Brown v. Chicago, Rock Island & Pacific R.R. Co.

• Decision Date: 09 November 1936
• Docket Number: No. 18697.,18697.
• Citation: 98 S.W.2d 129
• Court: Missouri Court of Appeals
• Parties: BRUCE BROWN, RESPONDENT, v. CHICAGO, ROCK ISLAND & PACIFIC R.R. CO., APPELLANT.

98 S.W.2d 129

BRUCE BROWN, RESPONDENT, v. CHICAGO, ROCK ISLAND & PACIFIC R.R. CO., APPELLANT.

No. 18697.

Kansas City Court of Appeals. Missouri.

November 9, 1936.

Appeal from Circuit Court of Caldwell County. — Hon Ira D. Beals, Judge.

AFFIRMED.

Platt Hubbell for respondent.

Luther Burns, Conrad & Durham, Hale Houts and I.M. Lee for appellant.

CAMPBELL, C.

This is a compensation proceeding. The record discloses that plaintiff was injured on December 21, 1930; that on March 4, 1931, the defendant filed with the Workmen's Compensation Commission a report of the accident; that on March 30, 1931, the defendant wrote to the commission that it "has made an effort to get Mr. Brown to accept compensation, but he refuses to do so. Under the circumstances, would it not be in order for the commission to set this case for hearing with a view of having award of compensation made?" The commission complied with the request, set the matter for hearing on June 11, 1931, and gave both plaintiff and defendant due and timely notice of the hearing. At the time fixed by the commission the defendant appeared and introduced evidence showing that plaintiff was entitled to compensation. The plaintiff, however, did not appear nor participate in that proceeding. The commission, on June 15, 1931, made an award as follows:

"The above parties having submitted their disagreement or claim for compensation for the above accident to the undersigned Referee of the Missouri Workmen's Compensation Commission, and after hearing the parties at issue, their representatives, witnesses and evidence, the undersigned hereby finds and awards temporary or partial compensation for said accident in favor of the above employee (or dependants) and against the above employer and insurer as provided in the Missouri Workmen's Compensation Act, as follows:

"For temporary total disability at the rate of $16.27 per week from December 21, 1930, to and including June 11, 1931, and thereafter until such disability shall cease, but in no event to exceed 400 weeks with the right in either party to apply for a modification thereof at any time.

"Each of said payments to begin as of December 21, 1930, and to be payable and be subject to modification and review as provided in said Act.

"This award is only temporary or partial and is subject to further order, and the proceedings are hereby continued and the case kept open until a final award can be made. If this award be not complied with, the amount hereof shall be doubled in the final award, if such final award is in accordance herewith."

The plaintiff did not file with the commission a claim or statement of any kind until on December 11, 1933, when he filed a verified claim stating therein the facts concerning the accident, the making of the award of June 15, and that he was permanently and totally disabled and prayed the commission to make a reasonable and proper disposition of his claim. Notice of the time and place of the hearing of the claim was duly served upon both plaintiff and defendant. Upon a hearing before a referee the defendant filed a plea to the jurisdiction of the commission upon the ground that plaintiff had lost whatever right he had to compensation because he had failed to file a claim therefor within six months after the date of the accident. The plea was overruled, the matter heard, and plaintiff awarded compensation "of 71.2 weeks of compensation at $16.33 a week or a total of $1162.70." The award of the referee was affirmed upon review by the commission. From that award the defendant appealed to the circuit court. The circuit court affirmed the award and the defendant has appealed to this court.

The defendant contends that the commission was without jurisdiction to make the final award because the employee, plaintiff, failed to file a claim with the commission within six months after his injury and that the commission did not obtain jurisdiction to make the award by reason of the defendant's report of the accident in March, 1931; or by reason of the request of the defendant to the commission to have the matter heard; or by reason of the defendant appearing and participating in the hearing on June 11, 1931.

The report made by the defendant to the commission stated every essential fact necessary to show that plaintiff was entitled to compensation. The defendant appeared at the hearing on June 11 and introduced evidence tending to show that the commission, provided it had jurisdiction of the cause, was in duty bound to make the award. The single question presented on this appeal is whether or not the commission, under the facts of record, had power to make the award of June 15.

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