Summary
In Wilkerson v. Potashnick, Mo. App., 226 S.W.2d 402, this court held that the burden of proof is upon the party claiming the applicability of the act to bring himself under it.
Summary of this case from McCaleb v. Travelers Indemnity CompanyOpinion
No. 6858.
January 18, 1950.
APPEAL FROM THE CIRCUIT COURT OF SCOTT COUNTY, R. B. OLIVER, III, J.
Robert A. Dempster, Sikeston, for appellant.
Bailey Craig, Sikeston, for respondent.
This is an appeal, by Joe A. Wilkerson, claimant, from a judgment of the Circuit Court of Scott County, Missouri, affirming an award of the Workmen's Compensation Commission, denying compensation.
The claim was filed May 15th, 1947, alleging claimant was injured April 5th, 1947, while doing carpenter work on a building as an employee of Ray H. Bradshaw and Gene Potashnick. The alleged injury was caused by a falling block striking claimant on the foot.
October 28th, 1947, a hearing was had before a referee who awarded claimant $273.00. Application for review was filed and heard by the full Commission resulting in an award denying compensation and holding that the Commission had no jurisdiction to hear the claim. Claimant appealed to the Circuit Court of Scott County, Missouri, where, on March 14th, 1949, the award was affirmed. Claimant appealed to this court.
The only issue presented to this court is, does the evidence bring the employers under the terms of the Workmen's Compensation Law, Mo.R.S.A. § 3689 et seq.?
The burden of proof is upon the party claiming the applicability of the act to bring himself under it. Kemper v. Gluck, 327 Mo. 733, 39 S.W.2d 330, 333.
The evidence shows that Gene Potashnick was having a cinder block building erected just outside the city limits of the City of Sikeston, Scott County; Missouri; that he employed Ray H. Bradshaw to assist in the work. Claimant was paid by Bradshaw. Claimant says that he was nailing up rafters on the day of the injury and a wind blew the coping off the rear of the building causing a block to fall and hit his leg.
There is no dispute that claimant was injured. There is no dispute that he was employed by defendants, Ray H. Bradshaw and Gene Potashnick, so far as this appeal is concerned. There is no dispute that Ray H. Bradshaw and Gene Potashnick were minor employers and were exempt from liability under the Workmen's Compensation Law unless they have brought themselves within the Act by filing with the Commission, a notice electing to accept the same.
R.S.Mo. 1939, Sec. 3693, paragraph 5, Mo. R.S.A., reads as follows:
"Fifth: Employments by minor employers not determined to be engaged in an occupation hazardous to employees. Any employer in this section exempted from the operation of sections 3690, 3691 and 3692 of this chapter may bring himself within the provisions of this chapter by filing with the commission notice of his election to accept the same, and by keeping posted in a conspicuous place on his premises a notice thereof to be furnished by the commission, and any employee entering the services of such employer and any employee remaining in such service thirty days after the posting of such notice shall be conclusively presumed to have elected to accept this chapter unless he shall have filed with the commission and his employer a written notice that he elects to reject this chapter."
Appellant attempts to show that Gene Potashnick accepted the Act by filing a notice with the commission in 1931 while he was engaged in the trucking business.
The acceptance notice was made by Gene Potashnick, individual, whose address was given as Sikeston, Missouri, and his business was general trucking. The average number of employees was given as ten and the nature of the work of the employees was truck drivers — attendants. The notice was dated June 13th, 1931.
This was all the evidence offered by claimant to bring Gene Potashnick under the terms of the Act. Defendant, Gene Potashnick, testified that, at the time he elected to come under the Workmen's Compensation Act, he was engaged in the trucking business individually and that he took out insurance to protect himself in case of liability; that in 1932 or 1934 he was succeeded in the trucking business by others and ceased to be an employer and that he had not been an employer since.
Under this testimony the full commission made the following award:
"We find from the evidence that the employee failed to prove that either Gene Potashnick or Ray H. Bradshaw were at the time of the accident major employers. We further find from the evidence that Ray H. Bradshaw had not elected to come under the provisions of the Missouri Workmen's Compensation Law, and that Gene Potashnick had not accepted the provisions of the Missouri Workmen's Compensation Law as a minor employer in the construction business.
"This Commission, therefore, is without jurisdiction and compensation must be and is accordingly denied."
We find the award of the Commission is fully justified by the record. Affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.