Price v. Kansas City Public Service Co.

• Decision Date: 04 May 1931
• Docket Number: No. 17123.,17123.
• Parties: PRICE v. KANSAS CITY PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

42 S.W.2d 51

PRICE v. KANSAS CITY PUBLIC SERVICE CO.

No. 17123.

Kansas City Court of Appeals. Missouri.

May 4, 1931.

Appeal from Circuit Court, Jackson County; Ben Terte, Judge.

"Not to be officially published."

Proceedings under the Workmen's Compensation Act by Thomas Price, employee, opposed by the Kansas City Public Service Company, employer. From a judgment of the circuit court affirming an award of the Workmen's Compensation Commission, the employer appeals.

Cause transferred to the Supreme Court.

Charles L. Carr, W. A. Kitchen, and E. E. Ball, all of Kansas City, for appellant.

Kaelin, Smith & Thomas, of Kansas City, for respondent.

ARNOLD, J.

This appeal is from a judgment of the circuit court of Jackson county, Mo., affirming an award of the Missouri Workmen's Compensation Commission in favor of respondent, in the sum of $599.50.

The facts shown are that on February 15, 1929, respondent, with his team, was employed by appellant to do hauling at a rock crusher, operated by appellant near Eighty-Seventh street and Lydia avenue in Kansas City, Mo. In carrying on said work, a concrete mixer, owned by appellant, was being used. Respondent was directed by appellant's foreman, one Patrick, to hitch his team onto the mixer and move same to a different location. As directed, respondent hitched onto the mixer, and, as stated by him, he climbed onto the mixer because there was not room for him to walk beside it and drive his team. In this statement he was corroborated by two witnesses. Before starting, he climbed down to adjust the harness on his team, and, in so doing, he took hold of the chute handle used to release the concrete from the mixer. The chute handle tripped, and he fell, striking himself in the left groin, causing a hernia or rupture. The record shows the accident occurred about 1 o'clock p. m. February 15, 1927; that respondent worked the rest of the day, and, though suffering pain, was on the job continuously whenever there was work to do, until August 6, 1927, when he was discharged because of lack of work. Respondent was not regularly employed by defendant, but was called whenever there was work for him to do.

At first respondent did not think the injury serious, but pain developed in the injured groin, and on the following night after the injury he called his family doctor, Foster, who examined him and told him he had been ruptured slightly and sooner or later would require an operation. Immediately after the accident respondent talked with Patrick, the foreman, and the timekeeper urged him to go to appellant's doctor, but respondent says he told them he had a family doctor. This, however, is denied. The day following the accident a report was made on the commission's form No. 1 to the receivers of appellant company which, in part, is as follows:

"State below how accident occurred.

"Stepped down from concrete mixer and put his hand on lever and the lever tripped and he fell on the lever, bruised his side. Mr. Price worked on for the day and is on duty today and feels no bad results from the fall.

"Note: Did not lose any time. No compensation necessary.

                           "A. E. H
                           "George Patrick, Foreman
                           "F. T. Olmstead, Timekeeper
                

"Dated Feb. 16, 1927."

The record discloses no conflict in the evidence as to when, where, and how the accident occurred, but there is a dispute as to just where plaintiff's side was injured. Respondent testified his left groin was injured. One of defendant's witnesses stated plaintiff was injured in the right side over the ribs. The testimony shows plaintiff worked part time thereafter with his team, and the hernia, slight at first, became fully developed about July 1, 1927, and that it was reducible by operation; that respondent continued to work with the assistance of a brace or truss, at times hiring a man to take his place when he could not work.

On about August 6, 1927, respondent called at the office of appellant, made a statement to its claim department, and was examined by its doctor. Between that date and October 24, 1927, neither party filed any report with the Compensation Commission, but during that time, as shown by respondent's evidence, the parties were negotiating a settlement. Respondent testified he got tired running to appellant's office, and, after he saw they were not going to do anything, he consulted a lawyer. Appellant did not report the accident to the commission, as promised at the time respondent interviewed them on August 6th, as above stated, as required by section 34 of the Compensation Act (Rev. St. 1929, § 3332), and did not make its report until October 24, 1927. The formal claim for compensation was filed with the commission on December 13, 1927, after attempts to agree upon a basis of settlement had failed, as contemplated under the provision of section 35 of the act (Rev. St. 1929, § 3333).

The commission set a date for hearing, and evidence was heard by Commissioner Phillips, and the award was for respondent. A rehearing was granted, and the matter was heard before the full board, where additional evidence was presented, and the award again was in favor of respondent. The cause was appealed to the circuit court, where the award of the commission was affirmed. Motions for a new trial and in arrest were overruled, and this appeal was perfected.

There are nineteen assignments of error, developed under eight points and authorities. It is urged there was error in the holding of the commission and the court that the accident and the alleged injury arose out of and in the course of plaintiff's employment. This objection cannot be sustained. The testimony shows respondent was employed as a teamster and at the time of the injury was performing a duty to which he was assigned by the foreman, Patrick. True, there is no showing that Patrick directed respondent to climb upon the mixer, but respondent explains this by saying there was not room beside the mixer for him to walk and drive his team. The commission was therefore warranted in ruling the injury arose out of and in the course of respondent's employment. Metting v. Construction Co. (Mo. App.) 32 S.W.(2d) 121.

It is the generally accepted rule that an injury may be said to arise "out of" the employment when it is reasonably apparent, considering all the facts and circumstances in evidence, that a causal connection exists between the conditions under which the employee's work is required to be done and the resultant injury. In other words, an injury arises out of the employment if it is a natural and reasonable incident thereof, even not foreseen nor anticipated, but it must be a rational consequence of some hazard connected therewith. Smith v. Mere. Co., 223 Mo. App. 743, 14 S.W.(2d) 470; Howes v. Stark Bros., 223 Mo. App. 793, 22 S.W.(2d) 839; McNicol's Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916A, 306. We rule this point against appellant.

The next point urged is that respondent failed to serve appellant with written notice, as required by the statute, and therefore the commission was without jurisdiction to entertain this proceeding; and, since the commission was without jurisdiction, the circuit court acquired no jurisdiction on appeal, and appellant's motion to dismiss, filed in the circuit court, should have been sustained. Section 3336, Rev. St. 1929, of the Workmen's Compensation Act, is as follows: "No proceedings for compensation under this chapter shall be maintained unless written notice of the time, place and nature of the injury, and the name and address of the person injured, shall have been given to the employer as soon as practicable after the happening thereof but not later than thirty days after the accident, unless the commission shall find that there was good cause for failure to give such notice, or that the employer was not prejudiced by failure to receive such notice. No defect or inaccuracy in such notice shall invalidate the same unless the commission shall find that the employer was in fact misled and prejudiced thereby." Laws 1925, p. 375, § 38.

There is no contention on the part of respondent that written notice was given as required by this section; but it is asserted appellant had actual notice of the injury as the testimony shows the matter was discussed at the time and the foreman, Patrick, made a written report to his superiors. Upon this situation the commission based its ruling that appellant was not prejudiced by such failure to give written notice of the injury. The rule is now well established that the findings and award of the commission, when supported by substantial evidence and reasonable inferences to be derived therefrom, are binding on us. Section 44 of the act (Rev. St. 1929, § 3342); Ritchie v. Coal Co. (Mo. App.) 33 S.W.(2d) 154; Johnson v. Reed et al. (Mo. App.) 32 S.W.(2d) 107. Further citations on this point are unnecessary. Respondent sustained the burden of proof in this respect, and the point is accordingly ruled against appellant.

The next point urged is that under section 39 of the act (section 3337, Rev. St. 1929) respondent cannot recover because no claim for compensation was filed with the commission within six months after the alleged injury. That section provides: "No proceedings for compensation under this chapter 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 all other respects such limitations shall be governed by the law of civil actions other than for the recovery of real property, but the appointment of a guardian shall be deemed the termination of legal disability from minority or insanity."

The requirements of this section are mandatory. Wheeler v. Railroad (Mo. App.) 33 S.W.(2d) 179; Schrabauer v. Schneider Co. (Mo. App.) 25 S.W.(2d) 529. Respondent counters by...