Komosa v. Monsanto Chemical Co.

• Decision Date: 01 October 1957
• Docket Number: No. 29737,29737
• Citation: 305 S.W.2d 506
• Parties: John J. KOMOSA, Employee (Plaintiff), Respondent, v. MONSANTO CHEMICAL COMPANY, Employer, and Liberty Mutual Insurance Company, Insurer (Defendants), Appellants.
• Court: Missouri Court of Appeals

Page 506

305 S.W.2d 506

John J. KOMOSA, Employee (Plaintiff), Respondent, v. MONSANTO CHEMICAL COMPANY, Employer, and Liberty Mutual Insurance Company, Insurer (Defendants), Appellants.

No. 29737.

St. Louis Court of Appeals, Missouri.

Oct. 1, 1957.

Motion for Rehearing or for Transfer to Supreme Court Denied

Oct. 29, 1957.

Evans & Dixon, John R. Dixon, and Gerald A. Rimmel, St. Louis, for appellants.

Paul H. Koenig and William B. Quinn, St. Louis, for respondent.

MATTHES, Judge.

The Monsanto Chemical Company, employer, and Liberty Mutual Insurance Company, insurer, have appealed from an order of the circuit court overruling a motion to quash an execution and garnishment in aid thereof which were issued to effect collection of a judgment in a Workmen's Compensation proceeding.

The employee, John J. Komosa, respondent herein, was involved in an accident, arising out of and in the course of his employment, on July 17, 1950, from which an injury to his back resulted. On April 21, 1953, the employee filed claim for compensation in which he alleged that to the date of the filing of the claim no temporary disability had resulted; that the weeks of 'probable future temporary disability' were unknown; and that the nature of any permanent injury was undetermined. He claimed compensation 'As per Act'. The employer and insurer filed their answer to the claim alleging that the 'nature and extent of injury' were to be determined by the Division of Workmen's Compensation.

At the hearing of the claim before the referee on February 4, 1954, the evidence disclosed that the employee returned to work on the day following the accident, and worked continuously until the time of the hearing, performing the same type of work as he had prior to the accident; there is no evidence in the record to indicate that employee lost any wages as a result of the accident or the resulting injury. The employer and insurer provided all necessary medical care for the injury sustained.

On the question of the nature and extent of the injury sustained by employee there was a conflict in the medical testimony. Dr. Samson Wennerman testified that he had seen the employee for examination on six occasions over a period of eight months up to the date of the hearing. His conclusion was that as a result of the accident, the employee had sustained an injury to his back resulting in a permanent partial disability of 40% of his body as a whole. On the other hand, Dr. Leonard Furlow, on behalf of the employer and insurer, testified that he had, after two examinations, reached the conclusion that the employee had sustained a permanent partial disability of 15% of his body as a whole. Dr. Durlow entertained the opinion that the employee's disability was more functional than organic.

On February 17, 1954, the referee entered an award 'for permanent partial disability in the sum of $25 per week for 85 1/3 weeks, * * * said payments to begin as of July 18, 1950.' The award was made subject to a lien in favor of employee's attorney in an amount equal to 33 1/3% of $133.33 for legal services rendered employee. In his findings the referee found the total amount due the employee was $2,133.33. There was no award of temporary total disability, and no findings by the referee that any was due.

The employee, being dissatisfied with the amount of the award of the referee, filed an application for review, bearing date of February 24, 1954. The employer and insurer filed an answer to the application for review wherein they requested the Industrial Commission of Missouri to reduce the award.

The Industrial Commission affirmed the award of the referee by its order entered on April 15, 1954. From this action employee prosecuted his appeal to the Circuit Court of the City of St. Louis, where, on June 13, 1955, that court entered its order approving and confirming the award and findings of the Industrial Commission. In due time the employee appealed to this court, where the judgment of the circuit court was affirmed on February 21, 1956. See, Komosa v. Monsanto Chemical Co., Mo.App., 287 S.W.2d 374. The mandate of this court was forwarded to and received by the Clerk of the Circuit Court on March 14, 1956, and filed by him on March 20, 1956.

The Honorable Thomas L. Sullivan, an attorney at law, who then represented the employee, filed an affidavit in the circuit court stating that as of April 4, 1956, there was due, on account of the award, the sum of $2,133.33, plus interest in the amount of $628.43, or a total of $2,761.76. In said affidavit it is stated:

'There is due and unpaid on the judgment of 85 1/3 week of compensation at $25.00 per week beginning the 18th day of July, 1950, the principal of $2133.33, plus the interest thereon at 6% according to Sec. 187.160-2 R.S. Mo.1949

'On the initial period of 85 1/3 weeks at 6% according to Sec. 187.160-2 R.S.Mo. 1949. the weekly amounts due for the varying periods of from 1 to 85 weeks. The 6% interest on the principal of $2133.33 is $128.00 per year or $2.46 per week.

                'There is due on April 4, 1956, the following
                Principal.....................  $2,133.33
                Interest 7-17-50 to 3-7-52....     106.59
                Interest 3-8-52 to 3-7-56 (4x
                  128.00).....................     512.00
                Interest 3-9-56 to 4-4-56 (4x
                  2.46).......................       9.84
                                                ----------
                                                $2,761.76"
                

Immediately upon the filing of this affidavit the Circuit Clerk issued a writ of execution directed to the Sheriff of the City of St. Louis commanding him to levy on the goods and chattels and real estate of Monsanto Chemical Company and Liberty Mutual Insurance Company to the extent of $2,761.76, plus costs in the amount of $15.65. To this writ the Sheriff filed a nulla bona return. Thereupon, a writ of garnishment in aid of execution was served by the Sheriff on the Boatmen's Bank, returnable the first Monday in June, 1956. It was to this writ of execution and garnishment that the employer and insurer filed their joint motion to quash. Said motion alleged that the award in question had been paid and that no interest, either before or after the award, was due the employee. To this motion the employee filed an answer which, in general, denied the allegations of said motion.

On March 1, 1954, Mr. C. Lawrence Mueller, who then represented the employer and insurer, wrote Mr. Sullivan as follows:

'This is to confirm our telephone conversation of February 25, 1954, to the effect that the Liberty Mutual Insurance Company, who this office represents, is agreeable to paying the award as written by the referee in the above captioned case.'

To this letter, Mr. Sullivan replied under date of March 2, 1954, as follows:

'My client is willing to accept any money you wish to pay on the award as written. He will give you a receipt for the monies paid. He will not, of course, dismiss his appeal or sign any papers indicating that he is ceasing in the appeal of the case.'

Upon receiving this letter, Mr. Mueller instructed the claims office of the Liberty Mutual Insurance Company to issue a check to Mr. Komosa and his attorney, Mr. Sullivan. Pursuant to these instructions, a check, numbered D-2922, was sent to Mr. Komosa and Mr. Sullivan. It was in the amount of $2,133.33 and bore a notation on it stating: 'Settlement as per award.' This check was returned by Mr. Sullivan with a letter dated March 21, 1954, the material portions of which are as follows:

'The check bears the clause 'Settlement as per award.' I suppose this is an attempt to stop the running of interest on the case. There is now due as per work sheet attached (or was 3-13-54) $365.05 interest.

'My client is willing to accept any payment on the award that you wish to make at this time but is not willing to settle the case so as to stop his appeal in the case.

'If you will remove the word 'settlement' from the check and return it with your letter that the payment is not to be construed as a settlement of the claim or an acceptance of the award as is, my client will be pleased to accept the check.'

Attached to this letter was a paper entitled 'Interest calculation.' According to this, $365.05 was calculated by Mr. Sullivan to be due on the award of February 17, 1954, for the period beginning July 18, 1950, to March 13, 1954.

After receipt of this letter Mr. Mueller instructed the claims office of the Liberty Mutual Insurance Company to issue a new check to Mr. Komosa and Mr. Sullivan with the word 'settlement' removed. A new check, dated March 29, 1954, numbered D-3492, in the sum of $2,133.33, payable to John Joseph Komosa and his attorney, Thomas L. Sullivan, was sent to Mr. Sullivan. The word 'settlement' was not on the check, but it did bear the notation, 'as per award (85 wks. at $25.00).' No communication accompanied the check. Mr. Sullivan stated that he received this check and had retained it to the date of the hearing. He testified further that although he had requested a letter from the Liberty Mutual Insurance Company stating that the acceptance of the money would not be taken as a dismissal or conclusion of the proceedings, such a letter was not forthcoming. He also stated that he did not intend to deposit the check or channel it through banks for payment because of the case of Fear v. Ebony Paint Mfg. Co., 238 Mo.App. 560, 181 S.W.2d 559. No order was ever issued by the Liberty Mutual Insurance Company stopping payment on the check. At the trial an offer of proof was made that upon the issuance of the check in question, a reserve was set up by the insurance company to cover the amount of the check which was available thereafter to meet its payment. Evidence was also introduced showing the financial stability of the Liberty Mutual Insurance Company and its ability to honor and pay the check if and when presented for payment.

On March 2, 1956, Mr. Mueller wrote Mr. Sullivan requesting that he and his client sign final receipts required...