Elsas v. Montgomery Elevator Co.

• Citation: 50 S.W.2d 130,330 Mo. 596
• Decision Date: 31 May 1932
• Docket Number: 30676
• Parties: Lora Elsas, Appellant, v. Montgomery Elevator Company and American Mutual Liability Insurance Company
• Court: United States State Supreme Court of Missouri

50 S.W.2d 130

330 Mo. 596

Lora Elsas, Appellant, v. Montgomery Elevator Company and American Mutual Liability Insurance Company

No. 30676

Supreme Court of Missouri

May 31, 1932

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge;

Reversed and remanded (with directions).

Cleary & Barnett and Denton Dunn for appellant.

(1) The Compensation Statute defines as a major employer "one who has more than ten employees regularly employed" and this statutory definition of a major employer does not require that the employees therein referred to be Missouri employees, and the court is without right to amend this statutory definition by adding thereto the words "in Missouri." Missouri Workmen's Compensation Act, sec 4; R. S. 1929, sec. 3302; Missouri Workmen's Compensation Act, sec. 12; R. S. 1929, sec. 3310; Span v. Jackson Coal & Mining Co., 16 S.W.2d 196; State ex rel. v Lee, 303 Mo. 647, 262 S.W. 344; State ex rel. v. Board of Education, 294 Mo. 115, 242 S.W. 85; Trefny v. Eichenseer, 262 Mo. 442, 171 S.W. 930; Donaldson v. Donaldson, 249 Mo. 243, 155 S.W. 791; Clark v. Railroad, 219 Mo. 534, 118 S.W. 40; Betz v. K. C. S. Ry. Co., 314 Mo. 390, 284 S.W. 455; State ex rel. v. Gehner, 316 Mo. 1075, 292 S.W. 1028; State ex rel. v. Cobb, 319 Mo. 492, 5 S.W.2d 57. (2) The Workmen's Compensation Statute is, by the terms of the statute itself, Section 76, to be liberally construed. Sec. 3374, R. S. 1929; Cobb v. Standard Accident Ins. Co., 31 S.W.2d 575; Clingan v. Carthage Ice & Cold Storage Co., 25 S.W.2d 1084. (3) A payment of the hospital and medical bills of a deceased employee tolls the six months' period within which a claim for compensation must be filed. (a) The undisclosed purpose of the employer in making such payment cannot afford him the right to set up later that the payment was not made under the Workmen's Compensation Act. (b) The purpose of the employer in making the payment whether disclosed or undisclosed is not material for the purpose of tolling the six months' period where as a matter of fact the medical bills thus paid were incurred "on account of the injury." Missouri Workmen's Compensation Act, sec. 39; R. S. 1929, sec. 3337; Missouri Workmen's Compensation Act, sec. 21(a); R. S. 1929, sec. 3319; Missouri Workmen's Compensation Act, sec. 13 (a); R. S. 1929, sec. 3311; Pollock, First Book of Jurisprudence (3 Ed.) 144; 22 C. J. 173, note 39(a); 22 C. J. 175, sec. 114, note 75 and cases; 37 C. J. 1145, Limitations; Connor v. Hodges, 7 Ga. 153, 66 S.E. 546; Fox v. Railroad Co., 70 Conn. 1, 38 A. 871. (4) Under the Compensation Statute it is the duty of the employer having knowledge of an accident to report the same to the Compensation Commission and the duty of the commission immediately to communicate with those entitled to file a claim, and, if necessary, assist them in the filing thereof. Where the employer, as in this case, has knowledge of the accident, the six months' period for filing claim does not begin until the employer reports the accident to the Commission, a thing which the employer here never did. Missouri Workmen's Compensation Act, sec. 34; R. S. 1929, sec. 3332; Missouri Workmen's Compensation Act, sec. 36; R. S. 1929, sec. 3334; Sec. 879, R. S. 1929; Schrabauer v. Schneider Engraving Products, 25 S.W.2d 529. (5) Where the issue is one of jurisdiction a decision thereon is res adjudicata as to all matters that were raised or that properly could have been raised with reference to the question of jurisdiction, and the previous decision of the Supreme Court in this case has settled once for all, all jurisdictional questions. (a) If an employer is not a major employer (and has filed no application to come under the Act) the Compensation Commission has no jurisdiction over a claim against such employer. Also, if a claim is not filed with the commission within such time as the law requires, the commission has no jurisdiction to hear and pass upon that claim. These are both jurisdictional matters. (b) The Supreme Court in the mandamus action herein adjudicated in favor of Lora Elsas the question of jurisdiction of the Workmen's Compensation Commission to pass upon her claim against the defendants. 34 C. J. 909; Summet v. Realty & Brokerage Co., 208 Mo. 511; Melvin v. Hoffman, 290 Mo. 493; Stone v. Railroad, 261 Mo. 78; Ederheimer v. Canson Dry Goods Co., 105 Ark. 488. (6) One having an actual interest in the outcome of an action who participates therein even under the style of amicus curiae is bound by the determination of the action. State ex rel. Elsas v. Workmen's Compensation Commission, 318 Mo. 1011, 2 S.W.2d 798; State ex rel. v. Homer, 249 Mo. 75; 1 R. C. L. 105, sec. 8; Com. v. Collom, 1 Pa.Super. 542; 15 C. J. 851, 852; Perry v. Griefen, 99 Md. 420, 59 A. 601; Souffront v. Comfagnie des Sucreries, 217 U.S. 487; Cushman v. Warren S. A. P. Co., 220 F. 857; Boas v. Branch, 208 S.W. 75; Bell v. George, 275 Mo. 29, 204 S.W. 519; Titus v. North K. C. D. Co., 264 Mo. 248. (7) Parties who contract among themselves to define their legal status under the law as one thing and bind one another thus to deal with the public and undertake thereby to enjoy all of the legal fruits of that status, are as a matter of public policy estopped to assert at their convenience a claim to some other legal status in order to escape the liabilities of the first. (8) The award of the commission has the effect of a special verdict and that view of the evidence below most favorable to the plaintiff must be accepted as true. Brewer v. Ash Grove Lime & Cement Co., 25 S.W.2d 1091; Woods v. American C. & D. Co., 25 S.W.2d 144; Rollins v. Keller Const. Co., 24 S.W.2d 1017; State v. Mo. Workmen's C. C., 8 S.W.2d 900; Hammock v. West Plains Lbr. Co., 30 S.W.2d 650; Cobb v. Standard Acc. Ins. Co., 31 S.W.2d 573; Ritchie v. Rayville C. Co., 33 S.W.2d 154; Wheat v. Whitney & Son, 34 S.W.2d 158; Huelsmain v. Stute & Co., 28 S.W.2d 387.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, Cyrus Crane, Hugh E. Martin and Richard S. Righter for appellees.

(1) The circuit court was right in setting aside the award of the Compensation Commission because appellee Montgomery Elevator Company is a minor employer within the meaning of the Missouri statute. Sec. 3302, R. S. 1929; Stone v. Blackmer & Post Pipe Co., 27 S.W.2d 460; New York Life Ins. Co. v. Head, 234 U.S. 149. (2) The circuit court was right in setting aside the award, because the Statute of Limitations had run upon the claim for compensation before the claim was filed. (a) Payment of medical and hospital bills in April, 1927, did not suspend or prevent the running of the Statute of Limitations in this case. Sec. 3337, R. S. 1929; Barber v. Estey Organ Co., 135 A. 1; Twonko v. Rome Brass & Copper Co., 120 N.E. 638, 224 N.Y. 233; Ohio Oil Co. v. Industrial Commission, 127 N.E. 743, 293 Ill. 461; Petraska v. National Acme Co., 113 A. 536; Chicago Board of Underwriters v. Industrial Commission, 164 N.E. 216, 332 Ill. 611; Stein v. Packard Motor Car Co., 178 N.W. 61; Brown v. Weston-Mott Co., 168 N.W. 437; Bethlehem Shipbuilding Corp. v. Mullen, 119 A. 314; Bushnell v. Industrial Board, 114 N.E. 496; Hunt v. Industrial Acc. Commission of Cal., 185 P. 215; Haiselden v. Industrial Board, 113 N.E. 877; In re Levangie, 117 N.E. 200; Miller v. Industrial Acc. Commission of Cal., 156 P. 1033; Erhart v. Industrial Commission of Cal., 158 P. 193; Smith v. Solvay, 163 P. 645; Shild v. Pere Marquette, 166 N.W. 1018. (b) The failure of appellees to file a report of the accident with the Compensation Commission did not toll the Statute of Limitations. Wheeler v. Mo. Pac. Ry. Co., 33 S.W.2d 179. (3) Appellant's claim that the decision of the Supreme Court in the mandamus case is res adjudicata upon the defenses raised by appellees before the commission and before the circuit court, is not well taken. Art. 6, Sec. 3 of the Constitution of Missouri; State ex rel. v. Court, 41 Mo. 221; State ex rel. v. Dearing, 173 Mo. 492, 73 S.W. 485; State ex rel. v. Patterson, 207 Mo. 129, 105 S.W. 1048; State ex rel. v. Stone, 269 Mo. 334, 190 S.W. 601; State ex rel. v. Hall, 304 Mo. 83, 262 S.W. 720; State ex rel. v. Railway, 280 Mo. 456, 218 S.W. 310; State ex rel. v. Dickey, 280 Mo. 536, 219 S.W. 363; State ex rel. Elsas v. Workmen's Compensation Commission, 318 Mo. 1004, 2 S.W.2d 796; State ex rel. v. Homer, Judge, 249 Mo. 58; State ex rel. v. Grimm, 220 Mo. 489.

OPINION

Atwood, J.

Marshall Elsas, while regularly employed in Missouri by the Montgomery Elevator Company under contract of employment made in Missouri, was injured November 4, 1926, and died on November 24, 1926, as a result of the injuries so received. A claim for compensation was filed by the widow on July 8, 1927, against appellees, Montgomery Elevator Company and American Mutual Liability Insurance Company, the latter the employer's insurer, which the Missouri Workmen's Compensation Commission declined to entertain on the ground that the Workmen's Compensation Act was not in effect on the date Elsas was injured. Thereupon, appellant herein applied to this court for a writ of mandamus to compel the commission to hear and determine the claim. Montgomery Elevator Company filed brief as amicus curiae in opposition thereto. On final hearing we ruled that the Workmen's Compensation Act was in effect when Elsas was injured, and our alternative writ was made absolute. [State ex rel. Lora Elsas v. Workmen's Compensation Commission, 318 Mo. 1004, 2 S.W.2d 796.]

Thereafter the commission proceeded to hear and determine this claim. Appellees' answer thereto contained two principal defenses, as follows:

First that the claim for compensation was barred because it was not filed with the Compensation Commission within six months after the injury to and death of...