Kostron v. American Packing Co.

• Decision Date: 02 February 1932
• Citation: 45 S.W.2d 871,227 Mo.App. 34
• Parties: IGNATZ KOSTRON, EMPLOYEE, RESPONDENT, v. AMERICAN PACKING COMPANY, EMPLOYER, AND T. H. MASTIN AND COMPANY, INSURER, APPELLANTS
• Court: Missouri Court of Appeals

45 S.W.2d 871

227 Mo.App. 34

IGNATZ KOSTRON, EMPLOYEE, RESPONDENT, v. AMERICAN PACKING COMPANY, EMPLOYER, AND T. H. MASTIN AND COMPANY, INSURER, APPELLANTS

Court of Appeals of Missouri, St. Louis

February 2, 1932

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

AFFIRMED.

Judgment affirmed.

N.W Hartman and Fordyce, Holliday & White for appellants.

(1) Employee, having failed to file his claim for compensation within the time specified by the Missouri Workmen's Compensation Act, is forever barred. Section 39, Missouri Workmen's Compensation Act, Laws 1927; Schrabauer v Schneider Engraving Product, Inc., 25 S.W.2d 529; Wheeler v. Missouri Pacific Railroad, 33 S.W.2d 179, 182-183; Murphy v. Burlington Overall Co. et al., 34 S.W.2d 1035, 1038; 37 C. J. 897; Bricker v. Gille Mfg. Co., 35 S.W.2d 662; Gendron et al. v. Dwight Chapin & Co., 37 S.W.2d 486; Wadley v. Employers Liability Assurance Corp., 37 S.W.2d 664; In re Fells, 115 N.E. 430 (Mass., 1917); Texas Indemnity Ins. Co. v. Bailey, 297 S.W. 1042; Clay v. Walker, 6 S.W.2d 961. (2) The Missouri Workmen's Compensation Commission is without jurisdiction to pass on the claim filed by the employee, for the said claim was not filed within the time prescribed by law. Section 39, Missouri Workmen's Compensation Act, Laws 1927; Schrabauer v. Schneider Engraving Product, Inc., 25 S.W.2d 529; Wheeler v. Missouri Pacific Railroad, 33 S.W.2d 179, 182-183; Murphy v. Burlington Overall Co. et al., 34 S.W.2d 1035, 1038; 37 C. J. 897; Bricker v. Gille Mfg. Co., 35 S.W.2d 662; Gendron et al. v. Dwight Chapin & Co., 37 S.W.2d 486; Wadley v. Employers Liability Assurance Corp., 37 S.W.2d 664; In re Fells, 115 N.E. 430 (Mass., 1917); Texas Indemnity Ins. Co. v. Bailey, 297 S.W. 1042; Clay v. Walker, 6 S.W.2d 961; Higgins v. Heine Boiler Co. et al., 41 S.W.2d 565. (3) The employee is not entitled to recover, for the trial court erred in reversing and remanding the cause based on conclusions which were not limited to questions of law. Bricker v. Gille Mfg. Co., 35 S.W.2d 662, 666; Sec. 3342, R. S. Mo. 1929; Waterman v. Chicago Bridge & Iron Co., 41 S.W.2d 575; United States Fidelity & Guaranty Co. v. Christian, 133 S.E. 639; Glaze v. Hart, 36 S.W.2d 684; Wadley v. Employers Liability Assurance Corp., 37 S.W.2d 664, 668; Wheat v. Whitney & Son et al., 34 S.W.2d 160; Gendron v. Dwight Chapin & Co., 37 S.W.2d 486; De May v. Liberty Fdry., 37 S.W.2d 640; De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961. (4) The employee is not entitled to recover, for the trial court erred in reversing and remanding the cause in making new findings of fact which were not in the record. Bricker v. Gille Mfg. Co., 35 S.W.2d 662, 666; Sec. 3342, R. S. Mo. 1929; Waterman v. Chicago Bridge & Iron Co., 41 S.W.2d 575; United States Fidelity & Guaranty Co. v. Christian, 133 S.E. 639; Glaze v. Hart, 36 S.W.2d 684; Wadley v. Employers Liability Assurance Corp., 37 S.W.2d 664, 668; Wheat v. Whitney & Son et al., 34 S.W.2d 160; Gendron v. Dwight Chapin & Co., 37 S.W.2d 486; De May v. Liberty Fdry., 37 S.W.2d 640; De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961. (5) Findings of fact and award of Commission have force and effect of verdict of jury, and findings of fact made by the Commission within its powers shall be conclusive and not disturbed by the trial court. Rolens v. Keller Constr. Co., 24 S.W.2d 1077; Kinder v. Hannibal Car Wheel & Fdry. Co. et al., 18 S.W.2d 91; State ex rel. Brewer-Clark Syrup Co. v. Missouri Workmen's Comp. Com. et al., 8 S.W.2d 897; Hager v. Pulitzer Pub. Co. et al., 17 S.W.2d 578; Cotter v. Valentine Coal Co. et al., 14 S.W.2d 660; State ex rel. May Department Stores Co. v. Haid, 38 S.W.2d 44; Woods v. American Coal & Iron Co. et al., 25 S.W.2d 144; Stone v. Blackmer Post Pipe Co., 27 S.W.2d 459; Hammack v. West Plains Lbr. Co. et al., 30 S.W.2d 650; Waterman v. Chicago Bridge & Iron Co., 41 S.W.2d 575. (6) Under the Missouri Workmen's Compensation Act the evidence heard before the Commission alone constitutes the transcript of the evidence on appeal and no additional evidence shall be taken in consideration upon appeal. R. S. Mo. 1929, sec. 3342; Waterman v. Chicago Bridge & Iron Co., 41 S.W.2d 575; Phil Hollenbach Co. v. Hollenbach, 13 A. L. R. 524; United States Fidelity & Guar. Co. v. Christian, 133 S.E. 639; Bricker v. Gille Mfg. Co., 35 S.W.2d 662; Davis v. Carp, 258 Mo. 686. (7) The trial court, on appeal, shall review only questions of law and may modify or reverse or remand for rehearing or set aside the award of the Missouri Workmen's Compensation Commission on four specific grounds provided by statute, and the trial court cannot presume facts to the contrary. Sec. 3342, R. S. Mo. 1929; Waterman v. Chicago Bridge & Iron Co., 41 S.W.2d 575; Bricker v. Gille Mfg. Co., 35 S.W.2d 662; Glaze v. Hart, 36 S.W.2d 684; Wadley v. Employers Liability Assur. Corp., 37 S.W.2d 665. (8) A claim for compensation within the period fixed by the Missouri Workmen's Compensation Act is jurisdictional and mandatory and is a condition precedent to the right to maintain such proceedings. Sec. 39, Missouri Workmen's Compensation Act, Laws 1927; Schrabauer v. Schneider Engraving Product, Inc., 25 S.W.2d 529; Wheeler v. Mo. P. R. R. Co., 33 S.W.2d 182; Murphy v. Burlington Overall Co. et al., 34 S.W.2d 1038; 37 C. J. 686, 732; London Guarantee and Accident Co. v. Industrial Commission, 263 P. 405; City of Rochelle v. Industrial Commission, 332 Ill. 386, 163 N.E. 789; American Car & Foundry Co. v. Industrial Commission, 335 Ill. 322, 167 N.E. 80; Dochoff v. Globe Constr. Co., 212 Mich. 166, 180 N.E. 414; O'Seau v. E. W. Bliss Co., 188 A.D. 385, 177 N.Y.S. 203; Maryland Cas. Co. v. Industrial Commission, 278 P. 60; Higgins v. Heine Boiler Co. et al., 41 S.W.2d 565.

L. L. Bornschein for respondent.

NIPPER, J. Haid, P. J., and Becker, J., concur.

OPINION

NIPPER, J.

This is an appeal from the judgment of the circuit court of the City of St. Louis, reversing and remanding the final award of the Workmen's Compensation Commission, in favor of the American Packing Company, employer, and T. H. Mastin and Company, insurer, against Ignatz Kostron, employee, for personal injuries resulting from an accident which occurred to plaintiff on June 29, 1929, while he was engaged in working for said employer at its plant located in St. Louis, Missouri.

Plaintiff, on said date, was employed as a laborer by the American Packing Company, and while pulling a hand truck said truck broke through a wooden runway over which it was being drawn by plaintiff, and while he was in the act of removing this truck he sustained an injury to his back and left groin.

The defense is that the employee did not file his claim for compensation within six months from the date of his injury, and that he is therefore barred from recovery. The Commission sustained this contention of defendant, and the circuit court reversed the action of the Commission, on the ground that by reason of certain facts the Statute of Limitations had been tolled, and that the Commission acted without and in excess of its powers. It becomes necessary, therefore, to state the facts as revealed by this record, which facts are practically undisputed.

On the 29th of June, 1929, as above stated, after this truck which plaintiff was pulling had broken through the runway, and while he was endeavoring to pull it out, he noticed a pain in his back. This pain extended around and down to the front. He told his fellow employee, who was working with him, about it. The fellow worker, Straub, advised him to see a doctor. Plaintiff continued with this work, just as he had been doing, for three or four days, and then went into the office and was sent by some one in the office to see a doctor. Until that time plaintiff had made no complaint to anybody except Straub, who was working with him.

This doctor named Kilker told him that he had a little strain and gave him some salve and pills, and told him to come back. When he came back the doctor asked him how he felt, and he informed the doctor that when he lifted anything he felt pain, and the doctor gave him some more medicine. He went to the doctor four or five times. He said this pain bothered him a little bit after that, but that he continued doing the same kind of work that he had been doing, except that he did not lift as much. The doctor told him that he could go ahead with his work, but to take it a little easy. Plaintiff lost no time, and continued doing the same character of work he had been doing until October 22nd, following, when he was forced to quit work, and remained home until about the 3rd of March, 1930. On the 8th of July, following the accident, the company sent notice to the Workmen's Compensation Commission. A claim for compensation was filed on April 16, 1930.

Dr. Kilker, to whom plaintiff was first sent, testified that upon examination of plaintiff he found no objective symptoms; that he treated plaintiff for pain he complained of in the left lower abdominal region; that he treated him five times during the month of July; that the region in which plaintiff complained of pain was over the muscular region between the ring and the midline of the body; that there was no discoloration. He also stated, when asked if there was anything in plaintiff's condition on any of his visits in July when he treated him, that would give any indication of a condition that would so increase in severity that it would cause plaintiff to lose time in October, that there was not, and if there had been, or had he considered there was, he would have had him to lay off at the time. He said he did not consider plaintiff's condition such that disability was warranted, or the losing of time.

When plaint...