Hassell v. C. J. Reineke Lumber Co.

• Decision Date: 06 December 1932
• Docket Number: No. 22343.,22343.
• Parties: HASSELL v. C. J. REINEKE LUMBER CO.
• Court: Missouri Court of Appeals

54 S.W.2d 758

HASSELL v. C. J. REINEKE LUMBER CO.

No. 22343.

St. Louis Court of Appeals. Missouri.

December 6, 1932.

Appeal from St. Louis Circuit Court; H. A. Rossmopf, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Frank Hassell, claimant, for injuries, opposed by the C. J. Reineke Lumber Company, employer, and the Maryland Casualty Company, insurer. From a judgment reversing an award of the Workmen's Compensation Commission denying additional compensation, employer and insurer appeal.

Reversed and remanded, with directions.

John G. Burkhardt and R. L. Swann, both of St. Louis, for appellants.

Hay & Flanagan and U. G. Lewellen, all of St. Louis, for respondent.

BENNICK, C.

This is an appeal by the employer and insurer from the judgment of the circuit court of the city of St. Louis, reversing an award of the Workmen's Compensation Commission, and remanding the cause to it, with directions to award additional compensation to the employee in accordance with the act. Frank Hassell is the employee; C. J. Reineke Lumber Company, a corporation, the employer; and Maryland Casualty Company, a corporation, the insurer.

On September 19, 1929, the employee was concededly injured by accident arising out of and in the course of his employment, when a piece of lumber flew from a saw, striking and injuring his back. Liability for the payment of compensation was recognized by the employer and insurer, and payments were begun at the rate of $20 a week, commencing September 23, 1929.

Meanwhile, on October 9, 1929, the employee filed his claim for compensation along with the first receipt and temporary agreement, and the cause was set down by the commission for a hearing on January 29, 1930. Testimony was taken on that date as well as upon two subsequent hearings; and on March 1, 1930, the commission entered its award, granting the employee compensation at the rate of $20 a week for 20 weeks, subject to the prior payment by the employer and insurer of the sum of $268.01, which left a balance due the employee of $131.99. The commission found that the employee's disability had been temporary total in character, and that no future partial disability was probable.

No appeal was taken from such award, and therefore, under section 3342, R. S. 1929 (Mo. St. Ann., § 3342), it became conclusive and binding as to the facts adjudicated thereby. However, on April 3, 1930, the employee filed his application for a rehearing and review upon the ground of a change in condition since the date of the first award. Such review was sought pursuant to the terms of section 3340, R. S. 1929 (Mo. St. Ann. § 3340), which provides that upon its own motion, or upon the application of any party in interest upon the ground of a change in condition, the commission may at any time upon a rehearing review any award, and on such review make an award ending, diminishing, or increasing the compensation previously awarded.

A hearing was had on the employee's application; evidence was introduced pro and con upon the question of a change in condition; and on May 22, 1930, the commission entered its award, finding in favor of the employer and insurer, and against the employee. In due course an appeal from such award was perfected by the employee to the circuit court, and on June 1, 1931, the award was affirmed by the court. So far as we are advised, no appeal was taken from the judgment of the circuit court.

While the appeal from the award of May 22, 1930, was pending undetermined in the circuit court, the employee, on May 6, 1931, filed a second application for a rehearing and review, based upon the ground of a change in condition for the worse since the time of the award upon the first application. A hearing was had, and on September 19, 1931, the commission entered its award, again finding against the employee, and in favor of the employer and insurer. It is this award which is in issue on this appeal.

Following the entry of the commission's award on September 19, 1931, the employee appealed to the circuit court, and on February 1, 1932, the circuit court entered its judgment, the material portion of which was as follows: "Wherefore, it is considered, adjudged, and decreed by the Court that the findings of the Missouri Workmen's Compensation Commission as made on the 19th day of September, 1931, on hearing on change of condition, be set aside on the ground that there was not sufficient competent evidence in the record to warrant the making of the award, and upon the ground that the evidence in the record shows there has been a change in claimant's condition for the worse since April 25, 1930, and upon the ground that the evidence in the record warranted the making of an additional award in...