McEneny v. S.S. Kresge Co.
| Decision Date | 24 August 1933 |
| Docket Number | No. 32720.,32720. |
| Court | Missouri Supreme Court |
| Parties | HAZEL McENENY, Appellant, v. S.S. KRESGE COMPANY and ZURICH INSURANCE COMPANY (ZURICH GENERAL ACCIDENT & LIABILITY INSURANCE COMPANY). |
Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Roskopf, Judge.
REVERSED AND REMANDED (with directions).
E.P. McCarthy for appellant.
(1) The commission proceeded and acted throughout the hearing and award on the erroneous theory that the claim was barred by the Section 39 unless it could be shown that it was filed within six months from the date of the last payment "on account of compensation." Section 39 of the Act of 1927, provides that it must be filed "within six months after the injury or death, or, in case payments have been made on account of the injury or death, within six months from the date of the last payment." (2) Employment by insurer of physicians, who made extensive medical and X-ray examination of claimant less than six months before the filing of the formal claim, and who were paid by insurer, constitutes a payment on account of the injury, which stops the running of the statute. Elsas v. Montgomery Elev. Co., 50 S.W. (2d) 130. (3) Employment by insurer of a physician in January or February, 1930 — less than six months before filing of the formal claim — and agreement by the insurer to pay him for treatments to be given to claimant and the furnishing of such treatments by the physician pursuant to that agreement, and the charging of the bill against the insurer by the physician, constitutes a payment on account of the injury within the meaning of the statute. Elsas v. Montgomery Elev. Co., 50 S.W. (2d) 130.
H.J. Fitzpatrick and Allen, Moser & Marsalek for respondents.
(1) The record shows, without dispute, that this proceeding was filed before the commission more than six months after the last payment by the employer and insurer on account of claimant's injury. The claim was, therefore, barred by the statute, and the commission was without jurisdiction to entertain it. Sec. 3337, R.S. 1929; Higgins v. Heine Boiler Co., 41 S.W. (2d) 565; Wheeler v. Railroad Co., 42 S.W. (2d) 597; Murphy v. Burlington Overall Co., 34 S.W. (2d) 1035. (2) Neither the testimony of appellant nor the statement of Dr. Hirst constitutes any evidence that the employer or insurer agreed to pay Dr. Hirst for his services in treating the claimant. However, even if such an agreement had been made, it would not be proof of a "payment on account of the injury," such as the statute requires to extend the limitation period. Sec. 3337, R.S. 1929. The general rule applying to limitations requires a written promise, or an actual payment, to toll the statute. An acknowledgment, to satisfy the statute, must be an unqualified and direct admission of a present subsisting debt. Secs. 883, 885, R.S. 1929; Blackburn v. Jackson, 26 Mo. 308; Wells v. Hargrave, 117 Mo. 563. (3) The use of the expression "payment on account of compensation," in the award, was not incorrect, but even if it were, the record shows that the commission placed the proper construction on the limitation section and reached a correct conclusion. Cobb v. Standard Accident Ins. Co., 31 S.W. (2d) 575.
The appellant, Hazel McEneny, an employee of a S.S. Kresge Company store in the city of St. Louis, was injured, while so employed, on March 16, 1929, by falling "down the steps" of a stairway leading from the basement to the first floor of the store building. Her claim for compensation under the Workmen's Compensation Act, for the injuries sustained, was not filed with the commission until May 28, 1930. The Zurich Insurance Company is insurer. On June 24, 1930, the claim was heard by a referee who made a finding and award against the claim Upon review by the commission the award of the referee was affirmed, whereupon the claimant appealed to the circuit court. From a judgment of the circuit court affirming the award claimant appealed. The appeal being within the jurisdiction of the St. Louis Court of Appeals that court in an opinion, in which all the judges of the court concurred, reversed the judgment and remanded the cause to the circuit court with directions (Mo. App.), 53 S.W. (2d) 1075, but deeming their decision in conflict with that of the Kansas City Court of Appeals in Murphy v. Burlington Overall Company, 225 Mo. App. 866, 34 S.W. (2d) 1035, certified and transferred the case here under the provisions of Section 6, Amendment of 1884 to Article 6 of our Constitution. It thus becomes our duty as required by said section of the Constitution to "determine said cause ... as in case of jurisdiction obtained by ordinary appellate process."
The employer was a major employer. The testimony is not, at times, clear as to dates and the chronological course of events but we think it sufficiently shows that at the time of the accident on March 16, 1929, the employer summoned a Dr. Sims to attend the injured employee. Dr. Sims treated her at her home for about a week. She then called a Dr. Hirst who, she states, treated her, at that time, for about a week. For approximately the next four weeks she was attended by a Dr. Diehr during which time she was "in bed all the time." It does not clearly appear at whose instance Dr. Diehr was called but, as the writer understands, the charges for these treatments by Dr. Diehr, the last of which was of date May 3, 1929, were assumed and paid by the insurance company. However, that perhaps, has no direct hearing upon the facts which must ultimately determine the question here involved. It seems claimant then turned to another physician, of her own choosing, a Dr. O'Connor who treated her for "five or six weeks" and thereafter "occasionally." During all this time claimant was unable, on account of the injury sustained, to return to work. In August, 1929, she returned to the store and "worked one week," then was unable to work again until sometime in October, 1929, when she resumed part time work and continued "until after Christmas." The employer paid her wages in full for about four months from the date of the injury March 16, 1929, until "sometime in July" 1929, but after that she was paid only for the time she "actually worked." On January 4, 1930, though no claim for compensation had been filed with the commission, a conference was held at the office of the Workmen's Compensation Commission, in St. Louis, which was attended by the injured employee and her attorney, a Mr. Fitzpatrick, representing the insurance company and a Mr. Williams who it seems was a representative of the commission. Compensation under the Workmen's Compensation Act was then and there discussed and a written statement, prepared by the employer, showing amounts theretofore paid by the employer was shown Mr. Williams who suggested that the parties endeavor to adjust the matter by agreement. Fitzpatrick, the representative of the insurance company, requested that claimant submit to an examination by Dr. Diehr and Dr. Deppe. The examination was made, at the expense of the insurance company, but no treatments of any kind were either made or prescribed, at that time, by either doctor, nor does it appear that either then or later any direct, definite or final agreement was had between the parties as to payment of further or other compensation by the employer or the insurance company. However, as we understand the record, it seems that Dr. Hirst sometime in January, 1930, resumed the treatment of claimant which treatment continued at intervals to the date of the hearing before the referee on June 24, 1930. At this hearing the attorney for claimant offered the testimony of Dr. Hirst for the purpose, as he stated, of showing "that the insurance company, sometime in January, 1930, undertook to pay this claimant's doctor bill." The testimony of Dr. Hirst concerning the matter apparently is referable to that time, i.e., "sometime in January, 1930." Dr. Hirst testified:
"Mr. Fitzpatrick came to my office after I started treating Mrs. McEneny, about two weeks, and he came up and wanted to find out about how many treatments it would take to enable her to go back to work and he said then the company would settle."
By the referee:
Attorney for claimant:
Referee:
"You will have to show that Fitzpatrick paid that."
Attorney for claimant addressing referee: "You don't say if they agreed to pay it that an actual payment is necessary."
Referee:
The claimant testified concerning the last course of treatment by Dr. Hirst as follows:
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