Schrabauer v. Schneider Engraving Product

• Decision Date: 11 March 1930
• Citation: 25 S.W.2d 529,224 Mo.App. 304
• Parties: ANTON SCHRABAUER, (CLAIMANT), RESPONDENT, v. SCHNEIDER ENGRAVING PRODUCT, INC., (EMPLOYER), APPELLANT, AND UNITED STATES FIDELITY & GUARANTY COMPANY (INSURER), DEFENDANT. [*]
• Court: Missouri Court of Appeals

25 S.W.2d 529

224 Mo.App. 304

ANTON SCHRABAUER, (CLAIMANT), RESPONDENT, v. SCHNEIDER ENGRAVING PRODUCT, INC., (EMPLOYER), APPELLANT, AND UNITED STATES FIDELITY & GUARANTY COMPANY (INSURER), DEFENDANT. ^[*]

Court of Appeals of Missouri, St. Louis

March 11, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon. M. N Sale, Judge.

AFFIRMED.

Judgment affirmed.

Carter Jones & Turney and George A. McNulty for appellant.

(1) The failure of the employer to report the accident to the Commission, as required by section 34, does not estop him to plead that section 39 was not complied with. Rogulj v Mining Co. (C.C.A. 9th Cir.), 288 F. 549; Degaglio v. Bradley Cont. Co., 171 N.Y.S. 679, 184 A.D. 243; O'Esau v. E. W. Bliss Co., 177 N.Y.S. 203, 188 A.D. 385; Miller v. Roofing Co., 215 N.Y.S. 547, 216 A.D. 612; Haiselden v. Ind. Board, 113 N.E. 877, 275 Ill. 114; Bushnell v. Ind. Board, 114 N.E. 496; Inland Rubber Co. v. Ind. Comm., 140 N.E. 26, 309 Ill. 43; Vange Const. Co. v. Marcoccia, 140 A. 712, 154 Md. 401; Simmons v. Holcomb, 120 A. 510; Menna v. Mathewson, 137 A. (R.I.) 907; U.S. Casualty Co. v. Smith, 133 S.E. 851, 162 Ga. 130; Lipmanowich et al. v. Crookston Lumber Co., 210 N.W. 47; Texas Employers' Ins. Assn. v. Schoeppel, 10 S.W. 405; City of Rochelle v. Ind. Comm., 163 N.E. 189, 332 Ill. 386; Wilburn v. Auto Exch., 247 S.W. 1109, 198 Ky. 29; Dochoff v. Globe Const. Co., 180 N.W. 414, 212 Mich. 166; Gorbouska's Case, 130 A. 180, 124 Me. 404; Chmielewska v. Mining Co., 261 P. 616; In re Levangie, 117 N.E. 200, 228 Mass. 213; Barry's Case, 130 N.E. 259, 240 Mass. 109; Osagera v. Schaff, 240 S.W. (Mo. Sup.) 124; Hunt v. Ind. Acc. Comm., 185 P. 215, 43 Cal.App. 373; Texas Ind. Ins. Co. v. Baley, 297 S.W. 1042; Ind. Comm. v. W. A. Hover & Co., 259 P. 509; McClanahen v. Oklahoma Ry. Co., 267 P. 657; Rogers v. Ry., 225 P. 108, 115 Kans. 815. (2) The employee's claim for compensation was not filed within the period provided for in section 39. Johansen v. Union Stock Yards, 156 N.W. 510; Re McCaskey, 117 N.E. 268; Esposito v. Marlin-Rockwell Corp., 114 A. 92; Fee v. Dept. of Labor and Ind., 275 P. 71; Guderria v. Sterling Sugar & Ry. Co., 91 So. 546; Hustus' Case, 123 A. 515; Brown's Case, 228 Mass. 31, 116 N.E. 897; Hymes v. Pullman Co., 119 N.E. 706, 223 N.Y. 342, Ann. Cas. 1918C, 1040; McLaughlin v. Western Union Tel. Co. (C.C.A. 5th Circuit), 17 F.2d 574; Connolly v. Steel Corp., 100 Conn. 423, 123 A. 906; Peterson v. Fisher Body Co., 167 N.W. 987, 201 Mich. 529; Cooke v. Holland Furnace Co., 166 N.W. 1013; Kalucki v. American Car & Foundry Co., 166 N.W. 1011; Dane v. Michigan United Traction Co. (1918), 200 Mich. 612, 166 N.W. 1017; McMullen v. Gavette Constr. Co. (1918), 200 Mich. 203, 166 N.W. 1019. (3) The employee failed to comply with section 38, and in consequence had no right to maintain any proceedings under the Compensation Act. Rogulj v. Mining Co., 288 F. 549; Ohio Oil Co. v. Ind. Comm., 127 N.E. 743; Ridge Coal Co. v. Ind. Comm., 131 N.E. 637, 298 Ill. 532; Beech v. Keicher, 289 S.D. 519 (Tenn.) ; Bushnell v. Ind. Board, 114 N.E. 496, 276 Ill. 262; Bates & Rogers Const. Co. v. Allen, 210 S.W. 467; In re Murphy, 226 Mass. 60, 115 N.E. 40; Standard Cabinet Co. v. Landgrave, 128 N.E. (Ind. App.) 358.

Douglas H. Jones for respondent.

(1) (a) Failure of employee to give written notice waived by employer because not pleaded as a defense. 37 C. J. 1213; Davies v. Keiser, 246 S.W. 897; 297 Mo. 1; McPherrin v. Lumbermen's Supply Co., 242 S.W. 136, 211 Mo.App. 385; Jones v. Munroe, 231 S.W. 1069 (Mo. App.). (b) Written notice waived by employer as it had actual knowledge. Sec. 38, Compensation Act, Laws 1927, p. 511. (2) Employer's failure to give notice of accident. (a) Excuses failure on part of employee to do same. Secs. 34 and 36, Compensation Act, Laws 1927, p. 511; State ex rel. Brewen-Clark Syrup Co. v. Workmen's Compensation Commission, 320 Mo. 893, 8 S.W.2d 897, 898; 13 C. J. 627. (b) Estops employer to raise question. Sec. 34 of the Act makes omission misdemeanor; Sec. 1334, R. S. 1919; 36 Cyc. 1152; Crohn v. Kansas City Home Tel. Co., 131 Mo.App. 313; Gaston v. Lamkin, 115 Mo. 20, 32-33; Clark v. R. R., 219 Mo. 524; State ex rel. v. Thompson, 81 Mo.App. 549; State ex rel. v. Hawkins, 103 Mo.App. 251; State ex rel. v. Musick, 145 Mo.App. 33, 34; City of Macon v. Sparrow, 197 Mo.App. 654; Collins v. Pease, 146 Mo. 135, 139; 37 C. J. 1019-20; 37 C. J. 1024-25; DeHartre v. Edmonds, 200 Mo. 246. (3) Period of limitations does not begin to run until injury is ascertained and does not run from date of accident. Sec. 39, Compensation Act; Cooke v. Holland Furnace Co., 200 Mich. 192, 166 N.W. 1013, 1015; Guillod v. Kansas City Power & Light Co., 18 S.W.2d 97; Johansen v. Union Stock Yards Co., 99 Neb. 328, 156 N.W. 511-512; Selders v. Corn Husker Oil Co., 111 Neb. 300, 196 N.W. 316, 317; McGuire v. Phelan Shirley Co., 111 Neb. 609, 197 N.W. 615; Esposito v. Marlin Rockwell Corp., 96 Conn. 414, 114 A. 92, 93; Hines v. Norwark Lock Co., 100 Conn. 533, 124 A. 17, 19, 20; Hustus' Case, 123 Me. 428, 123 A. 514, 5-15-16; Guderian v. Sterling Sugar & Ry. Co., 151 La. 59, 91 So. 546; Texas Employers Ins. Assn. v. Wonderly, Tex. Civ. App. , 16 S.W.2d 386; Texas Employers Insurance Co. v. Fricker, Tex. Civ. App. , 16 S.W.2d 390; Stolp v. Department of Labor, 138 Wash. 685, 245 P. 20, 21; Fee v. Department of Labor, 151 Wash. 337, 275 P. 741, 742; Sec. 1315, R. S. 1919.

BENNICK, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.

This is a proceeding under the Workmen's Compensation Act, growing out of an accident which occurred on August 3, 1927, in the plant of the employer, Schneider Engraving Product, Inc., at 407 South Broadway, in the city of St. Louis, when a wrench, weighing three or four pounds, slipped out of the claimant's hand and fell down upon his left foot, fracturing the metacarpal bone of the second toe.

The claimant testified that he felt a stinging sensation in his foot at the time, and that he "hopped around a little," but thinking he was not seriously hurt, he said nothing to any one about the accident, and continued on with his work. Some two weeks later, however, he commenced to have pain in his foot, and swelling appeared in the region where the wrench had struck, whereupon, knowing nothing of compensation, he reported the matter to Albert Snider, his foreman, who took the position that the claimant had not been hurt in the shop, but that instead he was suffering from rheumatism. In fact the claimant received treatment for a rheumatic condition at the hands of his family physician, and it was not until the latter part of the following November that he learned of the existence of the fracture, when he called upon Dr. Peden, who took an X-ray picture of the injured region.

On February 8, 1928, the employer reported the accident to the commission, and on February 10th the formal claim for compensation was filed. Thereafter the employer, and its insurer, United States Fidelity & Guaranty Company, filed their answer, denying that the claimant's injury was by accident arising out of and in the course of his employment, and that his claim had been filed within the six-months period of limitation provided by the act.

After a hearing, the commission made a finding that the employer's compensation liability was fully covered by the insurer, and that the injury to the claimant was by accident arising out of and in the course of his employment, and thereupon entered an award in favor of the claimant for $ 35 for medical aid, and $ 132 for permanent partial disability, or for the aggregate sum of $ 167.

An appeal was thereafter perfected to the circuit court by the employer and the insurer, which resulted in the entry of a judgment affirming the award of the commission with costs to the employer. Following this, a motion for a new trial was filed by "the defendant," and an exception was duly saved to the order of the court overruling it, after which the employer alone prayed for and was allowed an appeal to this court.

In passing, it may be said that the reason why no appeal was taken by the insurer, who is the one primarily and directly liable to the claimant under Section 27 of the Act, Laws 1927, p. 506, does not appear.

We gather from the briefs that throughout the course of this proceeding the chief controversy between the parties has centered around the effect to be ascribed to Section 34 of the Act, requiring the employer, within ten days after knowledge of an accident resulting in personal injury to an employee, to notify the commission thereof; to Section 38, which provides that no proceedings for compensation shall be maintained unless written notice of the time, place, and nature of the injury, and the name and address of the person injured, is 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 the same; and to Section 39, which provides that no proceedings for compensation shall be maintained unless a claim therefor is filed with the commission within six months after the injury, save that in all other respects the limitation shall be governed by the law of civil actions other than for the recovery of real property.

In this instance it would appear from the testimony that no written notice was ever given the employer by the employee, although oral notice was given to the foreman within less than thirty days; and we repeat that notice was not given the commission by the employer until February 8, 1928, and that the employee's claim was not...