
LINDSAY, C.