Graves v. O. F. Elliott, Inc.
| Decision Date | 02 July 1946 |
| Parties | Fred Arthur Graves, Appellant, v. O. F. Elliott, Inc., Employer: Employers Mutual Liability Company, Insurer, Respondents |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Newton County; 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 et al. v. Kroger Grocery & Baking Co., 83 S.W.2d 917, 922; Schulz v. Great Atlantic & Pacific Tea Co., 56 S.W.2d 126; Wessel v. St. Louis Car Co., 136 S.W.2d 388; Kripplaben et al. v. Greenspon's Iron & Steel Co. et al., 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. Revised Statutes of Mo. 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 565-572; Insurers Indemnity & Ins. Co. v. Brown, 172 S.W.2d 175-176; Phillip Gruner & Bros. Lbr. Co. v. Brown, 172 S.W.2d 175-176; Phillip Gruner & Bros. Lmbr. 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; Revised Statutes of Missouri, 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 of Mo., 1943; Sec. 847.126, Mo. R. S. A.; Sec. 101, General Code for Civil Procedure, p. 385, Laws of Mo., 1943; Sec. 847.101, Mo. R. S. A.; Boyd v. Logan Jones D. G. Co., 74 S.W.2d 598, 335 Mo. 947; State v. Seehorn, 223 S.W. 664, 667; Hill-Behan Lbr. Co. v. Hammer Dry Plate Co., 162 S.W.2d 348 l. c. 351. (2) Answering points numbered I and II under the headings, "Assignments of Error" and "Points and Authorities" of appellant's brief, i. e., at pages 10, 11 and 12 of said brief. As to appellant's contention that the Circuit Court of Newton County, Missouri, erred in dismissing claimant's appeal from the Workmen's Compensation Commission when, as a matter of law, claimant was entitled to a judgment by the Circuit Court for awarding his compensation. 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. (Mo.), 149 S.W.2d 846; Brewer v. Ash Grove Lime & Portland Cement Co., (Mo. App.), 25 S.W.2d 1086, 1089, Syl. 3; Higbee v. A. P. Green Fire Brick Co. (Mo. App.), 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. et al. (Mo. App.), 40 S.W.2d 750; Mary Moran et al. v. Edward Peterson Const. Co., (Mo. App.), 56 S.W.2d 809; Muesenfechter et al. v. St. Louis Car Co. (Mo. App.), 139 S.W.2d 1102. (4) Answering appellant's contention that the circuit court erred in dismissing the claimant's appeal from the Workmen's Compensation Commission on the ground that the appeal was not taken in time, the rule in Missouri is that 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. Mo. 1939; Boyd v. Logan Jones D. G. Co., supra, 599; State ex rel. Dunham v. Nixon, etc., (Mo., in banc), 232 Mo. 98; Magee v. Mercantile-Commerce Bank & Trust Co. (Mo.), 98 S.W.2d 614, l. c. 615. (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. Mo. 1939; Brashear v. Brand-Dunwoody Milling Co. (Mo. App.), 21 S.W.2d 191, 192, 2d col.; State ex rel. v. May Dept. Stores Co. et al., (Mo., in banc), 38 S.W.2d 44, 57; State ex rel. Brown & Williamson Tobacco Corp. et al. v. Mo. Workmen's Compensation Commission, 132 S.W.2d 683.
(No. 6579)
VANDEVENTER
This case came to the writer by reassignment. It is a claim of an employee under the Workmen's Compensation Act. The report of the accident was dated September 14, 1942, and stated that the accident happened in Joplin, Missouri. The claim for compensation was dated December 19, 1942, and stated that the place of the accident was "3317 Pearl, Joplin, Missouri." An answer to the claim for compensation was filed December 19, 1942, by the employer and insurer and this answer stated that the place of the accident was Joplin, Missouri. A notice of hearing was sent out by the Workmen's Compensation Commission setting the hearing for 3:30 P. M. February 10, 1943, at the "court house in Joplin, Missouri." The hearing was had before the Honorable Francis E. Kinder, Referee of the Workmen's Compensation Commission on the 10th day of February, 1943, in the court house, at Joplin, Jasper County, Missouri, all parties being present and participating. The record shows that the employee, Fred Arthur Graves, was sworn and in his testimony it developed, for the first time, that the alleged accident occurred in Newton County although at a place within the city limits of Joplin, Missouri. It was then stipulated by the parties, the employee, the employer and the insurance company, that since it had developed by the evidence that the employee claimed that the accident happened in Newton County, that the parties then agreed that they proceed with the hearing "before the Referee in the City of Joplin, Jasper County, Missouri as fully and completely as though the cause were duly set for hearing in Newton County, Missouri and that neither party will make any objection or take any exception to any act or thing done in this claim because of the fact that the hearing was had in the City of Joplin, Jasper County, Missouri, and notice of the hearing was issued by the Missouri Workmen's Compensation Commission to be held in the City of Joplin, Jasper County, Missouri rather than in Newton County, Missouri."
This stipulation appears in the record. The parties then proceeded with the hearing. On the 27th day of September, 1943, the Referee made his findings on the hearing and found that the disability complained of was not the result of an accident arising out of and in the course of the employment and compensation was denied. An application for review was filed on September 29, 1943 and on November 5, 1943 the whole Commission affirmed the findings and order of the Referee dated September 27, 1943. On November 8, 1943, three days later, the employee, by attorney, gave notice of appeal on a printed form furnished by the Commission but in filling out the blank spaces, inserted the word "Jasper" instead of "Newton." The Workmen's Compensation Commission, upon receipt of this notice, certified all the documents and papers on file in the matter,...
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