Brocco v. May Dept. Stores Co.

• Decision Date: 20 December 1932
• Citation: 55 S.W.2d 322,227 Mo.App. 395
• Parties: CATHERINE BROCCO, WIDOW OF JOHN BROCCO, DECEASED, RESPONDENT, v. MAY DEPARTMENT STORES COMPANY, A CORPORATION (EMPLOYER), AND OCEAN ACCIDENT & GUARANTY COMPANY (INSURER), APPELLANTS
• Court: Missouri Court of Appeals

55 S.W.2d 322

227 Mo.App. 395

CATHERINE BROCCO, WIDOW OF JOHN BROCCO, DECEASED, RESPONDENT, v. MAY DEPARTMENT STORES COMPANY, A CORPORATION (EMPLOYER), AND OCEAN ACCIDENT & GUARANTY COMPANY (INSURER), APPELLANTS

Court of Appeals of Missouri, St. Louis

December 20, 1932

Appeal from Circuit Court of City of St. Louis.--Hon. A. D. Nortoni Judge.

Reversed and remanded.

Jones Hocker, Sullivan & Gladney and Willard A. McCaleb for appellants.

(1) The circuit court, in hearing and determining an appeal from the Workmen's Compensation Commission, is strictly a court of appeal. State ex rel. v. Haid, 38 S.W.2d 44, 48 (Mo Sup.); R. S. Mo. 1929, sec. 3342. (a) The circuit court is without authority or jurisdiction in such a cause to make independent findings of fact and to direct the Commission to make an award based thereon. Jones v. Century Coal Co., 46 S.W.2d 196; Harbour v. Gardner, 38 S.W.2d 295; Beecham v. Greenlease Motor Co., 38 S.W.2d 537; Simpson v. New Madrid Coal Co. (decided August 22, 192, not yet reported). (2) If the decree of the circuit court on the former appeal be construed as directing the commission to enter an award in favor of claimant, then it was in excess of the court's jurisdiction and powers, and is void. Jones v. Century Coal Co., supra, 46 S.W.2d 196, and cases cited; Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348; Quereau v. Lehigh Valley R. Co., 251 F. 986; People v. Simon, 119 N.E. 940; In re Pearson's Estate, 192 N.W. 937. (3) The findings and decree of the circuit court on the former appeal, properly construed so as to come within its jurisdiction and powers, required the commission to "take further proceedings," and what was done by the commission herein did not constitute "further proceedings" in any sense of the term. Further proceedings required a rehearing or retrial of the case. California Cas. Ind. Exchange v. Commission, 213 P. 257; Industrial Commission v. Fanganiello, 209 P. 803; Travelers Ins. Co. v. Lay, 146 S.E. 641; Shuler v. Midvalley Coal Co., 146 A. 146; Vorbnoff v. Nesta Machine Co., 133 A. 256, 259; Associated Employers' Reciprocal v. Ind. Com., 211 P. 491.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) The findings of fact made by the commission and certified and returned to the circuit court upon appeal to that court from the award of the commission were conclusive and binding as the facts upon which the award was made. Sec. 3342, R. S. 1929. (2) If, upon the facts found and certified to the circuit court by the commission, the judgment of the circuit court was proper, then it is immaterial whether the Commission correctly understood the law or erred in its conclusions of law. Hughes v. Ewing, 162 Mo. 261; Berthold v. St. Louis, etc., Construction Co., 165 Mo. 280, 304. (3) When the case was returned to the commission upon reversal of the previous award by the circuit court "for further proceedings not inconsistent with this decision and judgment" the case then stood before the commission as if it had never made an award and upon the previous appeal to the full commission from the award made by Commissioner Phillips. In that situation the commission was not required by law to further hear the case unless "deemed advisable," but had the right to make an award upon the evidence before it. R. S. 1929, sec. 3341. (4) The record made by the commission and sent up to the circuit court in its return made pursuant to the statute, so long as it stands, is conclusive and its recitals binding upon all parties and persons. State ex inf. Mayfield ex rel. Cook v. Dougan, 305 Mo. 383, 394-5; Carter v. Reynolds County, 315 Mo. 1233, 1238; Stewart v. City of Clinton, 79 Mo. 603; Kane v. School District, 48 Mo.App. 408.

BENNICK, C. Haid, P. J., and Becker and Daues, JJ., concur.

OPINION

BENNICK, C.

This is an appeal by the employer and insurer from the judgment of the Circuit Court of the City of St. Louis, affirming a final award of the Workmen's Compensation Commission. The parties are Catherine Brocco, the dependent widow of John Brocco, the deceased employee; May Department Stores Company, a corporation, the employer; and Ocean Accident & Guarantee Corporation, a corporation, the insurer.

This is the second appeal in the case, our first decision being reported in Brocco v. May Department Stores Company (Mo. App.), 22 S.W.2d 832. A kindred decision is that of the Supreme Court in State ex rel. May Department Stores Company v. Haid, 327 Mo. 567, 38 S.W.2d 44. Those decisions turned upon the question of the procedure to be followed in the circuit court looking to the timely perfection of an appeal from its judgment to an appellate court proper in a workmen's compensation case, and have no direct bearing upon the issue now before the court for determination. However, they are of more than the usual interest, not only for the purpose of showing the course which this particular case has run, but also for the part they have played in shaping the court procedure contemplated by the act.

Claim for the death benefit was filed with the commission on July 2, 1927, the claim alleging that the death of the employee, on May 25, 1927, was by accident arising out of and in the course of his employment, resulting from the inhalation of ammonia fumes while he was engaged in repairing a refrigerating system.

An answer was filed by the employer and insurer on July 8, 1927, denying generally each and every allegation made in the claim for compensation, and setting up specifically by way of defense that the death of the deceased was from natural causes, and not from injury.

With the issues thus joined, a hearing was had before Commissioner Phillips on July 29, 1927; and on August 18, 1927, he entered his award, the same being in favor of the claimant, and against the employer and insurer. In connection with the rendition of his award he made the specific finding that the death was by accident arising out of and in the course of the deceased's employment.

Thereafter an application for a review by the full commission was filed by the employer and insurer; and the parties were notified to appear before the commission on October 28, 1927, with such additional evidence as they might desire to offer. On the date stated, a second hearing was had; much additional testimony was taken; and on March 7, 1928, a final award was entered, setting aside and vacating the previous award, and finding in favor of the employer and insurer, and against the claimant. The basis of the award was the finding that the deceased had not sustained an accidental injury arising out of and in the course of his employment which contributed to or caused his death; and from such award Commissioner Phillips dissented.

In due course an appeal was taken by the claimant to the circuit court, wherein, on October 4, 1928, the award of the commission was reversed upon the grounds that the facts found by the commission did not support the award and that there was not sufficient competent evidence in the record to warrant the making of the award. The judgment of the court, in so far as it purported to direct the further progress of the case, was as follows:

"Wherefore, it is considered, adjudged, and decreed that the said award of the Missouri Workmen's Compensation Commission be and is hereby reversed, and the proceeding remanded to said Missouri Workmen's Compensation Commission for further proceedings and award not inconsistent with this decision and judgment . . ."

Then followed the former appeal of the employer and insurer to this court, and the mandamus proceeding in the Supreme Court, the ultimate result of all of which was to leave the judgment of the circuit court standing as if no appeal had been attempted to be taken from it.

So much for the history of the case antedating the time of its actual remand from the circuit court to the commission "for further proceedings and award not inconsistent with this (the circuit court's) decision and judgment."

Now when the case reached the commission for the further proceedings contemplated by the mandate of the circuit court, no notice was given the parties of the commission's intention to make a new award, and no further hearing was had; but on October 20, 1931, the commission, evidently using the evidence already taken as the basis for its evidentiary findings, entered its award, finding in favor of the claimant, and against the employer and insurer. Counsel for the claimant will question the propriety of our saying that no notice was given the parties of the commission's intention to enter an award and that no further hearing was had, but we are nevertheless stating the actual facts as they appear from the record of the cause, as we shall presently show. What counsel for the claimant are urging upon us as conclusive upon the question of what transpired are the apparently contrary recitals in the award itself (which is only a part of the entire record of the cause), to the following effect:

"The above parties having submitted their disagreement or claim for compensation for the death of the above employee to the undersigned members of the Missouri Workmen's Compensation Commission, and after hearing the parties at issue, their representative, witnesses, and evidence, the undersigned hereby find and award compensation for said accident in favor of the following dependents of said employee and against the said employer and insurer . . ."

The commission allowed the claimant compensation in the total sum of $ 6,271; and among its statements of fact and rulings of law recited that "this award is issued as per the opinion of the Circuit Court of the City of St. Louis."

Following the entry of such award, the employer and insurer, on October 28, 1931 filed...