Fisher v. Ely & Walker Dry Goods Co.
| Decision Date | 04 February 1932 |
| Docket Number | No. 4845.,4845. |
| Citation | 46 S.W.2d 902 |
| Court | Missouri Court of Appeals |
| Parties | FISHER v. ELY & WALKER DRY GOODS CO. et al. |
Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.
Proceeding under the Workmen's Compensation Act by Verdie Fisher, claimant, for injuries, opposed by the Ely & Walker Dry Goods Company, employer, and the American Mutual Liability Insurance Company, insurance carrier. An award of the Compensation Commission was affirmed by the circuit court, and the employer and insurance carrier appeal.
Reversed and remanded, with directions.
Wm. R. Schneider and J. J. Cooney, both of St. Louis, for appellants.
Langdon R. Jones, of Kennett, for respondent.
This is a proceeding under the Workmen's Compensation Act (Laws 1927, p. 490), growing out of an accident which occurred at Kennett, Mo., on March 17, 1928, in the plant of the employer, Ely-Walker Dry Goods Company, while the employee, the plaintiff, was engaged in ironing shirts, on which day she received a personal injury by accident arising out of and in the course of her employment due to an electric shock from the pressing iron she was at the time using.
The circuit court affirmed a final award of the Compensation Commission against the defendants in the total amount of four hundred weeks' temporary total disability at $6 per week or $2,400, and from which judgment defendants have appealed.
There is no question made here by the defendants as to the employment of the plaintiff, the date of the accident, nor as to the extent of the plaintiff's injury, nor as to the amount of compensation allowed, if she is entitled to any, and no complaint as to the pleadings. The plaintiff's claim for compensation was received and filed by the Missouri Workmen's Compensation Commission on February 15, 1929, lacking two days of being eleven months after the accident, and the defendants, the employer and the insurer, base their contention for reversal of this case solely on the statute of limitations, their contention being expressed in their points and authorities as follows:
The plaintiff contends that the six months' statute of limitations does not apply to her in this case because of the conduct on the part of the defendants in failing to comply with the statute in such cases, and that such failure to so comply with the law tolled the statutes, and that the defendant could not take advantage of the statute, since they had failed to comply with the statute themselves.
There is not much controversy over the facts of the case, and such facts will be set out herein as we deem necessary to a determination of the case.
The record shows that a hearing was had before the Missouri Workmen's Compensation Commission, on July 18, 1929, and that on November 2, 1929, after a request for an appeal by the defendants, the commission certified the case to the circuit court of Dunklin county with all the documents and papers on file in the case, together with a transcript of the evidence, the findings, and the award.
This transcript of the record, as so certified by the commission without the production of other evidence, was submitted to the circuit court of Dunklin county on February 28, 1930, and on said date the court made an order, finding, judgment, and decree affirming the order, decision, and award of the commission as to the extent of the injury and the amount of liability. An appeal was granted to this court.
The date of the accident was admitted, the plaintiff was working for the employer at the time, and the salary the plaintiff was receiving was $6 per week.
The record shows that the employer was notified of the accident immediately after it happened.
The record shows that the employer filed a report of the accident with the commission on June 9, 1928, which report was dated March 19, 1928, but the record in no way explains the delay in the filing of the report with the commission. This report gave the correct date, the cause of the accident, and everything properly, except it said that the employee had returned to work and that no time was lost by the employee, and that she was working at the same weekly wage as received before the injury. The record shows that on May 1, 1928, the plaintiff wrote, through her attorney, a letter to the insurer advising that company that the plaintiff had been seriously and permanently hurt, and that the employer had advised that the matter be taken up with that company, since that company had made an investigation in the matter and was behind the employer in settlement thereof. On June 1, 1928, the attorney for plaintiff wrote a letter to the employer calling attention to the fact that the claim had not been adjusted, and that in keeping with the suggestion of the local manager of that company he had taken the matter up with the insurer, but that nothing had been done, and that, if adjustment was not made, suit would be filed at the July term of the circuit court. On July 7, 1928, the insurer wrote the attorney for the plaintiff the following letter:
It will be noted that all of these letters were written before the report of the employer was filed with the commission. On August 13, 1928, the insurer wrote the attorney for plaintiff that it would pay the necessary expenses for the plaintiff to go from Kennett to St. Louis to visit a physician in that city. On December 5, 1928, the attorney for plaintiff wrote the insurer in part as follows:
The record fails to show any reply to this letter, and on January 28, 1929, another letter was written to the insurer by plaintiff's attorney, in part as follows:
The record shows no answer to this letter, and, as heretofore stated, the claim was filed with the commission on February 15, 1929, the material part of which is as follows:
On March 4, 1929, the employer filed with the commission its answer which is as follows:
On March 16, 1929, the employer and the insurer filed an answer with the commission, which is as follows, caption omitted:
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