Perry v. J. A. Kreis & Sons

• Decision Date: 03 May 1932
• Docket Number: No. 22051.,22051.
• Citation: 49 S.W.2d 220
• Court: Missouri Court of Appeals
• Parties: PERRY v. J. A. KREIS & SONS et al.

49 S.W.2d 220

PERRY v. J. A. KREIS & SONS et al.

No. 22051.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Rehearing Denied May 18, 1932.

Appeal from Circuit Court, Franklin County; R. A. Breuer, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Oscar Perry, employee, opposed by J. A. Kreis & Sons, employer, and Hartford Accident & Indemnity Company, insurer. From a judgment affirming an award of the Commission, employer and insurer appeal.

Affirmed.

Harold C. Ackert and Holland, Lashly & Donnell, all of St. Louis, for appellants.

Charles P. Comer, of St. Louis, for respondent.

BECKER, J.

This is an action for compensation, brought before the Workmen's Compensation Commission, for injuries received by plaintiff while in the employ of J. A. Kreis & Sons. The defendant Hartford Accident & Indemnity Company is the insurer.

On November 15, 1929, the employee, while engaged in railroad construction work as a laborer for defendant employer, at Gray Summit, Mo., was struck on the head by a rock which fell from the ceiling of a tunnel wherein he was working. He was taken to St. Francois Hospital at Washington, Mo., and placed under the care of the insurer's physician, Dr. Frank G. Mays of that city. He remained in the hospital under the doctor's care from November 15, 1929, until March 4, 1930, when, according to claimant's contention, by permission of Dr. Mays, he was allowed to leave, and on March 10th to go to his home at Clarksville, Ark., to attend the funeral of his father. Perry thereafter remained in Arkansas, and the insurer heard nothing from him until June 30, 1930, when it received a letter from an attorney of Clarksville, Ark., seeking further compensation for Perry.

It is admitted that compensation of $16.33 per week was paid to Perry by the insurer up to March 10, 1930, under a written agreement which was filed with the Workmen's Compensation Commission on January 15, 1930.

It further appears that on October 21, 1930, a claim for compensation on form 21 (issued by the Missouri Workmen's Compensation Commission) was filed by Perry. A hearing before a referee resulted in an award to the claimant of $16.33 per week for a period of sixty and five-sevenths weeks, less a credit for compensation previously paid. Upon review the full commission in effect sustained the finding of the referee so far as compensation is concerned and entered a final award accordingly. On appeal, the circuit court affirmed the award of the commission, and in due course the case reaches us on appeal.

It is here urged that the claim for compensation is barred by the statute of limitations; that any rights which the claimant may have had are barred because of his failure to file his claim for compensation within the time allowed by law.

It is no longer open to question but that the filing of a claim for compensation within the period of time prescribed by our Workmen's Compensation Act is jurisdictional and that it is the essence of the right of action, and a condition upon the liability, created by the act itself, a condition precedent to the right to maintain and prosecute a compensation proceeding. Higgins v. Boiler Co. (Mo. Sup.) 41 S.W.(2d) 565, and cases therein cited.

We are of the opinion that under the facts presented by the record before us the point sought to be made by appellants here is without merit. We are constrained to this view in light of the fact that we hold the agreement in writing signed by the employee and the insurer and filed with the Workmen's Compensation Commission was tantamount to and in effect a compliance with the requirements of section 39 of the Workmen's Compensation Act (Laws 1925, p. 396 [Rev. St. 1929, § 3337]) relative to the filing of a claim for compensation by the employee.

Adverting to the said agreement, we note that its very heading states that it is "Employe's Claim for Compensation and First Receipt and Temporary Agreement," and that it is specifically agreed therein between the parties that the "employe hereby makes claim for compensation * * * and * * * the insurer hereby agrees to furnish medical aid as provided in said Act, and to pay to the undersigned employe compensation at the rate of $16.33 per week, commencing November 19, 1929, until such time as the undersigned employer or insurer notifies the Commission in writing of suspension of payment thereof, such notice to be given not later than 21 days from date of the last payment of compensation." Furthermore, the agreement provides that any differences between such payments as are stipulated in the agreement and the compensation which may be ultimately awarded to the employee, "shall be refunded and taken care of when a final agreement or award is made." The agreement provides further that its provisions are subject to the Workmen's Compensation Act, and the amount specified therein "is payable and may be modified" as provided by the act.

It further appears that under the said agreement the insurer continued the payments of compensation until March 10, 1930, when the employee left for his home in Arkansas, after which date the insurer paid no further compensation, and on April 14, 1930, advised the Workmen's Compensation Commission that it did not know where Perry was at the time — though they believed he had gone to his home, somewhere in Arkansas — and that he had been calling at the office of the insurer for his compensation checks, but that they had not paid him any compensation since March 10, 1930. Though Fred J. Hartzke, who testified on behalf of the employer and insurer to the effect that he was employed by the insurer as an adjuster, and that it was he whom the employee asked, the first week in March, for permission to go to his home town in Arkansas to attend the funeral of his father, and that thereafter he heard nothing further from the employee until on June 30, 1930, when he received a letter from Charles A. Maze of the law firm of Reynolds & Maze, relative to the employee's claim, yet under date of July 3, 1930, the insurer wrote the Workmen's Compensation Commission, in answer to their inquiry of July 1, 1930, that they had not yet heard from Perry and that they did not know of his present whereabouts.

Holding as we do that the document headed "Employe's Claim for Compensation and First Receipt and Temporary Agreement," signed by the employee and the insurer and filed with the Workmen's Compensation Commission, under the facts in the instant case, was a sufficient compliance with the statutory requirement of section 39,...