Schaefer v. Lowell-Krekeler Grocery Co.

• Citation: 49 S.W.2d 209
• Decision Date: 03 May 1932
• Docket Number: No. 22148.,22148.
• Parties: SCHAEFER v. LOWELL-KREKELER GROCERY CO. et al.
• Court: Missouri Court of Appeals

49 S.W.2d 209

SCHAEFER v. LOWELL-KREKELER GROCERY CO. et al.

No. 22148.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Albert Schaefer, for personal injuries, claimant, opposed by the Lowell-Krekeler Grocery Company, employer, and the Utilities Indemnity Exchange, insurer. From the judgment of the circuit court affirming the final award of the Workmen's Compensation Commission in favor of defendants, plaintiff appeals.

Affirmed.

Felthan Watson, Lester Watson, and Adolph Kirchner, all of St. Louis, for appellant.

John J. Nangle, George Gantner, and J. F. Sloan, all of St. Louis, for respondents.

BENNICK, C.

This is an appeal from the judgment of the circuit court of the city of St. Louis, affirming a final award of the Workmen's Compensation Commission.

The employee, Albert Schaefer, was concededly injured on November 28, 1930, by accident arising out of and in the course of his employment with the Lowell-Krekeler Grocery Company, when a delivery truck he was driving was caused to skid and fall off of a bridge or viaduct to the ground fifteen feet beneath. The Utilities Indemnity Exchange is the insurer.

On March 20, 1931, the employee filed with the commission his claim for compensation, alleging the accident in question, and designating his injuries as being to "left side of back just above left hip."

It appears that following the accident the employer and insurer had recognized their liability under the act, and had voluntarily paid the employee a total of $102.82 in compensation, based upon a rate of $16.66 a week for a period of 6 1/7 weeks.

On March 24, 1931, they filed their answer to his claim, denying that he was entitled to further compensation, his disability having terminated on January 11, 1931, as they regarded it; and also denying that he had received injuries of a permanent character so as to be entitled to compensation for permanent partial disability.

The claim was set down for a hearing on April 14, 1931; and on that date the parties appeared at the St. Louis office of the commission before Hon. Orin H. Shaw, one of the members thereof, when it developed during the taking of evidence that the employee's contention of a permanent disability was based upon a claim that epilepsy had resulted from the injuries sustained in the accident.

A second hearing was held before Commissioner Shaw on April 28, 1931; and on May 26, 1931, he caused a temporary or partial award to be entered, awarding the employee compensation for temporary total disability at the rate of $16.67 a week from November 28, 1930, the date of the accident, to and including June 30, 1931, with the right reserved to all parties in interest to ask for a modification of the award upon the basis of a change in the character of the disability by such latter date.

On May 29, 1931, the employer and insurer forwarded to the commission their application for a review of such award, but a review was denied them until after such time as the award ceased to be purely temporary in character.

The commission thereupon set the case down for a hearing on June 24, 1931, before Referee Friedewald, with a view to the rendition of a permanent award. Additional evidence was taken; and on June 29, 1931, an award was entered over the signature of Commissioner Shaw, awarding compensation to the employee for temporary total disability at the rate of $16.66 a week for 400 weeks, subject to credit for the sum of $102.82 previously paid to the employee, and to a lien of $100 in favor of the employee's attorneys.

On July 3, 1931, the employer and insurer made application to the full commission for a review of the award; and on July 13, 1931, the full commission entered its final award, reversing the award of the single commissioner, who, incidentally, appears to have concurred in the reversal. The full commission found that the employee had sustained a temporary total disability as a result of the accident, extending from November 28, 1930, the date of the accident, to and including January 10, 1931; that he had theretofore been paid in full for the disability resulting from the injury; and that any disability he had after January 10, 1931, was neither caused nor aggravated by the accident in question, but was from causes independent of his employment.

From such final award the employee appealed to the circuit court, wherein, at the September, 1931, term, the award was affirmed. From such judgment, and at the judgment term, the employee has duly perfected his appeal to this court.

The employee raises two of the statutory grounds for review (section 3342, R. S. 1929), namely, that the facts found by the commission do not support the award, and that there was not sufficient competent evidence in the record to warrant the making of the award. Of course, it is only the latter point with which we are really concerned, for the facts found by the full commission not only support the award which was rendered, but,...