Bull v. S. Patti Const. Co.

• Court: Kansas Supreme Court
• Writing for the Court: WEDElL, Justice.
• Citation: Bull v. S. Patti Const. Co., 152 Kan. 618, 106 P.2d 690 (Kan. 1940)
• Decision Date: 09 November 1940
• Docket Number: 35068.
• Parties: BULL v. S. PATTI CONST. CO. et al.

106 P.2d 690

152 Kan. 618

BULL v. S. PATTI CONST. CO. et al.

No. 35068.

Supreme Court of Kansas

November 9, 1940

Syllabus by the Court.

The purpose of statute providing that written claim for compensation be delivered to employer within 120 days after accident was to give notice of claim to employer within such time as would enable employer to make necessary investigation of alleged injury for employer's own protection. Gen.St Supp.1939, 44-520a.

The purpose of statute providing that written claim for compensation could be delivered to employer by registered mail within 120 days after accident was to eliminate endless confusion, uncertainty, and conflict as to whether claim actually had been made by mail and to eliminate numerous questions of waiver of claim. Gen.St.Supp.1939, 44-520a.

Under statute providing that written claim for compensation be delivered to employer within 120 days after accident personal signature of injured workman was not mandatory and workman could authorize attorney to file claim notwithstanding that workman is naturally the one expected to make the claim. Gen.St.Supp.1939, 44-509 (a), 44-520a.

An injured workman, who told his wife to try to get whatever workman had coming, vested wife with full authority including right to select lawyer of her own choice for husband, and wife or attorney selected by her had authority to make compensation claim. Gen.St.Supp.1939, 44-520a.

Provisions of compensation law permitting informal compliance are given a liberal construction to the end that the rights of the parties may be fairly protected. Gen.St. 1935, 44-501 et seq.

The duration of disability or incapacity of injured workman need not be established by medical testimony.

Evidence warranted finding of 20 weeks' compensable temporary total disability followed by 10 weeks' 25 percent. partial disability of the great toe. Gen.St.Supp.1939, 44-510(3) (7, 19).

1. Section 3, chapter 213, of the Laws of 1939 (G.S.1939, Supp. 44-520a), construed and held: While the law contemplates a claim for compensation will be made by the injured workman, the statute does not make his personal signature mandatory and such claim, otherwise sufficiently and timely made, will not be defeated simply upon the ground it does not bear his personal signature, when it does bear the name of claimant and his attorney, and is signed by an attorney duly authorized and directed to do whatever may be necessary to collect the award.

2. In this state, unlike some states, it is not essential that duration of disability or incapacity of an injured workman be established by medical testimony.

3. The record in a compensation case examined and held, the award of the district court cannot be set aside on the ground the record contains no substantial evidence to support the finding of twenty weeks' compensable temporary total disability followed by ten weeks' twenty-five percent partial disability of the great toe.

Appeal from District Court, Wyandotte County, Division No. 3; Harvey J. Emerson, Judge.

Proceeding under the Workmen's Compensation Law by George M. Bull, employee, opposed by the S. Patti Construction Company, employer, and the Employers Mutual Liability Insurance Company, insurance carrier. From a judgment awarding compensation to the employee, the employer and insurance carrier appeal.

Blake A. Williamson, James K. Cubbison, and Lee Vaughan, Jr., all of Kansas City, for appellants.

A. M. Etchen, of Kansas City, for appellee.

WEDElL Justice.

This was a workmen's compensation case. Claimant prevailed and the employer and insurance carrier appeal. Appellants contend there was no substantial evidence to support the finding a written claim was made as required by law or to support the award of the district court.

Touching the first alleged error, appellants stoutly maintain the written claim for compensation was not made by the injured workman, George M. Bull, personally, and hence did not constitute a valid claim. The signature to the claim was: "George M. Bull, by A. M. Etchen, his attorney." On the dates the claim was signed and filed, claimant was an inmate of a penal institution in Milan, Michigan. Claimant's wife consulted with A. M. Etchen. According to the record counsel for claimant testified:

"I think Mrs. Bull came to see me possibly a few days before that date (i. e., of the written claim dated October 26, 1939) I don't know whether I have a written contract (of employment) or not. He was not there at the time and she came to me there and had me do this--that is, she consulted with me and I advised her to do that and so she authorized me to go ahead and do it. I am not sure Mr. Bull ever authorized me to send that letter in his behalf.

"I think he wrote me a letter, I'm not sure, or wrote her a letter to that effect. I don't think I have that letter, and I don't have a copy of a contract."

Claimant was present at the hearing. The record, touching authorization to act for him, reads:

"Q. Mr. Bull, did you authorize Mr. Etchen as your attorney to write correspondence or serve a notice upon the Patti Construction Company about your accident? A. Did I write him?

"Q. Yes? A. I told my wife to go ahead with it. I wrote to my wife and told her to go ahead with it--I don't remember when it was. Maybe September or October. I told her if I had anything coming to try and get it. Some words of that sort."

Appellants contend G.S.1939 Supp. 44-520a, and the decisions of this court, make it mandatory the claim be made personally by the workman except in one instance mentioned in G.S.1939 Supp. 44-509(a), which extends the right to a guardian to make the claim in the event of mental incompetency of the workman or a dependent of the workman. It is true the latter statute authorizes the guardian to make the claim in the event of mental incompetency and when the dependent is a minor. Does it, however, follow that during the mental competency of the workman, he must personally sign the claim and that he can in no event authorize an attorney to act in his behalf? We have no decision squarely in point. The answer must be found in the statute. The pertinent portion of section 3, chapter 213, Laws 1939, reads: "No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within one hundred twenty days after the accident, ***." G.S.1939 Supp. 44-520a. The only change in the 1939 act is that time for making claim was thereby extended from 90 days to 120 days. It will be observed the statute does not provide the claim must be made personally by the workman. It merely provided "no proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served," etc. The statute, however, does specify upon whom the claim shall be served by specifically naming the employer or his duly authorized agent. The purpose of that provision and the requirement that it be made within a specified time is obvious. That purpose was to give notice of the claim to the employer and to give it within such time as would enable the employer to make the necessary investigation of the alleged injury for his own protection. The statute also specifies the exact manner in which the claim shall be made when not made by personal delivery to the employer or his duly authorized agent. When not so made it permits delivery of claim by registered mail. The latter provision relative to service by registered mail was enacted in order to eliminate endless confusion, uncertainty and conflict as to whether claim actually had been made by mail and to eliminate numerous questions of waiver of claim. Klein v. McCullough, 135 Kan. 593, 597, 11 P.2d 983. True, it has been held express statutory requirements as to time and the manner of making claim upon the employer or his duly authorized agent, are preliminary to the right of recovery and are therefore imperative. A few of the decisions, cited by appellants, which state the principle and discuss the reasons therefor, are: Klein v. McCullough, supra; Suttle v. Marble Produce Co., 140 Kan. 13, 16, 34 P.2d 116; Flanagan v. Lux, 141 Kan. 88, 92, 40 P.2d 458; Graham v. Pomeroy & Graham, 143 Kan. 974, 975, 57 P.2d 19. These decisions are not directly in point and do not support appellants' contention. We find nothing in the statute or in our decisions which in words or principle militate against the right of an injured workman to authorize an attorney to file a claim in his behalf.

Appellants quote from the Flanagan case, supra, as follows: "The injured party is generally referred to in the Compensation Act as the 'claimant,' and, as the word indicates, he is naturally the one expected to make the claim, although that part of the statute above quoted does not so state, but in the concluding part of said section it is specifically stated that if the claimant has been under disability, the time shall not begin to run until the removal of such disability." 141 Kan. pages 91, 92, 40 P.2d page 461. In the Flanagan case it was held a letter written by the compensation commissioner, at the request of claimant's doctor, to the contractor to obtain for the doctor the report of the accident and to ascertain the name and address of the insurance carrier in order that the doctor might communicate with the insurance carrier concerning the question of medical expenses, did not constitute a written claim of the workman for compensation. The letter by the doctor was written without the knowledge or consent of the injured workman. In the instant case claimant testified: "I told...