Harder v. Thrift Const. Co.

• Citation: 53 S.W.2d 34
• Decision Date: 04 October 1932
• Docket Number: No. 21726.,21726.
• Parties: HARDER v. THRIFT CONST. CO. et al.
• Court: Court of Appeal of Missouri (US)

53 S.W.2d 34

HARDER v. THRIFT CONST. CO. et al.

No. 21726.

St. Louis Court of Appeals. Missouri.

October 4, 1932.

As Modified on Denial of Rehearing October 18, 1932.

Appeal from Circuit Court, St. Louis County; Amandus Brackman, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by James H. Harder, employee, opposed by the Thrift Construction Company, employer, and the Commercial Casualty Insurance Company, insurer. Prior to the hearing, the employee died. From a judgment affirming an award of the Industrial Commission in favor of Lillian Harder, dependent widow, the employer and insurer appeal.

Affirmed,

Jourdan & English, of St. Louis, for appellants.

A. Evan Hughes, of St. Louis, for respondent.

BENNICK, C.

This is a proceeding under the Workmen's Compensation Act (sections 3299-3376, R. S. 1929, Mo. St. Ann. §§ 3299-3376), which reaches this court on the appeal of the employer and insurer from the judgment of the circuit court of St. Louis county, affirming a final award of the commission.

On October 27, 1928, James H. Harder, an employee, was injured by accident concededly arising out of and in the course of his employment, when a quantity of molten lead was caused to strike his right arm, inflicting first and second degree burns. The Thrift Construction Company was the employer, and the Commercial Casualty Insurance Company its insurer.

The first receipt and temporary agreement for compensation was filed with the commission on November 7, 1928, showing the payment to the employee of the sum of $20, with the agreement of the employer and insurer to furnish medical aid as provided in the act, and to pay compensation at the rate of $20 a week, commencing October 31, 1928, for such time as was provided in the act, or until the parties should otherwise agree.

On December 3, 1928, a final receipt for compensation, signed by the employee, was filed with the commission, showing the termination of disability on December 2, 1928, and the payment of compensation in the total sum of $102.86 for 5 1/7 weeks of disability. The receipt recited that in consideration of such payments the employee released and discharged the employer from all liability under the act by reason of the accident, subject to review as provided in the act. However, nothing appears to have been done by the commission either by way of approval or rejection of such settlement agreement; and therefore under the plain terms of section 3333, R. S. 1929 (Mo. St. Ann. § 3333), the validity of such agreement as a final and binding compromise of the employee's claim may not be asserted. Shout v. Gunite Concrete & Construction Co. (Mo. App.) 41 S. W.(2d) 629; O'Malley v. Mack International Motor Truck Corporation, 225 Mo. App. 1, 31 S.W.(2d) 554, 557.

From the date of the injury until November 12, 1928, the employee had been treated for his burns, and on the latter date was discharged as cured. About a month later, which was a week or more after the filing of the final receipt for compensation, he reported back to work, but was not re-employed owing to the fact that there was no work available for him at that time.

That the employee's burns had healed within the time in question is not disputed, but the further controversy in the case was with regard to a mental condition which became apparent some ten days after the accident and which was first diagnosed as one of melancholy. For this condition the employee was treated by a chiropractor, as well as by a physician; and on January 28, 1929, a formal claim for compensation was filed, signed by the employee, by Lillian Harder, his wife, as his attorney, and setting up in addition to the burns on the arm that the employee's mind had been affected by the injury. Compensation was claimed both for temporary disability and for permanent injury.

Thereafter, on February 2, 1929, the employer and insurer answered, denying any liability for further compensation beyond that already paid and receipted for in the final receipt on file with the commission.

On February 18, 1929, the employee entered the City Hospital of the City of St. Louis, where a physical and mental examination was made, and his condition diagnosed as general paralysis of the insane, which was caused by the disease of syphilis. Two weeks later he was transferred to the City Sanitarium, where he died of that condition on March 17, 1929.

Meanwhile the matter of the employee's claim for compensation had been allowed to lie dormant, but on July 11, 1929, notwithstanding his death four months earlier, the claim was called up for a hearing before one of the members of the commission, appellants being represented at such hearing by counsel other than those now appearing for them in this court. On August 1, 1929, an award was made, finding, among other things, that the accident caused the syphilitic condition to become active, which in turn caused the general paralysis of the insane; and awarding for funeral expenses the sum of $150, and for death benefit, to Mrs. Lillian Harder, the dependent widow, the sum of $20 a week for 350 weeks, or until her death or remarriage, and then to Cecelia Harder, a dependent daughter, as her rights might appear. Said payments were made to begin as of October 28, 1928, and to be payable and be subject to modification and review as provided in the act.

On August 2, 1929, the employer and insurer filed their application for a review before the full commission, calling attention to the question of the sufficiency of the evidence to show that the actual injury sustained had resulted in the employee's death; and on September 25, 1929, the full commission entered its final award, affirming on review the award of August 1, 1929.

Thereafter the employer and insurer filed their notice of appeal to the circuit court, where, upon a hearing, the award of the commission was affirmed; and it is from such judgment that the employer and insurer have duly perfected their appeal to this court.

It will be recalled that the employee, on December 3, 1928, had executed what purported to be a final receipt for compensation; that on January 28, 1929, his formal claim for compensation was filed; that he died on March 17, 1929, before his claim had been determined; and that on July 11, 1929, the claim was heard by the commission, and an award of the death benefit made to the dependent widow, who is the respondent herein.

Now appellants argue as a matter of first insistence that the commission acted without and in excess of its powers in rendering the award, in view of the fact that this claim was instituted as an original hearing, when, according to their theory of the law, it should have been brought up only as a review of the terms of the settlement agreement. Beyond this they argue that if the commission was not limited purely to a review of the settlement agreement as they strongly insist, it only had jurisdiction, if at all, under the claim filed for the amount due the employee from the date of his injury to the date of his death, less the amount already paid him; and that in any event it had no jurisdiction to award the death benefit to the widow when the only claim ever filed was that of the employee himself for compensation for his injuries.

We have heretofore mentioned the fact that under the terms of section 3333, R. S. 1929 (Mo. St. Ann. § 3333), the settlement agreement of December 3, 1928, had no validity as a final compromise of the claim in view of the fact that it was not approved by the commission. To quote from O'Malley v. Mack International Motor Truck Corporation, supra: "The filing of the settlement agreement gave the commission jurisdiction of the plaintiff's claim for compensation for injuries ensuing on account of the accident. It was in effect the filing of a claim for compensation. * * * It was not valid and final as a settlement until approved by the commission and an award was made thereon. So long as the commission had not acted on the agreement, the amount of plaintiff's compensation was an open question before the commission. The view that the claim is not barred is borne out by the provisions of section 42 of the act, to the effect that the commission may at any time, upon a proper hearing, review and modify any award, either diminishing or increasing the compensation awarded. If after an award has been made upon the original hearing of the claim the commission may increase or diminish the award at any time, then for a much stronger reason, it would seem that the commission ought to have power, when no award has been made, but the claim remains pending and undisposed of before the commission, to allow the filing of an amended claim, and on proper hearing make such award as it...