Demay v. Liberty Foundry Co., 30153.
| Citation | 37 S.W.2d 640 |
| Decision Date | 31 March 1931 |
| Docket Number | No. 30153.,30153. |
| Court | United States State Supreme Court of Missouri |
| Parties | EMMA DeMAY, Appellant, v. LIBERTY FOUNDRY COMPANY and TRAVELERS INSURANCE COMPANY. |
v.
LIBERTY FOUNDRY COMPANY and TRAVELERS INSURANCE COMPANY.
[37 S.W.2d 641]
Appeal from Circuit Court of City of St. Louis. — Hon. Moses N. Sale, Judge.
[37 S.W.2d 642]
AFFIRMED.
John P. Leahy for appellant.
(1) The appellant was entitled to a trial de novo before the court sitting as a jury, and the court should have granted it. Secs. 10 and 28, Art. 2, Constitution of Missouri. (2) The Workmen's Compensation Commission is an inferior tribunal. Sec. 41, Laws 1927, p. 512; State ex rel. Brewen-Clark Syrup Co. v. Mo. Workmen's Compensation Commission, 8 S.W. (2d) 899. (3) A constitutional court of common law powers may not be shorn of the right to exercise original jurisdiction conferred upon it by the Constitution. Railroad v. Gildersleeve, 219 Mo. 170; State ex inf. Crow v. Shepherd, 177 Mo. 205; Dorrance v. Dorrance, 257 Mo. 325. (4) Section 44 of the act, Laws 1927, p. 512, is unconstitutional and void, in so far as it attempts to prevent the circuit court, on appeal from a decision of the Workmen's Compensation Commission, from hearing any additional evidence, and makes the findings of fact made by the commission within its powers conclusive and binding, and also restricting the power of said court to reviewing only questions of law and modifying, reversing, remanding for rehearing or setting aside the award of the commission on the four grounds therein specified. Secs. 22, 23, Art. 6, Constitution; In re Ellison, 256 Mo. 378; Ex parte Creasy, 243 Mo. 679; State ex rel. v. Atkinson, 195 S.W. 741, 271 Mo. 28; M.K. & T. Ry. Co. v. Simonson, 64 Kan. 802, 68 Pac. 653. (5) Where the right of appeal is expressly given by the Constitution the Legislature could neither abolish it nor unreasonably restrict its exercise. 2 R.C.L. 29; Rankin v. Schofield, 71 Ark. 168. (6) The jurisdiction of the Circuit Court is acquired by statutory method of appeal, subject to such limitations in the Compensation Act, which are not derogative to the constitutional rights of the parties. 2 Schneider's Workmen's Compensation Law, sec. 557. (7) The purpose of an appeal is to secure a trial anew. Cudahy Packing Co. v. Ry. Co., 230 S.W. 85, 287 Mo. 452.
Jones, Hocker, Sullivan & Angert for respondents.
(1) Appellant's first point is that Secs. 10, 28, Art. 2, Constitution, were violated in this proceeding because they provide that the courts shall be open to every person and the right to a trial by jury as heretofore enjoyed shall remain inviolate. This contention cannot be maintained. K.C. Sub. Belt Ry. Co. v. Ry. Co., 118 Mo. 617; St. Joseph v. Geiletz, 148 Mo. 210; 35 C.J. 148, 149; Grand Trunk Western Ry. Co. v. Industrial Com., 291 Ill. 167, 125 N.E. 748; Adams v. Biscuit Co., 63 Okla. 52, 162 Pac. 938. (2) Point 2 of appellant's brief is to the effect that the Workmen's Compensation Commission is an inferior tribunal, and cites the case of State ex rel. Syrup Co. v. Commission, 8 S.W. (2d) 898. This case holds that while it is not a court within the terms of Article 3 of the Constitution, yet it does possess power to hear and determine controversies between employer and employee, and its findings are equivalent to the verdict of a jury, and therefore possesses judicial powers. (3) Appellant's Point 5 is not in this case, for the reason that the Constitution does not provide for an appeal, and where it does not do so the Legislature may prescribe such conditions as it may choose upon which appeals may be allowed. 2 R.C.L. 28, 29. (4) The authorities cited by appellant merely discuss the method of an appeal, and therefore are not in point here. (5) The constitutionality of the workmen's compensation laws has been upheld by the Supreme Court of the United States, whether they are compulsory or elective. Mountain Timber Co. v. Washington, 243 U.S. 219; Hawkins v. Railroad Co., 243 U.S. 188; Hawkins v. Bleakley, 243 U.S. 210; Booth Fisheries Co. v. Industrial Commission of Wisconsin, 271 U.S. 208. (6) Section 44 of the act is not in violation of any constitutional provision because it provides that "upon appeal no additional evidence shall be heard, and in the absence of fraud the findings of fact made by the commission within its powers shall be conclusive and binding." Western Paper Makers Co. v. United States, 271 U.S. 268; Chicago, etc., Railroad Co. v. United States, 274 U.S. 29; Skinner, etc., Co. v. United States, 249 U.S. 557; New England Divisions Case, 261 U.S. 184; New York Central Railroad Co. v. White, 243 U.S. 188; St. Louis v. Railroad, 248 Mo. 10; Woodward Iron Co. v. Bradford, 90 So. 803; Salt Lake City v. Industrial Commission, 199 Pac. 152; Vester Gas & Range etc., Co. v. Leonard, 257 S.W. 395; Battle Creek Coal Co. v. Martin, 290 S.W. 18; Town of New Holstein v. Dawn, 209 N.W. 695; American Life Ins. Co. v. Balmer, 214 N.W. 208. (7) As the Missouri Workmen's Compensation Act is elective, those who elect to come under the act are estopped from raising any constitutional questions, and waive their rights to a trial by jury. Hoemer v. Leathe, 149 Mo. 361; O'Day v. Commission, 131 Mo. 321; Merrell v. St. Louis, 83 Mo. 252; Railroad v. Town Site Co., 103 Mo. 469; Booth Fisheries v. Industrial Commission of Wisconsin, 271 U.S. 208; Daniels v. Tearney, 102 U.S. 415; Grand Rapids Ry. Co. v. Osborn, 193 U.S. 17; State ex rel. Waterworth v. Harty, 278 Mo. 685; Regan v. Dickmann, 207 S.W. 292.
SEDDON, C.
This proceeding was instituted on January 20, 1928, by Emma DeMay (the appellant here), the widow and dependent of Albert DeMay, by filing with the Workmen's Compensation Commission of this State her written claim for compensation, wherein the Liberty Foundry Company, a corporation, was named as the employer of Albert DeMay, and Travelers Insurance Company, a corporation, was named as the insurer of said employer, for the death of her husband, whose death is claimed by the said widow and dependent to have resulted from an injury suffered by her husband on August 30, 1927, by accident arising out of and in the course of her husband's employment by the named employer. The proceeding was instituted under the provisions and requirements of the Workmen's Compensation Act, enacted by the 53rd General Assembly, and approved by the Governor of this State on April 30, 1925, but which act, under and by virtue of Article 4, Section 57, of the Missouri Constitution, was referred to a vote of the people of this State, at an election held on November 2, 1926, and was duly adopted at such election by the requisite majority of the votes cast thereon. [Laws 1927, pp. 490 to 522, inclusive.]
The claimant, Emma DeMay, charged and alleged in her written claim for compensation, filed with the Workmen's Compensation Commission, that an accident and injury occurred to her husband, Albert DeMay, August 30, 1927, and that: "Employee (Albert DeMay) was turning a casting, when he felt a sharp pain in his groin; that a hernia appeared suddenly, accompanied by intense pain; the hernia immediately followed the accident; that the hernia did not exist in any degree prior to the accident, and that the hernia was the result of the strain (the turning of the casting). Employee was operated on for the above hernia on December 5, 1927, and died as the result of this operation." Claimant prayed an award of compensation from the employer and its insurer in the aggregate sum of $5100, computed upon the basis of 66 2/3 per cent of the employee's average weekly earnings (alleged as $25.50) during the year immediately preceding the alleged injury, multiplied by 300, as provided in Section 21 (b) of the Workmen's Compensation Act.
On February 9, 1928, the employer and the insurer filed with the Workmen's Compensation Commission their joint written answer to the claim for compensation, wherein it was specifically denied that the employee, Albert DeMay, sustained an accident and injury arising out of and in the course of his employment, and denied that the death of Albert DeMay resulted from an accident and injury arising out of and in the course of his employment.
Thereafter, on March 15, 1928, a hearing upon the claim for compensation was had before Hon. Evert Richardson, a member of the Workmen's Compensation Commission, at the St. Louis office of the Commission, wherein the claimant, the employer and the insurer appeared in person or by representatives.
Thereafter, on June 23, 1928, the said Evert Richardson, member of the Workmen's Compensation Commission, after hearing the respective parties, their representatives, witnesses and evidence, made and filed with the record of said proceedings a finding of facts and an award, wherein the said member of the Workmen's Compensation Commission found in favor of the employer and the insurer, and against the claimant, Emma DeMay, and awarded no compensation to the complainant. The finding of facts returned and filed by the said member of the Compensation Commission was to the effect that there was no accident which had been suffered by the employee, Albert DeMay, and that "the evidence in this case does not show that deceased employee's death was caused by an injury received in an accident arising out of and in the course of his employment;" wherefore, the claimant's claim for compensation was denied.
In due time, and on June 26, 1928, the claimant, Emma DeMay, filed with the Workmen's Compensation Commission an application for review and on July 30, 1928, the claimant filed with the Commission a written request for submission on review, requesting the Commission to determine the matter upon the record as it then stood, without further evidence or argument.
On October 9, 1928, the full membership of the Workmen's Compensation Commission, on review, affirmed the findings, statement, rulings and award of the said Evert Richardson, dated and filed on June 23, 1928, and the full Commission made and filed with...
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