Dauster v. Star Mfg. Co.

• Decision Date: 19 December 1940
• Docket Number: No. 25674.,25674.
• Parties: DAUSTER v. STAR MFG. CO. et al.
• Court: Missouri Court of Appeals

145 S.W.2d 499

DAUSTER v. STAR MFG. CO. et al.

No. 25674.

St. Louis Court of Appeals. Missouri.

December 19, 1940.

Appeal from Circuit Court, St. Louis County, Division No. 2; John A. Witthaus, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Archie Dauster, claimant, opposed by the Star Manufacturing Company, employer, and the Travelers Insurance Company, insurer. From an award granting compensation, the employer and insurer appeal.

Affirmed.

Jones, Hocker, Gladney & Grand and William G. O'Donnell, all of St. Louis, for appellants.

Max C. Nelson, of St. Louis, for respondent.

HUGHES, Presiding Judge.

This is a case under the Workmen's Compensation Act, Mo.St.Ann. § 3299 et seq., p. 8229 et seq. Claimant was injured on August 30, 1937, when a table, upon which had been placed 1,500 pounds of iron sheets, overturned and the iron sheets fell on him. He was working as a punch press operator for the employer, Star Manufacturing Company, but had only worked for this company two weeks when the accident occurred. As a result of the accident both of claimant's legs were fractured, and his arms were cut and bruised. It is admitted that claimant suffered injuries to his legs as the result of an accident in the course of his employment, and that as a result thereof he is permanently partially disabled. The final award of the Commission allowed claimant compensation for 300 weeks at the rate of $13.85 per week, or a total sum of $4,155, less a credit of $1,438.80, which the employer had already paid. The award was based on the finding that by reason of the injuries claimant had suffered permanent partial disability and thereby lost 75 per cent. of his ability to work and function as a normal man, because of multiple injuries to his legs. The Commission also made the following findings of fact and rulings of law: "We find from the evidence that employee sustained an accidental injury on August 30, 1937, which arose out of and in the course of his employment; that as a result thereof he sustained multiple injuries to his legs and is entitled to compensation for such disability to the extent of 75 per cent. of 400 weeks, or 300-week period as provided herein; that his wages were $1,080.00 per year or $20.77 for his average weekly wage, with his compensation rate at $13.85."

Appellants' counsel state the issues for which they contend clearly and fairly in their brief as follows:

"It is appellants' contention that in making this award the Commission acted without or in excess of its power, and further, that there was not sufficient competent evidence in the record to support this award.

"That claimant received a permanent injury to both his right and left legs is beyond dispute. Also, if two or more injuries constitute multiple injuries, then the claimant `sustained multiple injuries to his legs.' In its findings, however, the Commission failed to decide how much disability the claimant sustained in each leg, and only found that he lost 75 per cent. of his ability to work and function as a normal man. It is appellants' contention that such a finding is necessary to support any award in this case.

"The evidence is at variance as to the loss of use claimant sustained both to his right and his left leg. Dr. Alexander E. Horwitz testified that, in his opinion, the loss of use of the right leg at the knee was total, while that of the left leg at the knee was about 50 per cent. On the other hand, Dr. John Albert Key testified that the loss of use of the right leg at the knee was between 60 per cent. and 70 per cent., while that of the left leg at the knee was between 30 per cent. and 40 per cent. Since the Commission made no finding as to the separate loss of use of each leg, there is no conclusive finding on this important issue."

Claimant testified that he was employed with the understanding that his wages were to be 45 cents an hour and that including overtime he could make about $24 a week. He said that he had worked only two weeks when the accident occurred, that the first week he worked during five and one-half of the six work days, and an hour and one-half overtime, and the second week he worked five days. On cross-examination he said he made $3.60 a day, and one Saturday worked overtime.

The employer's assistant secretary and treasurer testified that claimant was employed on August 16, 1937, and worked until August 30th; that the pay record shows he was being paid 45 cents an hour for eight hours a day and four hours on Saturday, forty-four hours a week. That during four months of the year, November, December, January and February, the employer worked forty hours each week. That the employer operated throughout the year.

It will thus be observed that the real contention of appellant is that where an employee sustains a permanent partial loss of use of both legs at the knee, as in this case, compensation should be awarded separately for the injury to each leg, and in accordance with the schedule contained in Section 3315(a) for permanent partial loss of one leg at the knee, and said awards should run consecutively.

Section 3315(a), R.S.1929, Mo.St.Ann. § 3315(a), p. 8249, provides:

"(a) For permanent partial disability, in lieu of all other compensation, except that provided under section 3311 of this chapter [medical and hospital expenses], the employer shall pay to the employe 66 2/3 per cent of his average earnings as computed in accordance with section 3320, but not less than six dollars nor more than twenty dollars per week, for the periods hereinafter provided:

                Nature of Injury                     Weeks
                

* * * * *

                "34. Loss of one leg at or above
                       the knee * * *                  160
                

* * * * *

"For permanent injuries other than those above specified, the said compensation shall be paid for such periods as are proportionate to the relation which the other injury bears to the injuries above specified, but no such period shall exceed four hundred weeks. Such other injuries shall include permanent injuries causing a loss of earning power. * * *"

The contention of appellant is largely based on Section 3317(c), R.S.1929, Mo. St.Ann. § 3317(c), p. 8254, providing as follows: "If more than one injury in the same employment causes concurrent and consecutive permanent disability, compensation payments for each subsequent disability shall not begin until the end of the compensation period of the prior disability."

And so appellant, by way of illustration, claims that if as a result of the accident claimant lost 30 per cent. of the use of his left leg and 70 per cent. of the use of his right leg, he should receive as compensation 30 per cent. of 160 weeks, or 48 weeks for the permanent disability of his left leg, and when the period of 48 weeks expires he should receive 70 per cent. of 160 weeks or 112 weeks' compensation for the permanent disability of his right leg, or in all, he should receive 160 weeks of compensation.

The purpose of the Workmen's Compensation Act is not to provide indemnity for any pain, suffering or physical ailment, but is for loss of earning power and disability to work. Renfro v. Pittsburgh Plate Glass Co., Mo.App., 130 S.W.2d 165. This man suffered injuries to both legs, and while it might well be said that the injuries to the left leg standing alone would lessen his earning power 30 per cent., and the injuries to his right leg standing alone would lessen his earning power 70 per cent., yet, it does not follow when both legs are injured that for a term his earning power as a normal man is lessened 30 per cent. and then for a further term it is lessened 70 per cent. For illustration, in such a case the Commission might well find that while the injuries to...