Hill v. Brown & Williamson Tobacco Corporation

• Decision Date: 29 October 1936
• Docket Number: No. 5653.,5653.
• Citation: 98 S.W.2d 156
• Court: Missouri Court of Appeals
• Parties: HILL v. BROWN & WILLIAMSON TOBACCO CORPORATION et al.

98 S.W.2d 156

HILL v. BROWN & WILLIAMSON TOBACCO CORPORATION et al.

No. 5653.

Springfield Court of Appeals. Missouri.

October 29, 1936.

Appeal from Circuit Court, Howell County; Will H. D. Green, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Randall N. Hill, claimant, opposed by the Brown & Williamson Tobacco Corporation, employer, and the Liberty Mutual Insurance Company, insurer. From a judgment affirming an award of the Workmen's Compensation Commission, the employer and the insurer appeal.

Affirmed.

Mosman, Rogers, Bell & Buzard and Don E. Black, all of Kansas City, for appellants.

Trusty & Pugh, M. D. Campbell, Jr., Ben D. Pugh, and Guy W. Green, Jr., all of Kansas City, for respondent.

SMITH, Judge.

This case comes to the writer on reassignment. It is an action arising under the Missouri Workmen's Compensation Act (Rev.St.1929, § 3299 et seq., see Mo. St.Ann. § 3299 et seq., p. 8229 et seq). On August 3, 1933, respondent, Randall N. Hill, was in the employ, in Howell county, Mo., of the appellant Brown & Williamson Tobacco Corporation as a traveling salesman. While so engaged, he sustained injuries such as would entitle him to receive compensation, under the provisions of said Compensation Act, from his employer, Brown & Williamson Tobacco Corporation, and the Liberty Mutual Insurance Company, as insurer, of said employer, both said Randall N. Hill and said Brown & Williamson Tobacco Corporation, being subject at said time to the provisions of said Compensation Act.

On July 30, 1934, the respondent, Hill, filed his claim for compensation with the Missouri Workmen's Compensation Commission in which he alleged that he had received injuries on August 3, 1933, which resulted as he alleged in permanent total disability.

On August 9, 1934, an answer to the employee's claim for compensation was filed wherein appellant stated the following:

"Employer, Brown & Williamson Tobacco Corporation, and insurer, Liberty Mutual Insurance Company, further state that they have been and are at the present time, paying claimant weekly compensation in accordance with compensation law and expect to do so for an indefinite period. As it is impossible at this time to determine claimant's disability, we request that no hearing be held at this time."

Shortly thereafter, the cause was set down for hearing by the Compensation Commission, and on December 17, 1934, the parties appeared at a hearing before Commissioner James. At said time, it was agreed that the claimant, Hill, had been paid 66 weeks of compensation at the maximum rate of $20 per week, or a total of $1,320.

On January 9, 1935, Commissioner James made an award and finding in favor of Randall N. Hill to the effect that Hill had sustained a permanent total disability, and was entitled to compensation at the rate of $20 per week for 300 weeks and the further sum of $11.74 per week thereafter for life, together with the allowance of $130.60 for medical aid.

Thereafter, and within due time, the employer and insurer appealed to the entire commission. The entire commission made and entered its final award on February 19, 1935, in favor of the claimant, Hill, and against the employer, Brown & Williamson Tobacco Corporation, and its insurer, Liberty Mutual Insurance Company, said award being as follows:

For medical aid the sum of $130.60.

For permanent total disability the sum of $20 per week for 300 weeks and thereafter the sum of $7.50 per week for life, payments to begin as of August 3, 1933, subject to a credit of $1,320, previously paid employee.

Thereafter, and within due time, the employer, Brown & Williamson Tobacco Corporation, and its insurer, Liberty Mutual Insurance Company, appealed to the circuit court of Howell county, Mo. The award of the entire commission was there affirmed. An appeal was duly taken to this court.

The case is before us under two assignments of error. We shall consider these assignments in the order presented, and in considering them we shall quote such of the facts as shown by the abstract before us as we may deem necessary. The assignments we quote as follows:

"Assignments of Error

"1. (a) The court erred in sustaining and affirming said final award of Missouri Workmen's Compensation Commission for the reason that there has been no dispute or controversy arisen between the employee and employer, and its insurer, as to the payment of compensation, as contemplated by section 3338 of the Revised Statutes of Missouri, 1929 [Mo.St.Ann. § 3338, p. 8271].

"(b) The court, in sustaining and affirming said final award of the Compensation Commission, erred in holding that said Compensation Commission, in making said final award, did not act without or in excess of its powers.

"2. The court erred in sustaining and affirming said final award of the Missouri Workmen's Compensation Commission in that the record and evidence of said commission shows that there was not sufficient competent evidence in said record to warrant the making of said award."

The questions under these assignments may be briefly stated as, first, was there really any dispute or controversy between the employee and the employer as contemplated by the provisions of section 3338 of the Revised Statutes of Missouri (Mo. St.Ann. § 3338, p. 8271), and was the Compensation Commission acting without authority in holding hearings if there was no dispute or controversy, and, second, was there sufficient competent evidence before the commission to warrant the finding that the employee had sustained a permanent total disability.

Under the provision of section 3338, R.S.Mo.1929, there must be a failure to reach an agreement in regard to compensation or a disagreement as to the continuance of payments, before the commission is authorized to hold hearings. The wording of this section is as follows:

"§ 3338. Settlement—Failure to Agree, Commission to Hold Hearings.—If the employer and the injured employee or his dependents fail to reach an agreement in regard to compensation under this chapter, or if they have reached such an agreement which has been signed and filed with the commission and compensation has been paid or is due in accordance therewith, and the parties thereto then disagree as to the continuance of any weekly payment under such agreement, either party may make an application to the commission for a hearing in regard to the matters at issue and for a ruling thereon. Immediately after such application has been received the commission shall set the date for a hearing, which shall be held as soon as practicable, and shall notify the parties at issue of the time and place of such hearing."

It is necessary for us to determine by the record before us if there really was a difference existing between the parties. If we should find that there was a difference, or that the parties so acted towards each other as to create a difference, then it follows that the commission had jurisdiction of the matter, and was acting within its power.

In consideration of this question we find from the record before us some facts that are well established. The proof is conclusive that the claimant was an employee of Brown & Williamson Tobacco Corporation, and that the Liberty Mutual Insurance Company was the carrier of the insurance. There is no controversy, except in the pleadings, that the claimant was injured at the time alleged, and while employed by the Tobacco Corporation, yet we find that, when the matter was before the commission, the attorney representing the employer and the insurer would not admit the injury and would not admit the employment, when asked by the commissioner if those facts would be admitted.

We find from the pleadings that in the claim filed the claimant alleged permanent and total disability, and that the employer and insurer filed a general denial of the allegations, and in this connection the record fails to show any pleadings of any kind filed with the commissioner or later with the full commission attacking in any way the jurisdiction of the commission in the hearing of the case. In fact, judging from the face of the pleadings, there was an admission that there was a controversy existing, and that it was such a controversy as to give the commission jurisdiction of the case. After Commissioner James had heard the evidence in the first instance and had made his award in favor of the claimant, there was a written application filed by the attorney for the employer and insurer for a hearing before the full commission, claiming that there was insufficient evidence to support the finding of Commissioner James, yet in this there was no complaint that the commission was without authority to hear the complaint.

The record shows that the claimant was permitted to amend his claim to include $130.60 for medical aid, and this item was contested by the employer and insurer.

There was evidence offered by the claimant that the insurer failed to pay compensation while he was in Oklahoma City for medical treatment. There was also offered evidence that at one time the insurer was at least 15 weeks behind with the payments to the claimant.

There was also offered in evidence a written compromise agreement signed by the employee and the employer and insurer wherein they had agreed to settle the claim for a definite sum therein stated. This settlement was not approved by the commission, and was therefore ineffective, but it was offered in evidence as an admission that there was a difference between the parties. The paragraph, in this offer of compromise relied upon here, is in words and figures as follows: "The disability at this time claimed by the employe is disputed by the employer and insurer and for that reason it is agreed by all said parties that at this time they shall and do hereby enter into a compromise lump sum settlement under section 3333 of the R.S. of Mo.1929 [Mo.St.Ann. § 3333, p. 8267] for the sum of...