Graves v. O. F. Elliott, Inc.

• Decision Date: 11 November 1946
• Docket Number: 40080
• Citation: 197 S.W.2d 977,355 Mo. 751
• Parties: Fred Arthur Graves, Appellant, v. O.F. Elliott, Inc., Employer: Employers Mutual Liability Company, Insurer
• Court: Missouri Supreme Court

197 S.W.2d 977

355 Mo. 751

Fred Arthur Graves, Appellant, v. O.F. Elliott, Inc., Employer: Employers Mutual Liability Company, Insurer

No. 40080

Supreme Court of Missouri

November 11, 1946

Rehearing Denied December 9, 1946.

Appeal from Newton Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded.

Norman Foulke & Warten for appellant.

(1) Under the uncontradicted evidence in the case, the claimant sustained an accident within the meaning of the Compensation Law in the nature of a sun stroke, and was entitled to an award of compensation. The award of the Workmen's Compensation Commission denying compensation is erroneous, and since the award is not supported by any evidence, the cause should be reversed and remanded. Bicanic v. Kroger Grocery & Baking Co., 83 S.W.2d 917; Schulz v. Great Atlantic & Pacific Tea Co., 56 S.W.2d 126; Wessel v. St. Louis Car Co., 136 S.W.2d 388; Kripplaben v. Greenspon's Iron & Steel Co., 50 S.W. 2d 752; McCarthy v. American Car & Foundry Co., 145 S.W.2d 486. (2) The court erred in holding that appellant's appeal was not taken in time. Questions raised as to the time of the appeal must be decided on the face of the record and the uncontradicted evidence in this case shows that the final award of the Commission was entered on the 5th day of November, 1943, and that the notice of appeal was dated November 8, 1943, and received by the Commission on November 10, 1943. R.S. 1939, sec. 3732. (3) The claimant had a right, under the law, to amend a clerical error in the original notice of appeal and his offer of amendment of the original notice of appeal, and the judgment and finding of the Commission, allowing the appeal and certifying it to the Circuit Court of Newton County, Missouri, is presumptive evidence that the appeal was taken in time which has not been rebutted by any evidence appearing on the face of the record. The offer of amendment related back to the date the notice of appeal was filed. The notice of appeal, although it had a clerical error, was a substantial compliance with the statute. Cottingham v. General Material Co., 70 S.W.2d 101; Higgins v. Heine Boiler Co., 41 S.W.2d 565; Insurers Indemnity & Ins. Co. v. Brown, 172 S.W.2d 175; Gruner & Bros. Lbr. Co. v. Hartshorn, Barber Realty & Bldg. Co., 171 Mo.App. 614; State ex rel. Christine v. Taylor, 206 S.W. 274, 200 Mo.App. 333. (4) All proceedings before the Workmen's Compensation Commission must be construed liberally with a view to the public welfare, and no pleading should be declared inoperative, because of a clerical error or technical defect. No employee should be deprived of his right of appeal on such grounds, and especially so when there is no showing of any prejudice to the employer's rights. Vogt v. Ford Motor Co., 138 S.W.2d 684; McClintock v. Skelly Oil Co., 114 S.W.2d 181; R.S. 1939, sec. 3764.

Justin Ruark, F. H. Richart and Rex Titus for respondents.

(1) Respondents' motion for a dismissal of this appeal should be sustained for the reason that there has been no final judgment and the only order rendered by the trial court was and is an order dismissing appellant's appeal from the Workmen's Compensation Commission to the Newton County Circuit Court, from which character of order no appeal is allowable. Sec. 126, General Code for Civil Procedure; Laws 1943; sec. 847.126. Mo. R.S.A.; Sec. 101, General Code for Civil Procedure, p. 385, Laws 1943; Sec. 847.101, Mo. R.S.A.; Boyd v. Logan Jones D.G. Co., 74 S.W.2d 598, 335 Mo. 947; State ex rel. v. Seehorn, 223 S.W. 664; Hill-Behan Lbr. Co. v. Hammer Dry Plate Co., 162 S.W.2d 348. (2) The Missouri rule that findings of fact made by the commission, if sustained by sufficient competent evidence, are conclusive on appeal, has been adhered to in all decisions. Weaver v. Norwich Pharmacal Co., 149 S.W.2d 846; Brewer v. Ash Grove Lime & Portland Cement Co., 25 S.W.2d 1086; Higbee v. A.P. Green Fire Brick Co., 191 S.W.2d 257. (3) Under the Missouri Workmen's Compensation Act, in order for an injury to be compensable because of the exposure of the employee to danger of the elements, the character of the employment itself must be shown to have been of a nature to have intensified the risk, and to have subjected the employee to a greater hazard than that faced by other people in the same locality. The appellant failed in his proof to show any condition or hazard to which he was subjected by reason of his employment greater than that to which the general public was subjected on that day. Morris v. Dexter Mfg. Co., 40 S.W.2d 750; Moran v. Edward Peterson Const. Co., 56 S.W.2d 809; Muesenfechter v. St. Louis Car Co., 139 S.W.2d 1102. (4) A Court must inquire into its own jurisdiction, whether the question of jurisdiction is presented by either party to the litigation or not. Having made such inquiry if it appears to the court that it has no jurisdiction, the only thing the court could do would be to dismiss the case or strike it from its docket. Sec. 3732, R.S. 1939; Boyd v. Logan Jones D.G. Co., supra, l.c. 599; State ex rel. Dunham v. Nixon, etc., 232 Mo. 98; Magee v. Mercantile-Commerce Bank & Trust Co., 98 S.W.2d 614. (5) The only appeal in this cause was from the Workmen's Compensation Commission to the Circuit Court of Jasper County, Missouri. No appeal was taken to the Circuit Court of Newton County, Missouri. Consequently the Circuit Court of Newton County, Missouri, had no jurisdiction over said cause and could do nothing more than to dismiss appellant's appeal to such court. Sec. 3732, R.S. 1939; Brashear v. Brand-Dunwoody Milling Co., 21 S.W.2d 191; State ex rel. May Dept. Stores Co. v. Haid, 38 S.W.2d 44; State ex rel. Brown & Williamson Tobacco Corp. v. Mo. Workmen's Comp. Comm., 132 S.W.2d 683.

OPINION

Hyde, J.

This is a Workmen's Compensation case, in which claimant's appeal was dismissed by the Circuit Court of Newton County. Claimant appealed to the Springfield Court of Appeals, which reversed the judgment of dismissal and remanded the case for further proceedings. [Graves v. O.F. Elliott, Inc., 195 S.W.2d 750.] On dissent of one of the judges, the case has been transferred here.

Claimant's injury was sustained in that part of the City of Joplin which is in Newton County. The parties stipulated that the hearing before the Referee could be held in the Court House in Joplin, located in Jasper County. After an adverse decision by the Referee and by the Commission, claimant filed a notice of appeal. The Commission's decision was made on November 5, 1943. The notice of appeal was dated November 8th and was received by the Commission on November 10th.

This notice, which was on a form adopted by the Commission, reads as follows: "The undersigned hereby gives notice of appeal to the Circuit Court of Jasper County, Missouri, from the award, order or decision made in the above matter by the Missouri Workmen's Compensation Commission under date of November 5, 1943, and requests said Commission under its certificate to return to said Court all documents and papers on file in the matter, together with a transcript of the evidence, the findings and award, order or decision, and to proceed hereon according to law."

The Commission certified the transcript of the evidence and other papers to the Circuit Court of Jasper County on November 18th. When the case came up there in 1944, the Court decided it did not have jurisdiction of the appeal and remanded the cause to the Commission. On November 17, 1944, the Commission sent the...