Bliss v. Lungstras Dyeing & Cleaning Co.

• Decision Date: 28 June 1939
• Docket Number: No. 25142.,25142.
• Citation: 130 S.W.2d 198
• Court: Missouri Court of Appeals
• Parties: BLISS v. LUNGSTRAS DYEING & CLEANING CO. et al.

130 S.W.2d 198

BLISS v. LUNGSTRAS DYEING & CLEANING CO. et al.

No. 25142.

St. Louis Court of Appeals. Missouri.

June 28, 1939.

Appeal from St. Louis Circuit Court; Max G. Baron, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Jasper Bliss, employee, opposed by the Lungstras Dyeing & Cleaning Company, employer, and the Consolidated Underwriters, insurer, for rehearing and review of an award on agreement entered by Workmen's Compensation Commission in favor of employee. From a judgment reversing a final award of the Commission in favor of employer and insurer, employer and insurer appeal.

Reversed and remanded with direction to enter judgment affirming award of the Commission.

Fordyce, White, Mayne, Williams & Hartman and G. Carroll Stribling, all of St. Louis, for appellants.

Henry S. Janon, of St. Louis, for respondent.

HOSTETTER, Presiding Judge.

This action is based on an application for a rehearing and review filed by Jasper Bliss, the employee, on the 17th day of August, 1935, in which he sought to have the Missouri Workmen's Compensation Commission review an award on agreement entered by the Commission on the 12th day of May, 1934.

The employee was originally injured on June 26, 1933, when his left leg and arm were broken and he also suffered some injuries to his head. Liability for the injuries resulting from the accident was not denied by the employer or its insurer. Compensation was paid for sometime. Later, on May 7, 1934, a conference was held between Mr. E. B. Simpson, an attorney for the insurer, Consolidated Underwriters, Jasper Bliss in person, and Mr. James H. Burton, an attorney in the employ of the Missouri Workmen's Compensation Bureau charged with the duty of rendering legal aid and service to claimants and parties in compensation proceedings.

At this conference, Bliss, the employee, and the employer and insurer, reached an agreement upon the amount of disability which the employee had suffered as a result of the accident, and, on May 8, 1934, signed a final agreement with reference to the same upon a form furnished by the Commission, which is known as a "Final Agreement and Report of Facts". This form contained a statement of the facts with reference to the happening of the accident as agreed upon and found that the employee should be paid compensation for permanent partial disability for a period of 59 weeks at a compensation rate of $19.19 per week.

The agreement showed on its face that the case was "settled by agreement and conference with employee and Mr. Burton", and that the figure of compensation of 59 weeks had been arrived at upon the basis of a finding that the employee had suffered a 20 per cent loss of the use of his left leg at the hip and a 11 per cent loss of the use of his left hand at wrist.

This agreement was signed by Jasper Bliss, the employee, himself, and by E. B. Simpson, attorney for employer and insurer, and was filed with and approved by the Workmen's Compensation Commission on May 12, 1934, and on said date the Workmen's Compensation Commission made its award based on the agreement between the employee and the employer and insurer for medical aid as provided by Section 3311, R.S.Mo.1929, Mo.St.Ann. § 3311, p. 8246, and also for partial permanent disability in the sum of $19.19 per week for 59 weeks, each of said payments to begin June 27, 1933.

At that time employee had already received a number of payments, leaving a balance of $249.47 due the employee under the terms of the Commission's Award on Agreement. Accordingly, on May 21, 1934, the employer and insurer paid to the employee the sum of $249.47, being the entire balance due under the Award on Agreement, and at the time of the payment the employee executed and delivered to the employer and insurer a Final Report and Receipt for compensation upon the regular form provided by the Commission. This document provided that in consideration of the payment made at that time, together with payments already made, the employee "hereby releases and discharges Lungstras Dyeing & Cleaning Company from all liability under the Missouri Workmen's Compensation Law, by reason of said accident, subject to review as provided by said law". No payment of compensation was made thereafter by the employer and insurer nor was any medical service rendered thereafter.

Over one year later, on August 17, 1935, the employee filed his present Application for Rehearing and Review. The application for rehearing and review originally filed by the employee was on the regular printed form furnished by the Commission, and recited that "as provided in Section 42 of the Missouri Workmen's Compensation Act (R.S.Mo.1929, § 3340, Mo.St.Ann. § 3340, p. 8273), and on the ground of a change in condition, the undersigned hereby makes application to the Missouri Workmen's Compensation Commission for a rehearing and review of the award, order or decision made in the above accident, under date of May 12, 1934."

In the application, under the heading "Nature of Change of Condition", employee stated the following: "Left knee is immobile and has a greater degree of disability and loss of use; calf of left leg is immobile and stiff and has a greater degree of disability and loss of use; left arm and wrist is immobile and stiff and has a greater degree of disability and loss of use."

Shortly thereafter, the employer and insurer filed a motion to dismiss the application, alleging that the Commission had no jurisdiction to review the award. Later, at the time the case came on for hearing before the Honorable Orin H. Shaw, member of the Commission, the employee was granted permission to add to the formal application previously filed, a written memorandum, the Commission agreeing that it might become attached to the record and considered as a part of the application. The statement so added to the original application purported to be a motion to set aside the "Final Receipt and Final Release", on the ground alleged, that "there was a mutual mistake of law and fact between the employee, the employer and insurer as to the law and the legal effect of executing `said receipt and release', in that the parties agreed and understood that such receipt and release would not bar the employee from obtaining further compensation in the event that the injuries and disability of the employee became changed, aggravated or worse, at any time during the lifetime of the employee."

This application further set out that the Receipt and Release was executed in reliance upon "such mistaken view and understanding of the law" which was "mutual between all the parties hereto", and the "employee did not know...