O'Malley v. International Motor Truck Corp.

• Decision Date: 07 October 1930
• Docket Number: No. 20932.,20932.
• Citation: 31 S.W.2d 554
• Court: Missouri Court of Appeals
• Parties: JERRY F. O'MALLEY (EMPLOYEE), RESPONDENT, v. MACK INTERNATIONAL MOTOR TRUCK CORPORATION (EMPLOYER), AND ZURICH GENERAL ACCIDENT & LIABILITY INSURANCE COMPANY, LTD., A CORPORATION (INSURER), APPELLANTS.

31 S.W.2d 554

JERRY F. O'MALLEY (EMPLOYEE), RESPONDENT, v. MACK INTERNATIONAL MOTOR TRUCK CORPORATION (EMPLOYER), AND ZURICH GENERAL ACCIDENT & LIABILITY INSURANCE COMPANY, LTD., A CORPORATION (INSURER), APPELLANTS.

No. 20932.

St. Louis Court of Appeals. Missouri.

Opinion filed October 7, 1930.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED.

M.L. Litchtenstadt and Hensley, Allen & Marsalek for appellant.

(1) The respondent's claim is barred by limitation. Where the act prescribes a time limit within which a claim must be filed, such provision is mandatory, and unless complied with the claim is barred. Sec. 39, Workmen's Compensation Act, Laws 1927, p. 511; Osagera v. Schaff, 293 Mo. 333; Peterson v. Fisher Body Co., 201 Mich. 529; Haiseleden v. Acc. Board, 275 Ill. 114; Twonko v. Rome, etc. Co., 224 N.Y. 263, 17 N.C.C.A. 172; Smith v. Solvay Process Co. (Kan.), 100 Kan. 40. (a) The filing of a settlement or final receipt for compensation cannot be construed as equivalent to the filing of a claim for compensation, without disregarding the plain meaning of the language employed in the act. Sections 35, 36, 39, 40 and 41, Workmen's Compensation Act, Laws 1927, pp. 510-512; DeLucca v. Vezzetti (N.J.), 128 Atl. 545; Baase v. Coal Co., 202 Mich. 59, 167 N.W. 954; Fidelity & Cas. Co. of N.Y. v. Ind. Acc. Comm. (Cal.), 170 Pac. 1112; Kaluki v. American C. & F. Co., 200 Mich. 604; Central L. & C. Works v. Comm., 209 Ill. 436. (b) Nor can the limitation be construed to depend on the date the commission disapproves a settlement or final receipt filed with it, without disregarding the plain language of section 39, which fixes the "date of the last payment" as the commencement of the limitation period. It is the duty of the court, in construing the law, to give effect to all of its provisions if possible. Macke v. Byrd, 131 Mo. 682; State ex rel. v. Roach, 258 Mo. 553; Miller v. Ind. Acc. Comm., 172 Cal. 473; Rhode v. Ind. Comm., 108 Ore. 433; Stertz v. Comm., 91 Wash. 588. The final receipt filed with the commission, which sets forth an injury to respondent's arm, could not in any event be considered a claim for the inguinal hernia which subsequently developed, and was alleged to have resulted from the same accident. Ehrhart v. Ind. Acc. Comm., 172 Cal. 621; Ryan's Case, 123 Me. 527; Cagle v. Mining Co., 112 Okla. 247. (2) There is not sufficient competent evidence in the record to support the award. The evidence, after giving respondent the benefit of all reasonable inferences following thereon, is insufficient to show that his hernia resulted from the accident. Smith v. Levis-Zukoski M. Co., 14 S.W. (2d) 470; Perkinson v. Comm., 305 Ill. 625. (3) There is no statutory basis for an award of medical aid and incidental disability, under the facts in this case. (a) No award of medical and hospital benefits, after sixty days, can be made, except as an additional allowance for similar treatment to that received during the sixty days following the injury. Sec. 13, Compensation Act, Laws 1927, p. 498; Epsten v. Hancock Epsten Co. (Neb.), 163 N.W. 767; State ex rel. Anseth v. Dist. Ct., 134 Minn. 16; In re McKenna, 117 Me. 179; Born & Co. v. Durr (Ind.), 116 N.E. 428; City of Milwaukee v. Miller, 154 Wis. 652, 144 N.W. 188; Balderson v. Wallace & Co. et al. (N.Y.), 212 App. Div. 189, l.c. 190-1.

Davis & Todd and A.M. Hoenny for respondent.

(1) Respondent's claim was properly before the commission and was not barred by limitation. All agreements and settlements under the act must be approved by the commission before they become valid. Sections 35 and 36, Workmen's Compensation Act, Laws 1927, pp. 510-511. Due filing of a notice and report of accident with the commission and the filing of the agreement and receipt left the matter within the jurisdiction of commission. Sections 35, 36, Workmen's Compensation Act, Laws 1927, pp. 510, 511; Section 42, Workmen's Compensation Act, Laws 1927, p. 512; Curtis v. Slater Construction Co., 194 Mich. 259, 160 N.W. 659; Steffens Ice Cream Co. v. Jarvis (Okla.), 270 Pac. 1103, 132 Okla. 300; Ontario Mining Co. v. Industrial Commission (Colo.), 280 Pac. 483; Speas v. Boone County (Neb.), 227 N.W. 87, 91; Travelers' Insurance Co. v. Ohler (Neb.), 227 N.W. 449; Bailey v. Hess (So. Dak.), 227 N.W. 69, 70-71; Kirchner v. Michigan Sugar Co., 206 Mich. 459, 173 N.W. 193, 195; Schaefer v. Buffalo Steel Car Co., 250 N.Y. 507, 166 N.E. 183; Gilliland Oil Co. v. State Ind. Comm. (Okla.), 273 Pac. 208, 135 Okla. 21; Matter of Eggleston v. Shinola Co., 229 N.Y. 622, 129 N.E. 933. Where the parties have entered into a stipulation with reference to compensation under the act, such action confers jurisdiction upon the commission and waives the requirement of the filing of formal claim. Curtis v. Slater Construction Company (1916), 194 Mich. 259, 160 N.W. 659; 14 Negligence and Compensation Cases Annotated 785. The act should be construed liberally with a view to public welfare and all of its clauses and sections shall be given effect so as to harmonize with the general purpose of the act. Drecksmith v. Universal Carloading & Distributing Co., 18 S.W. (2d) 86, and cases cited; Howe v. Stark Bros. Nurseries & Orchards Co., 22 S.W. (2d) 839. Proceedings before the commission are to be informal and without regard to the technical rules of evidence. Section 51, Workmen's Compensation Act, Laws 1927, p. 515. (2) The award of the commission is supported by sufficient competent evidence. The findings and award of the commission have the force and effect of verdict of a jury. Kinder v. Hannibal Car Wheel & Foundry Co., 18 S.W. (2d) 91; Jarnagin v. Wm. R. Warner & Co., Inc., 18 S.W. (2d) 129; Von Cloedt v. Yellow Taxicab Co., 18 S.W. (2d) 84, 86; Car v. Murch Bros. Constr. Co., 21 S.W. (2d) 897; State ex rel. Brewen-Clark Syrup Co. v. Mo. Workmen's Compensation Commission (Mo. Sup.), 8 S.W. (2d) 897; Hager v. Pulitzer Publishing Co., 17 S.W. (2d) 578; Brocco v. May Department Stores Co., 22 S.W. (2d) 832; Guillod v. Kansas City Power & Light Co., 18 S.W. (2d) 97. (3) The award of medical and hospital benefits was properly made under the statute. Section 13, Workmen's Compensation Act, Laws 1927, p. 498; Kinder v. Hannibal Car Wheel & Foundry Co., 18 S.W. (2d) 91; Von Cloedt v. Yellow Taxicab Co., 18 S.W. (2d) 84; Guillod v. Kansas City Power & Light Co., 18 S.W. (2d) 97; Lawrence v. Stark Bros. Nurseries & Orchards Co., 18 S.W. (2d) 89, 90.

SUTTON, C.

This is an action for compensation, brought before the Workmen's Compensation Commission, for injuries received by plaintiff while in the employ of defendant Mack International Motor Truck Corporation. Defendant Zurich Insurance Company was the insurance carrier at the time of plaintiff's injury. The commission awarded plaintiff $20 per week, for six weeks, for temporary total disability, and $228 for medical aid. From this award the defendants appealed to the circuit court. Upon the hearing in the circuit court the award of the commission was affirmed, and judgment was entered thereon accordingly. From the judgment of the circuit court defendants have duly appealed to this court.

Plaintiff sustained the injuries for which he sues, on June 25, 1927, while cranking a truck. It appears from the record of the commission that on July 29, 1927, the truck corporation filed with the commission a report of the accident and a final receipt in the nature of an agreement for compensation, signed by plaintiff, amounting to $17.14, reciting that the injury was a ruptured blood vessel under the right arm. This settlement agreement was never approved by the commission. On February 21, 1928, plaintiff filed with the commission a claim for compensation for hernia, alleged to have resulted from the same accident. To this claim defendants answered denying that plaintiff sustained the injury mentioned in the petition, and charging that the claim was barred by reason of the provisions of section 39 of the Compensation Act. Upon a hearing before Hon. ALROY S. PHILLIPS, one of the members of the commission, on April 18, 1928, plaintiff's claim was disallowed, on the ground that the evidence failed to show that the hernia resulted from the accident. Upon disallowing the claim the commissioner advised the plaintiff that his hernia could be cured by an operation, and that he should have an operation performed, but that he would have to pay for that himself. On April 24, 1928, plaintiff submitted to an operation. On May 25, 1928, he made application for a review by the full commission of the order of the commissioner disallowing his claim. On September 29, 1928, a hearing was had before the full commission, which resulted in the award of $228 for medical aid and the $20 per week for six weeks for temporary total disability, as before stated.

At the hearing before the full commission plaintiff testified that his work was that of driving, cranking, starting and testing heavy trucks for his employer, the Mack International Motor Truck Corporation; that on June 25, 1927, while attempting to crank a three and one-half ton truck the crank slipped and he was thrown down on his knee and shoulder; that he had suffered no pain in his groin prior to the accident, although he had been lifting heavy objects and cranking trucks for a period of five years prior to the accident; that at the time of the accident he felt pains across the small of his back; that they were sharp pains and seemed to jump; that shortly before July 31, 1927, he noticed a lump on his left side; that the lump was not as big as a marble, but more like a peppermint, and flat; that when he went to lift up on the crank he would feel a sharp prickly feeling down in his groin, and his knees would give in; that he had never had this sensation before the accident, and noticed it for the first time when he returned to work ten days after the accident; that when he noticed the lump on...