Platies v. Theodorow Bakery Co., 23467.

• Decision Date: 05 March 1935
• Docket Number: No. 23467.,23467.
• Citation: 79 S.W.2d 504
• Parties: PLATIES v. THEODOROW BAKERY CO. et al.
• Court: Missouri Court of Appeals

79 S.W.2d 504

PLATIES v. THEODOROW BAKERY CO. et al.

No. 23467.

St. Louis Court of Appeals. Missouri.

March 5, 1935.

Appeal from St. Louis Circuit Court; James F. Green, Judge.

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Act by Nick Platies, claimant, opposed by the Theodorow Bakery Company, employer, and the Fidelity & Casualty Insurance Company of New York, insurer. Compensation was denied by the Workmen's Compensation Commission, but was allowed by the circuit court, and defendants appeal from the circuit court order overruling their motion to set aside the judgment allowing compensation.

Affirmed.

George A. Hodgman and Luke & Cunliff, all of St. Louis, for appellants.

Alroy S. Phillips, Charles S. Sigoloff, John A. Dowdall, and Sam Hatupin, all of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action brought before the Workmen's Compensation Commission to recover compensation under the Missouri Compensation Act (Mo. St. Ann. § 3299 et seq., p. 8229 et seq.). Plaintiff received the injury for which he seeks compensation while in the employ of defendant Theodorow Bakery Company, which company was insured by defendant Fidelity & Casualty Insurance Company of New York against liability for injuries to its employees.

The commission denied plaintiff compensation. From this award of the commission plaintiff appealed to the circuit court. That court, upon a hearing, on the record, had on March 2, 1931, found that there was not sufficient competent evidence in the record to warrant the making of the award, and further found, among other things, that plaintiff, as a result of the accident, had suffered temporary total disability from the time of the accident, and would in all reasonable probability "continue to suffer such disability for a period not now known," and that "there was due plaintiff, for temporary total disability, the sum of $20 per week for not more than 400 weeks, during the continuance of such disability, of which there has been paid the sum of $60 and no more." Thereupon the court gave judgment that the award of the commission be reversed, set aside, and for naught held, and that "plaintiff have and recover of defendants, for temporary total disability, the sum of $20 per week for not more than 397 weeks, during the continuance of such disability, payable every two weeks, commencing July 29, 1929, together with his costs, and that execution issue therefor."

From this judgment the defendants perfected a special appeal to the Supreme Court. Upon a hearing of that appeal, on December 22, 1933, the Supreme Court en banc dismissed the appeal for want of jurisdiction. The opinion dismissing the appeal is reported in 66 S.W.(2d) at page 147.

On January 8, 1934, two months less than three years after the rendition of the judgment in the circuit court, defendants filed in the circuit court their motion to set aside said judgment for irregularity, under the provisions of section 1101, R. S. 1929, Mo. St. Ann. § 1101, p. 1396. On June 22, 1934, said motion was heard and taken under advisement. On June 29, 1934, the court made an order overruling said motion. From this order defendants have appealed to this court.

Defendants contend that the judgment of the circuit court, which they seek to have set aside, is irregular and subject to attack by motion, because the judgment is for 397 weeks compensation for temporary total disability, and is based on a finding that such disability will continue for a period not known, which finding they say will not support the judgment. This contention has been fully answered by our Supreme Court en banc, in disposing of this case when it was before that court on appeal, as follows:

"Appellant claims that the amount in dispute is $7,940. He supports this claim by the contention that the judgment in question is a judgment for $20 per week for 397 weeks, which amounts to $7,940.

"We do not so construe the judgment. We interpret it as being a judgment for $20 per week during the continuance of the disability. The only figure the 397 weeks cut is to place a limit beyond which the weekly payments may not go. The judgment is not that the weekly payments shall continue for 397 weeks or for any specified number of weeks, but during the continuance of the disability, which of course is problematical. The judgment follows the statute....