Martensen v. Schutte Lbr. Co. et al.

• Citation: 162 S.W.2d 312
• Decision Date: 25 May 1942
• Docket Number: No. 20067.,20067.
• Parties: C.E. MARTENSEN, EMPLOYEE, APPELLANT, v. SCHUTTE LUMBER COMPANY, A CORPORATION, EMPLOYER, AND EMPLOYERS' MUTUAL LIABILITY INSURANCE COMPANY, A CORPORATION, INSURER, RESPONDENTS.
• Court: Court of Appeal of Missouri (US)

162 S.W.2d 312

C.E. MARTENSEN, EMPLOYEE, APPELLANT, v. SCHUTTE LUMBER COMPANY, A CORPORATION, EMPLOYER, AND EMPLOYERS' MUTUAL LIABILITY INSURANCE COMPANY, A CORPORATION, INSURER, RESPONDENTS.

No. 20067.

Kansas City Court of Appeals, Missouri.

May 25, 1942.

Appeal from Jackson Circuit Court. — Hon. Emory H. Wright, Judge.

AFFIRMED.

Leo A. Spalding and I. Frank Rope for appellant.

The court erred in ruling that the Workmen's Compensation Commission acted without and in excess of its powers in making its final award against the employer and insurer for the reasons that: (1) The original claim for compensation was filed within time provided by law. Sec. 3727, R.S. Mo. 1939; McLaughlin v. Industrial Accident Comm., 260 Pac. 829; Murphy v. Wells (Mo. App.), 155 S.W. (2d) 284. (2) The Statute was tolled by rendition of medical attention to the employee within the statutory period. Mussler v. American Car Foundry (Mo. App.), 149 S.W. (2d) 429; Moscicki v. American Foundry Mfg. Co. (Mo. App.), 103 S.W. (2d) 491; McEneny v. Kresge Co. (Mo.), 62 S.W. (2d) 1067; Helle v. Eyermann Cont. Co. (Mo. App.), 44 S.W. (2d) 234. (3) The findings of the Workmen's Compensation Commission was based on competent evidence and was conclusive on the circuit court. Mussler v. American Car Foundry (Mo. App.), 149 S.W. (2d) 429; Blahut v. Liberty Creamery Co. (Mo. App.), 145 S.W. (2d) 506; Jackson v. General Metals Ref. Co., 43 S.W. (2d) 865; Lay v. City of Salem (Mo. App.), 145 S.W. (2d) 978; Auchley v. Zerr (Mo. App.), 155 S.W. (2d) 275; Murphy v. Wells (Mo. App.), 155 S.W. (2d) 284.

Leo T. Schwartz for respondent.

T.A. Duckworth of counsel.

(1) The circuit court properly ruled that appellant's claim was barred by the Statute of Limitations. Sec. 3337, R.S. 1929 (Sec. 3727, R.S. 1939); Murphy v. Burlington Overall Co., 225 Mo. App. 866, 34 S.W. 1035; Higgins v. Heine Boiler Co., 328 Mo. 493, 41 S.W. (2d) 565; McEneny v. S.S. Kresge Co., 333 Mo. 817, 53 S.W. (2d) 1075, aff. 62 S.W. (2d) 1067; Conn et al. v. Chestnut Street Realty Co. et al. (Mo. App.), 133 S.W. (2d) 1056, 1059; Forest City Mfg. Co. v. International L.G.W. Union, etc., 223 Mo. App. 935, 111 S.W. (2d) 934, 949; 19 C.J.S. 969, sec. 1289; Sec. 5030, R.S. 1939 (Sec. 4555, R.S. 1929); Sec. 886, R.S. 1939 (Sec. 734, R.S. 1929); Caldwell v. Eubanks, 326 Mo. 185, 30 S.W. (2d) 976, 978; 19 C.J.S. 970, sec. 1290; Blodgett v. Schaffer, 94 Mo. 652, 7 S.W. 436, 442. (2) Respondents were brought in by amendment more than six months after the injury and by the Statute of Limitations continued to run in their favor until they were thus made parties. Sec. 3727, R.S. Mo. 1939 (Sec. 3337, R.S. 1929); Jaicks v. Sullivan et al., 128 Mo. 177, 30 S.W. 890; Haney v. Thomson et al., 339 Mo. 505, 98 S.W. (2d) 639, 641; Smith v. Barrett, 41 Mo. App. 460, 467; Bambeck v. Devorss, 19 Mo. App. 38; St. Joseph v. Baker, 86 Mo. App. 310, 316; Forrey v. Holmes, 65 Mo. App. 114, 116; Hiller v. Schulte; 184 Mo. App. 42, 167 S.W. 461, 462. (3) The circuit court judgment reversing the award correctly ruled that the Statute of Limitation had run and that the statute was not tolled by rendition of medical aid. State ex rel. Buttiger v. Haid et al., 330 Mo. 1030, 51 S.W. (2d) 1008, 1010; Buchanan v. Nicozisis et al. (Mo. App.), 78 S.W. (2d) 492, 494; Bondurant v. Raven Coal Company et al. (Mo. App.), 25 S.W. (2d) 566, 572; 71 C.J., 1179, secs. 1064, 1066; Kingan & Co. v. Ossam, 75 Ind. App. 548, 121 N.E. 289; Musgrave's Case, 281 Mass. 416, 183 N.E. 739; Nistad v. Winton Lumber Co. (Idaho), 85 Pac. (2d) 236; Overton v. Belcher, 232 Ala. 396, 168 So. 442; McInerney v. Buffalo & S.R. Corp., 225 N.Y. 130, 121 N.E. 806. (4) The judgment of the circuit court was for the right party and should be affirmed. State ex rel. Anderson Motor Service Co. et al. v. Public Service Commission et al., 234 Mo. App. 470, 134 S.W. (2d) 1069, 1079; Carroll v. Shooting the Chutes, 85 Mo. App. 563; Brown v. Alton R. Co. et al. (Mo. App.), 132 S.W. (2d) 713, 723; Punton v. U.S. Life Ins. Co., 213 Mo. App. 49, 245 S.W. 1080.

BOYER, C.

This is an appeal from a judgment of the circuit court reversing a final award of the Workmen's Compensation Commission in favor of appellant and against respondents. The court found that the Commission acted without or in excess of its powers in making the final award against the Schutte Lumber Company and its insurer; that appellant did not file his claim against respondents within the time provided by law; that there was no evidence to support the Commission's finding that the amended claim was not barred by the Statute of Limitations; that the amendment was improper; that it was not an amendment but a new claim not filed in time, and the Commission lacked jurisdiction.

The assignments of error and the points briefed on appeal are that the court erred because: 1. The original claim for compensation was filed within time provided by law. 2. The statute was tolled by rendition of medical attention to the employee within the statutory period. 3. The finding of the Workmen's Compensation Commission was based on competent evidence and was conclusive on the circuit court.

The record discloses that appellant filed a claim before the Workmen's Compensation Commission November 25, 1938, against Victor Schutte as employer. The name of the insurer was said to be "unknown." June 13, 1938, is shown as the date of an accident at 1318 East 27th Street in Kansas City, Missouri. The manner and extent of the injury are described. The claim was set for hearing January 3, 1939, before a member of the Commission at Kansas City, at which time the Commissioner, upon request of counsel for appellant, permitted the filing of an amended claim which shows the employers to be Victor Schutte and Schutte Lumber Company, a corporation, and Employers' Mutual Liability Insurance Company as insurer. Counsel for the Schutte Lumber Company and the insurance company made repeated objections to the filing or hearing of any claim against the lumber company and its insurer because any such claim was barred by the Statute of Limitations. If the claim was to be heard a continuance was requested. The Commissioner in charge permitted the filing of the amended claim and proceeded to take evidence upon said claim as amended with the understanding that the lumber company an its insurer might present evidence, if desired, at an adjourned hearing. Victor Schutte was represented by personal counsel. The lumber company and its insurer were represented by their counsel. The insurance company had received a notice to the effect that a claim was filed against Victor Schutte and that its name appeared as insurer for him. It is not explained how this occurred. An adjourned hearing was held January 31, 1939, and at the conclusion of all of the evidence the Commissioner found in favor of the employers and insurer and against the employee and awarded no compensation, and found that the amended claim was not filed within six months from the date of the accident. Upon review of this award by the full Commission it was reversed by two members of the Commission, the third member dissenting. Claimant was granted a temporary or partial award against the Schutte Lumber Company and its insurer, and it was provided that the claim should be reset for further hearing. The lumber company and the insurer were directed to pay for medical and hospital services "not furnished by employer and insurer." The findings of fact and rulings of law contain statements to the effect that Martensen was an employee of Schutte Lumber Company, a major employer, on June 12, 1938; that on said date he sustained an accidental injury arising out of and in the course of his employment; that employee's original claim was filed in time in accordance with Section 3337, Revised Statutes 1929, and that the amended claim, including both Victor Schutte and Schutte Lumber Company, a corporation, filed January 3, 1939, was not barred by the Statute of Limitations. The company did not comply with the temporary award. There was a hearing on final award held September 6, 1939. A final award and a corrected final award in favor of claimant and against Schutte Lumber Company and its insurer were entered, in which corrected award the alleged employee was granted $13.08 per week for 86 weeks for temporary total disability, and in addition thereto the lumber company and its insurer were ordered to pay medical and hospital bills in the following language:

"Employer and insurer are liable for and are hereby ordered to pay direct to Dr. Ralph Myers the sum of $331, same being the reasonable value of necessary medical services rendered by him to employee and not furnished by said employer and insurer. Employer and insurer are also ordered to pay direct to Research Hospital the sum of $376.50 for necessary hospital treatment not furnished by them to employee."

The findings of fact accompanying the final award and the corrected award show the date of the accident as June 12 instead of June 13, 1938; that claimant was in the employment of the lumber company; that the accident arose out of and in the course of the employment; that the original claim for compensation against Victor Schutte was filed in time; that the amended claim was not barred by the Statute of Limitations, and that there was no liability on the part of Victor Schutte as an individual. In the findings, under the caption "Compensation Payable," is the following item: "21. Value necessary medical aid not furnished by employer or insurer $707.50."

Appellant testified that his occupation was that of maintenance man, doing general maintenance work; that in years past he had worked for the Schutte Lumber Company; that he had done maintenance work in the yard and outside, and took his orders from Mr. Victor Schutte; that he worked about two years and was re-employed about four years prior to the accident; that Mr. Schutte employed him and ...