Murphy v. Overall Co.
| Citation | 34 S.W.2d 1035 |
| Decision Date | 26 January 1931 |
| Docket Number | No. 17082.,17082. |
| Parties | BEATRICE A. MURPHY, RESPONDENT, v. BURLINGTON OVERALL COMPANY, EMPLOYER, MARYLAND CASUALTY COMPANY, APPELLANT. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court of Jackson County. — Hon. Darius A. Brown, Judge.
REVERSED.
R.A. Kope for respondent.
James D. Reeves for appellant.
This is an action under the Workmen's Compensation Act. Claimant was injured on December 2, 1927, by an accident arising out of and in the course of her employment with the defendant, Burlington Overall Company. A claim for compensation was filed with the commission on December 4, 1928. On December 15 of that year the employer, through its insurer, Maryland Casualty Company, filed its answer to the claim setting up as its defense that the action was barred by the Statute of Limitations. The claim was heard by the commission and a final award was made in favor of claimant "for medical aid by Dr. Barney" in the sum of $100 and permanent partial disability in the sum of $20 per week for 34.8 weeks or a total award of $696. From this award the employer and the insurer appealed to the circuit court of Jackson county, where the award of the commission was affirmed. The employer and the insurer again have appealed.
The facts show that claimant was employed by the Burlington Overall Company in Kansas City, Missouri, as a forelady; that she was injured by falling over a kit of tools left in the aisle by a repairman and thereby sustained injuries to her right arm and shoulder. The employer, through its foreman, received immediate notice of the accident and on December 12, 1927, reported the same and the injuries received by claimant to the Compensation Commission. Claimant returned to work for her employer on December 6, 1927, and continued to perform her work as forelady, at the same wage that she had been receiving, until September 15, 1928. Her employer required of her that she take over the operation of a sewing machine and on account of her injuries she was unable to do so and quit her employment on the last mentioned date. On the day of the accident claimant went voluntarily for medical treatment to Dr. L.F. Barney, whom she had known for a number of years.
The commission found in its "statement of facts" that claimant remained under the care of Dr. Barney until March, 1928; that she was requested by the insurer to go to Dr. Kuhn for an examination and, later, about April 1, 1928, she was requested to go to Dr. Rickter and was under the care of the latter for about six weeks; that after that "she was under Dr. Barney's care for sometime." The commission further found that "Dr. Kuhn and Dr. Rickter were paid on June 1, 1928, by the insurer for the services they rendered to the employee." ... "On October 13, 1928, the employee came to `the office of the commission in Kansas City and had a conference with a member of the commission' with reference to her compensation and on November 13, 1928, the commission received a letter from R.A. Kope, attorney for enployee regarding employee's compensation.
The evidence also shows that claimant called at the office of the commission on October 26, 1928. On her visit on October 13, claimant and her husband were in the Kansas City office of the commission and asked one of the commissioners to "investigate this case and let them know." What transpired when she was in the office of the commission on October 26, is not shown in the evidence. The record does recite that "on December 4, 1928, the commissioner received her claim for compensation." There is no evidence of the writing of any letter by R.A. Kope, attorney for the employee, regarding her compensation, as recited in the statement of facts made by the commission. The statement of facts, itself, does not disclose the contents of this letter or whether it was sufficient to constitute the filing of a claim within the meaning of section 39 of the Compensation Act (see Laws 1927, p. 511).
In its "Rulings of Law" the commission stated:
Appellants insist that the claim for compensation was not filed within six months after the date of the injury as required by section 39 of the act, which provides, in part, as follows:
"No proceeding for compensation under this act shall be maintained unless a claim therefor be filed with the commission 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."
In this connection appellants say that "medical aid," as provided by section 13, is not compensation, therefore, that part of section 39 which provides that a claim may be filed within six months "from the date of the last payment" has no application to the facts in this case; that even if medical aid were compensation, within the meaning of the act, the claim was not filed within six months after the payment of the bill of Drs. Kuhn and Rickter, as those payments were made on June 1, 1928, and the claim was not filed until December 4 of that year.
The undisputed evidence shows that the claim was not filed until December 4 and that the last payment to the doctors was made on June 1, so the commission could not have decided this case upon the theory that the payments to the doctors were made within six months of the time of the filing of the claim on December 4. It seems that the commission based its conclusions that the claim was filed within the six months limitation period, as provided by section 39 of the act, upon the fact that although Drs. Kuhn and Rickter were paid on June 1 that they were paid within six months prior to the filing of the claim, as the latter was, in legal effect, filed on October 13, 1928, when the claimant was in the office of the commission informing it of the "condition of her arm resulting from the accident" and giving "all information required by statute and clearly indicated that she wanted compensation."
Section 41 of the act provides that the commission shall make a statement of findings of fact and rulings of law. There was no substantial compliance with the statute on the part of the commission in this respect. There is no findings of fact to support the conclusion of law announced by the commission to the effect that claimant, when in the office of the commission on October 13, 1928, gave the commission "all information required by the statute and clearly indicated that she wanted compensation," nor, in fact, is there any evidence in the record tending to show what transpired in the office of the commission at the time in question, except that one of the commissioners was requested to investigate the case and let claimant and her husband know.
It is well settled that conclusions of law announced by the commission must be supported by findings of fact. [Inland Steel Co. v. Lambert, 118 N.E. 162, 163.] It has been held that where there has been no findings of fact, if the facts are undisputed, the court will treat the undisputed testimony as a findings of fact. [Prouse v. Industrial Com. of Colo., 69 Colo. 382.] But, as before stated, there is no fact in the record tending to show what transpired in the office of the commission on October 13, 1928, when claimant was there, except that the commissioner to whom she and her husband talked, was asked to investigate the case and "let them know." However, even if claimant had proceeded as stated in the "Rulings of Law" of the commission and gave it all information required by statute and indicated that she wanted compensation, unless she made, at the...
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......Ry. Co. (D.C.). 45 F.2d 792, it was held that "filing" is actual. delivery to the clerk without any regard to any action he may. take. In Murphy v. Burlington Overall Co., 225. Mo.App. 866, 34 S.W.2d 1035, it is said that "to. file" means to lay away papers for presentation or. reference ......
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