Smith v. Federated Metals Corp. et al.

• Decision Date: 05 December 1939
• Docket Number: No. 25316.,25316.
• Citation: 133 S.W.2d 1112
• Parties: JUDGE SMITH, EMPLOYEE, RESPONDENT, v. FEDERATED METALS CORPORATION, EMPLOYER, AND EMPLOYERS' LIABILITY INSURANCE CORPORATION, INSURER, APPELLANTS.
• Court: Missouri Court of Appeals

133 S.W.2d 1112

JUDGE SMITH, EMPLOYEE, RESPONDENT, v. FEDERATED METALS CORPORATION, EMPLOYER, AND EMPLOYERS' LIABILITY INSURANCE CORPORATION, INSURER, APPELLANTS.

No. 25316.

St. Louis Court of Appeals, Missouri.

Opinion filed December 5, 1939.

Motion for rehearing overruled December 19, 1939.

Writ of Certiorari denied by Supreme Court February 6, 1940.

Appeal from Circuit Court, City of St. Louis. — Hon. William S. Connor, Judge.

AFFIRMED.

Moser, Marsalek & Dearing for appellants.

(1) Secs. 3337, 3315, 3301, R.S. Mo., 1929; Gleason v. Titanium Pigment Co. et al., 93 S.W. (2d) 1039; Wheeler v. Mo. Pac. Ry. Co., 42 S.W. (2d) 579; Higgins v. Heine Boiler Co., 41 S.W. (2d) 565; Cleveland v. Laclede Christy Clay Products Co., 129 S.W. (2d) 12. (2) Under the Workmen's Compensation Act the time prescribed for filing claims is jurisdictional. Claimant's failure to file a claim within the statutory period deprived the Commission of jurisdiction to entertain the proceeding or to make any award of compensation in claimant's favor. Higgins v. Heine v. Heine Boiler Co., supra; Gleason v. Titanium Pigment Co., et al., supra; Wheeler v. Missouri Pacific Ry. Co., supra; Koerner v. St. Louis Car Co., 209 Mo. 157; Mountain View v. Farmers Tele. Exchange, 294 Mo. 623, 636; Simpson v. Iron Works Co., 249 Mo. 276, 384-5; Rauch v. Metz (Mo. en banc), 212 S.W. 353.

Mason & Flynn and S.F. Pinter for respondent.

(1) Gleason v. Titanium Pigment Co., 93 S.W. (2d) 1039; Edwards v. Ethyl Gasoline Corp. (Mo.), 112 S.W. (2d) 555; Carlton v. Henwood, 115 S.W. (2d) 172; Hill v. Chevrolet Motor Co., 115 S.W. (2d) 65 (case involving question as to whether claim was filed within required six months). (2) Gleason v. Titanium Pigment Co., 93 S.W. (2d) 1039; Carlton v. Henwood, 115 S.W. (2d) 172; Wheeler v. Missouri Pacific R.R. Co., 42 S.W. (2d) 579; Kostron v. Am. Packing Co., 45 S.W. (2d) 871; Cleveland v. Laclede-Christy Clay Products Co., 129 S.W. (2d) 12; Renfro v. Pittsburgh Plate Glass Co., 130 S.W. (2d) 165. See also Bridges v. Fruin-Colnon Const. Co. (Mo. App.), 52 S.W. (2d) 582.

BENNICK, C.

This is a proceeding under the workmen's compensation law (Secs. 3299-3376, R.S. Mo. 1929 (Mo. Stat. Ann., secs. 3299-3376, pp. 8229-8294)), the appeal being by the employer and insurer from the judgment of the circuit court affirming a final award of the commission in favor of the employee.

The award was for permanent total disability resulting from an occupational disease — lead poisoning, to be exact — which the employee, Judge Smith, was found to have contracted through long continued work at his employment in handling scrap metals, including lead; and the sole point in issue on this appeal is whether the claim for compensation was filed with the commission within six months from the time it became reasonably discoverable and apparent that a compensable disease had been contracted. The commission made an affirmative finding that the claim had been filed in proper time, and the question of whether there was sufficient competent evidence in the record to sustain that finding is therefore the real issue for our determination.

It was shown that Smith entered the service of the employer, Federated Metals Corporation, in 1926 or 1927, and thereafter continued in its employ until November 15, 1935, when he was discharged by his foreman following a report by the plant physician that his physical condition, and particularly the likelihood of his having an apoplectic stroke, was such as to make him a hazard on the job. It is Smith's contention that the occupational disease he was found to have contracted did not culminate in a compensable disability until the time of his discharge from his employment and that his claim for compensation, which was filed with the commission on May 15, 1936, was consequently filed within six months after his injury as contemplated by Section 3337 of the act, which prescribes the limitation as to action on a claim. The employer and insurer argue, on the other hand, that under Smith's own admissions, he had known, at least by 1932, which was some four years before his claim for compensation was filed, that he was suffering from a condition or disease which he attributed to the incidents of his employment, and that inasmuch as it was then reasonably apparent to him that a compensable disease had been contracted, the period of limitation must be held to have run long prior to the time of the institution of this proceeding.

Following the rule which obtains with respect to latent injuries generally, which is that the limitation period begins to run from the time it becomes reasonably discoverable and apparent that a compensable injury has been sustained, it has been specifically held that in an occupational disease case the "injury" which starts the running of the statute occurs at that time when the disease produces a compensable disability. [Renfro v. Pittsburgh Plate Glass Co. (Mo. App.), 130 S.W. (2d) 165.] In other words, it is not enough to start the running of the statute that the employee shall merely have reason to know or believe that he is suffering ill effects, which, even though attributable to the natural incidents of his employment, have not progressed to the point of in anywise impairing his capacity for work, but instead it must be reasonably discoverable and apparent to him that he has sustained a compensable injury, which cannot be the case until his disease, if occupational in its origin, results in disability of some degree which can be the subject of compensation under the act. Absent disability in some degree, there is no "injury" in an occupational disease case, and as the act is written it is the occurrence of "injury" which marks the beginning of the period within which a proceeding for compensation may be maintained.

In this case Smith testified that the only time he stayed home or was under the doctor's care while he worked for the employer was in the latter part of ...