Renfro v. Pittsburgh Plate Glass Co.

• Decision Date: 28 June 1939
• Citation: 130 S.W.2d 165,235 Mo.App. 226
• Parties: CLINTON RENFRO, EMPLOYEE, RESPONDENT, v. PITTSBURGH PLATE GLASS COMPANY, EMPLOYER, SELF-INSURER, APPELLANT
• Court: Missouri Court of Appeals

130 S.W.2d 165

235 Mo.App. 226

CLINTON RENFRO, EMPLOYEE, RESPONDENT, v. PITTSBURGH PLATE GLASS COMPANY, EMPLOYER, SELF-INSURER, APPELLANT

Court of Appeals of Missouri, St. Louis

June 28, 1939

Appeal from the Circuit Court of Washington County.--Hon. Wm. R Edgar, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Everett Paul Griffin for appellant.

(1) The award of the commission is not supported by competent evidence. The facts found by the commission do not support the award. There was not sufficient competent evidence in the record to warrant the making of the award. The findings of the compensation commission are contradictory. Sec. 3320 (A) (L); Odanah Iron Co. v. Industrial Comm. (Wis. 1937), 275 N.W. 634; Antonio De Flippo's case, 284 Mass 531, 188 N.E. 245 (Dec. 6, 1935); Federico's case, 283 Mass. 430; Johnson's case, 217 Mass. 388, 391; O'Donnell's case, 237 Mass. 164; Bergeron's case, 243 Mass. 366; Fabrizio's case, 274 Mass. 352; Langford's case, 278 Mass. 461; Johnson's case, 279 Mass. 461, 483; Irene Marsh et al. v. Industrial Accident Comm., 18 P.2d ___, 217 Cal. 338, 86 A. L. R. 563; Beaver v. Morrison Knudson (Idaho), 41 P.2d 605, 97 A. L. R. 1399; Rialto Lead Co., etc. v. State Industrial Comm., 112 Okla. 101, 240 P. 96, 44 A. L. R. 494; Hustus' case, 123 A. L. R. 514, 123 Me. 428; In re Milton's case, 120 A. 533, 120 Me. 437; In re Durney, 111 N.E. 166, 222 Mass. 461, 462; Kimlark Rug Corp. v. Stansfield (Wis.), 246 N.W. 424; North End Foundry Co. v. Industrial Comm., 258 N.W. 439; Michigan Quartz Silica Co. v. Industrial Comm. (Wis.), 252 N.W. 167; Montell Granite Co. v. Industrial Comm., 278 N.W. 391; Evans v. Chevrolet Motor Co., 105 S.W.2d 1081; Kostron v. American Packing Co., 45 S.W.2d 871; Bridges v. Fruin-Colnon Const. Co., 52 S.W.2d 582; Wheeler v. Missouri P. Railroad Co., 33 S.W.2d 179, 42 S.W.2d 579; Acme Body Works v. Koepsel, 234 N.W. 756, 204 Wis. 493, 236 N.W. 378; Textileather Corp. v. Great American Ind. Co., 108 N.J. Law 121, 156 A. 840. (2) The rate of compensation to which plaintiff is entitled is the rate determined as of an injury occurring not earlier than January 4, 1937, and, as we contend, on January 30, 1937, and as of either date, the rate is $ 14.94 a week and not $ 20 a week, as found by the commission, for an injury as of December 7, 1935. Sec. 3320(a) (i). (3) Compliance with requirements of the Statute of Limitations is jurisdictional and if the employee fails to file his claim within time the right to exercise his claim is extinguished. Secs. 3337, 3305(b), R. S. Mo. 1929; Higgins v. Heine Safety Boiler Co., 41 S.W.2d 565; Wheeler v. Missouri P. Railroad, 42 S.W.2d 579; Schrabauer v. Schneider Engraving Co., 25 S.W.2d 529; Helle v. Eyermann Const. Co., 44 S.W.2d 234; Bridges v. Fruin-Colnon Const. Co., 52 S.W.2d 582. (4) The Statute of Limitations commences to run from the date it is reasonably discoverable and apparent a compensable injury has been sustained and the Statute of Limitations begins to run from the time when the right to compensation accrues. Higgins v. Heine Safety Boiler Co., 41 S.W.2d 565; Secs. 3305(b), 3311, 3337, R. S. Mo. 1929; Wheeler v. Missouri P. Railroad, 42 S.W.2d 579; Schrabauer v. Schneider Engraving Co., 25 S.W.2d 592; Helle v. Eyermann Const. Co., 44 S.W.2d 234; Bridges v. Fruin-Colnon Const. Co., 52 S.W.2d 582.

Everett Hullverson and T. J. Crowder for respondent.

(1) The Legislative Act, 1931, amending section 3305, Revised Statutes 1929, confers upon the commission the added jurisdiction to award compensation for disability resulting from occupational diseases incident to the employment, and the right to such compensation arises upon the mere showing of the presence of the disease and its relation to the employment. Evans v. Chevrolet Motor Co., 105 S.W.2d 1081. (2) The fact that respondent worked from August, 1933, to January 3, 1937, is not conclusive that he was well and able to work, and was not disabled on account of the disease he had. Farmer v. Metropolitan Life Ins. Co., 85 S.W.2d 235, 92 S.W.2d 126; White v. Metropolitan, 107 S.W.2d 957; Moss v. Metropolitan, 84 S.W.2d 395. (3) Compensation must be computed on the basis of earnings in the same employment during the year next preceding the injury, or date of disability, partial or total, resulting from occupational disease. Sec. 3320(a), R. S. 1929; Evans v. Chevrolet Motor Co., 105 S.W.2d 1081; Yarbraugh v. Great American Ind. Co. (La. App.), 159 So. 438; Anderson v. Roberts Karp. Hotel Co., 171 Minn. 402, 214 N.W. 265; Strucker and Irwin Fuel Co. v. Indust. Comm., 269 N.W. 319; Petroleum Cas. Co. v. Dean, 92 S.W.2d 1140; Briscoe Const. Co. v. Miller, 85 P.2d 420.

McCULLEN, J. Hostetter, P. J., and Becker, J., concur.

OPINION

McCULLEN, J.

This is an appeal by the employer, self-insurer, from a judgment of the Circuit Court of Washington County, Missouri, affirming a final award of the Missouri Workmen's Compensation Commission in favor of the employee, respondent.

The claim for compensation was filed by the employee on September 1, 1937, and alleged that he suffered an injury to "both lungs--silicosis--occupational disease" while working for the employer. It alleged that the employee's disability began on January 4, 1937, and stated "both lungs affected--unable to perform any work, and condition permanent." The average weekly wages of the employee were stated as $ 32.42.

On September 3, 1937, the employer filed an answer to the claim, in which it denied that the average weekly wages of the employee were $ 32.42; denied that any disability began on January 4, 1937, and alleged that disability began on January 30, 1937; alleged that it was impossible at that time to determine whether or not the employee was permanently disabled, and therefore denied disability. The defense of the Statute of Limitations was raised by the employer first at the hearing before a member of the commission, and later before the full Workmen's Compensation Commission as to any injury occurring more than six months prior to January 4, 1937, or January 30, 1937.

The original hearing was held before a member of the Workmen's Compensation Commission, who, on February 17, 1938, made his award and findings of fact. The award was for permanent total disability, allowing the sum of $ 20 per week for three hundred weeks, and thereafter the sum of $ 7.60 per week for life, said payments to begin as of January 4, 1937, subject to a credit of $ 644.63 previously paid the employee up to December 12, 1937. The commissioner also, on said date, filed an "Additional Findings of Fact and Rulings of Law" as follows:

"The chief point in dispute is as to the wage upon which compensation shall be based. Employee is suffering from silicosis, and as he continued to work until January 4, 1937, it is employer's contention that compensation shall be based upon his wages for the year preceding January 30, 1937, the date they contend disability began as a result of the silicosis.

"It is my opinion from the evidence that employee had sustained the injury or disease, which ultimately resulted in his disability, in December, 1935, when he was transferred from the pot house. This being true, I further find that his wages must be determined as per his earnings during 1935, rather than his earnings subsequent to that time. Section 3320 (a), which is the applicable part of the law, sets 'the year next preceding the injury' as the determining factor. Even though employee had no actual knowledge of the exact nature of the disease until his disability began, the injury or disease was contracted on or before December, 1935.

"Employee's earnings for 1935 were $ 1,581.91, and his average weekly wage is $ 30.41.

"I further find that compensation shall begin as of January 4, 1937, the date disability began as a result of the occupational disease."

In due time the employer filed an application for review and permission to argue the case orally before the full commission, which were granted. After a hearing by the full commission, that tribunal modified the award of the commissioner by holding that it was subject to an attorney's fee of $ 500 in favor of Everett Hullverson, attorney for employee, same to be a lien on the compensation payable, and as so modified the award was affirmed.

The employer duly appealed the case to the circuit court where the award of the commission was affirmed, after which the employer brought the case to this court by appeal.

It is admitted that the employee is now suffering from the disease known as silicosis, and has been suffering from that disease since January 3, 1937; that he is totally and permanently disabled; that said disease was contracted by the employee while he was working for the employer, and that it arose out of and in the course of his employment.

The employer contends that the award of the commission is not supported by competent evidence; that the facts found by the commission do not support the award; and that the findings of the commission are contradictory.

The employer asserts that, if the employee sustained a compensable injury on December 7, 1935, as found by the commission his claim filed September 1, 1937, is barred by the Statute of Limitations, and therefore the commission had no jurisdiction to hear and determine the case. That point is not pressed, however, because the employer states that the real question to be determined is: When did the employee in this occupational disease case sustain a compensable injury? The employer, although admitting that the employee is totally and permanently disabled as the result of silicosis contracted while working in its employ, contends that the award should begin with January 30, 1937 the date the...