Hohlstein v. St. Louis Roofing Co.

• Decision Date: 03 July 1931
• Parties: William Hohlstein, Jr., by William Hohlstein, Sr., His Guardian, v. St. Louis Roofing Company and Ocean Accident & Guarantee Company, Ltd., Appellants
• Court: Missouri Supreme Court

42 S.W.2d 573

328 Mo. 899

William Hohlstein, Jr., by William Hohlstein, Sr., His Guardian, v. St. Louis Roofing Company and Ocean Accident & Guarantee Company, Ltd., Appellants

Supreme Court of Missouri

July 3, 1931

Appeal from Circuit Court of City of St. Louis; Hon. Granville Hogan, Judge.

Transferred to St. Louis Court of Appeals.

Harold C. Ackert and Holland, Lashly & Donnell for appellants.

Sec 3341, R. S. 1929 (Workmen's Compensation Act, Sec. 43) if it can be construed to permit the full commission to proceed to consider an application for review and reverse the findings of fact, conclusions of law and the award made by the referee without hearing or notice thereof, is unconstitutional and void as depriving the employer and insurer (appellants herein) of due process of law under Art II, Sec. 30, Mo. Constitution, and Fourteenth Amendment of Constitution of the United States. St. Louis v. Railroad Co., 278 Mo. 205; State v. Broaddus, 315 Mo. 1279; Rusk v. Thompson, 170 Mo.App. 76; Gardner v. Robertson, 208 Mo. 610; State ex rel. Hurwitz v. North, 304 Mo. 607; Barber Asphalt Paving Co. v. Ridge, 169 Mo. 376; Wilcox v. Phillips, 260 Mo. 664; Shanklin v. Boyce, 275 Mo. 5; Hunt v. Searcy, 167 Mo. 158; State ex rel. Deems v. Holtcamp, 245 Mo. 655; Dartmouth College Case, 4 Wheat. 518, 4 L.Ed. 629; Hurwitz v. North, 271 U.S. 40, 70 L.Ed. 818; Baldwin v. Hale, 1 Wall. 223, 17 L.Ed. 531; Ray v. Norseworthy, 23 Wall. 128, 23 L.Ed. 116; Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215; Simon v. Craft, 182 U.S. 427, 21 S.Ct. 836, 45 L.Ed. 1165; Jacobs v. Roberts, 223 U.S. 261, 32 S.Ct. 303, 56 L.Ed. 429; Interstate Commerce Commission v. Railroad Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; Garfield v. United States, 211 U.S. 249, 29 S.Ct. 62, 53 L.Ed. 168.

George A. McNulty and Oliver F. Erbs for respondent.

(1) Upon review of a referee's award by the full commission, neither notice nor hearing is required by the Missouri Workmen's Compensation Act. Sec. 3341, R. S. 1929. (2) Notice and an opportunity to be heard are not written into Section 43 by necessary implication of law, nor is Section 43 unconstitutional because it does not provide for notice or hearing. 12 C. J. 1229; Secs. 3341, 3349, R. S. 1929; Fountaine's Case, 246 Mass. 513, 141 N.E. 594. (3) The Commission did not abuse its discretion in reviewing the record of the case made before the referee without hearing the parties and their witnesses. Devine's Case, 236 Mass. 508, 129 N.E. 415; Taylor v. Blackwell Lbr. Co., 218 P. 356; Southeastern Express Co. v. Edmondson, 30 Ga.App. 697, 119 S.E. 39; Bimel Spoke & Auto Wheel Co. v. Loper, 117 N. E. (Ind.) 527; Fountaine's Case, 246 Mass. 513, 141 N.E. 594.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This is an appeal to the Supreme Court taken by the defendants, employer and insurer respectively, from a judgment of the Circuit Court of the City of St. Louis, affirming an award of the Workmen's Compensation Commission in favor of the guardian of the employee, William Hohlstein, Jr.

He was a roofer by trade and while he was working for the defendant St. Louis Roofing Company, he fell from a roof in St. Louis, on March 29, 1927. It was not disputed that he received serious permanent injuries to his arms and legs from the fall and that these injuries were by accident arising out of and in the course of his employment. The employer and insurer immediately started the payment of compensation at the rate of $ 20 a week, and such compensation has been paid regularly ever since. It is to be noted that the weekly installment is the largest authorized by the Compensation Act. Subsequently, a little over two years after the accident, on August 22, 1929, the parties informally appeared at the office of the Missouri Workmen's Compensation Commission in St. Louis, before one of the referees of the Commission, for the purpose of determining a "rating" for the various permanent partial disabilities suffered by Hohlstein, Jr. The question whether a state of insanity, which had come upon him, was caused or aggravated by the fall, was excluded from consideration at this conference by agreement. Pursuant to the conference before the referee, a "rating" for his injuries was duly made. The total compensation agreed upon amounted to 304.15 weeks at $ 20 per week, which rating for permanent partial disability suffered by the employee was satisfactory to all parties.

On or about November 13, 1929, the employee filed a formal claim for compensation with the Missouri Workmen's Compensation Commission, in which he claimed, in adddition to the permanent partial disability, as agreed upon at the conference, that he was entitled to compensation for total permanent disability, for the reason that the accident had resulted in permanent, incurable insanity. It was stated in the claim:

"Parties have agreed upon a settlement for all injuries other than insanity. This agreement has been approved by Referee Graff of your St. Louis office. Insurer, however, denies that employee's mental condition was proximately caused by the accident. This will be the only controverted question before the Commission."

The employer and insurer filed their answer to the claim denying all its allegations except that they admitted that the relation of employer and employee existed on March 29, 1927, the date of the accident. Upon due notice the parties appeared before Referee Friedewald, one of the referees of the Workmen's Compensation Commission, on January 6, 1930, at which time the incompetency of William Hohlstein, Jr., was suggested (he previously having been adjudged a person of unsound mind by the Probate Court of the City of St. Louis), and thereupon William Hohlstein, Sr., his duly appointed guardian, was substituted as party claimant in the proceeding.

At the commencement of the hearing upon the claim for total disability before the referee, the parties stipulated of record that, at the time of the accident, employer and employee were operating under the Workmen's Compensation Act; that a rating of 304.15 weeks for permanent partial disability was made by the Commission on August 21, 1929, "and the only question to be determined by this hearing (namely upon the claim for total disability) is whether or not the mental condition is the result of this accident and whether or not there should be a total disability, and if not, the rating made on August 21, 1929, is agreeable to both parties." The parties then proceeded with the taking of testimony on the question whether or not the accident had caused or aggravated the employee's mental condition, it being admitted that at the time of the hearing the employee was a person of unsound mind.

The hearing was closed on January 28, 1930, which was its second day, and the referee made an award on February 8, 1930, for permanent partial disability in the sum of $ 20 per week for 304.15 weeks, beginning March 29, 1927, the date of the accident, subject to a credit of $ 2,960, which had been paid to the date of the award. The findings of fact by the referee state the total compensation for 304.15 weeks to be $ 6,083. In a statement of facts and rulings of law by the referee, filed with the award, he said that "considering the evidence, I am rather inclined to accept the belief that the accident did not aggravate his (employee's) mental condition." As to total permanant disability due to the physical injuries to the arms and legs of the employee, the referee in his statement said: "The evidence, I think, clearly eliminated this from consideration."

The claimant made timely application for a review by the full Commission of the award which had been made in its name by its referee. The application for review was received by the Commission at its office in Jefferson City on February 15, 1930, and the claim was taken as submitted on review on the same day. The Commission, on February 24, 1930, made a final award for total permanent disability in the sum of $ 20 per week for 300 weeks and thereafter the sum of $ 13.75 per week for life. The Commission filed with its award findings of fact, and a statement of facts and rulings of law. In the latter it expressed the opinion that, although the employee's mind was previously affected, yet that the accident had aggravated his mental condition. It also expressed the belief in this statement that under the evidence the employee had suffered permanent total disability by reason of his physical injuries. Appellants devote much of their brief and argument to an attack upon the conclusion of the Commission respecting permanent total disability expressed in its statement of facts. For this reason we would give more space to the Commission's statement, but for the view which we take of the jurisdiction of this case. From the final award of the Commission upon review, defendants appealed to the circuit court, which, as said before, affirmed the award and granted an appeal to this court.

Upon the record the Commission took as submitted the application of the employee for a review of the "award, order or decision" of the referee, without notice to the parties and without further hearing or argument.

I. The first question to be decided in this case is whether this court has jurisdiction. This question has not been raised by either party, but it is the duty of this court to determine in each case whether it has jurisdiction of an appeal although its jurisdiction is not challenged. [Stock v. Schloman (Mo. Sup.), 18 S.W.2d 428.] As the court of last resort, entrusted by the Constitution with a general superintending control over all inferior courts, the Supreme Court should be ever ready to disavow jurisdiction which has been thrust...