State ex rel. Buttiger v. Haid

• Citation: 51 S.W.2d 1008,330 Mo. 1030
• Decision Date: 10 June 1932
• Docket Number: 31709
• Parties: State ex rel. Ida L. Buttiger, Relator, v. George F. Haid et. al., Judges of the St. Louis Court of Appeals
• Court: United States State Supreme Court of Missouri

51 S.W.2d 1008

330 Mo. 1030

State ex rel. Ida L. Buttiger, Relator, v. George F. Haid et. al., Judges of the St. Louis Court of Appeals

No. 31709

Supreme Court of Missouri

June 10, 1932

Record quashed.

Alroy S. Phillips, Robert C. Powell and Charles S Sigoloff for relator.

(1) Section 3336, R. S. 1929, does not apply in case of death and the decision of the Court of Appeals holding that it does apply in such case is contrary to and in conflict with the last previous decisions of this court. Secs. 3336, 3337 3305, R. S. 1929; Wheeler v. Railroad Co., 42 S.W.2d 579, 581; Texas Employer's Ins. Assn. v. Lovett, 19 S.W.2d 398; Diarotti v. Ry. Co., 262 Mo. 8; Randolph v. Springfield, 302 Mo. 46. (2) The decision of the Court of Appeals that the Commission made no finding of good cause is contrary to and in conflict with the last previous decisions of this court. (a) The referee made a finding of good cause for failure to give notice of the injury. Sec. 3336, R. S. 1929; Ellis v. Fairfield Ship Building Co., 6 B. W. C. C. 317; Brackett's Case 126 Me. 365, 138 A. 557; Consolidated Underwriters v. Seale, 237 S.W. 644; Maryland Casualty Co. v. Robinson, 149 Va. 307, 141 S.E. 225, 226; Cochran v. Thomas, 131 Mo. 258. (b) When the Commission modified and affirmed the award of the referee it adopted his finding of good cause. 2 C. J. 380; Smith v. Paris, 70 Mo. 621; Lack v. Brecht, 166 Mo. 256; Aufderheide v. Polar Wave Ice & Fuel Co., 4 S.W.2d 800; State ex rel. May Dept. Stores v. Haid, 38 S.W.2d 50; Secs. 3339, 3342, 3349, R. S. 1929.

William R. Schneider and J. J. Cooney for respondent.

In the case at bar the employer's and insurer's principal defense was that they had been prejudiced by failure to give such notice. This defense was set up in their answer and also in their opening statement. This defense has never been abandoned and under the statute and all the authorities a finding of fact should have been made thereon, otherwise the award is not properly supported and should be set aside. Jones v. Arnold, W. C. & Ins. Rep., 513; Levangie, 228 Mass. 213, 117 N.E. 200; Jones v. Arnold, 1916 W. C. & Ins. Rep. 513, 14 N. C. C. A. 660; Hynes v. Pullman, 223 N.Y. 342, 119 N.E. 706, 2 W. C. L. J. 351; Prokopiak v. Buffalo Gas Co., 176 A.D. 128, 162 N.Y.S. 288; Friers Case, 232 Mass. 181, 122 N.E. 195; Connolly v. The Penn. Seaboard S. Corp., 100 Conn. 423, 123 A. 906; Simmons v. Holcomb, 98 Conn. 770, 120 A. 510; Barry's Case, 240 Mass. 409; Dann v. Schulte Cigar Co., 4 N. J. Misc. 399; Desrochers v. Atwood Crawford Co., 47 R. I. 116; Northeast Coal Co. v. Castle, 202 Ky. 505; William Rahr Sons Co. v. Industrial Commission, 163 N.W. 169; Sicardi v. Sarnoff Hat Co., 176 A.D. 13, 162 N.Y.S. 337; Dodge v. Barstow Stove Co., 40 R. I. 191, 100 A. 245, 16 N. C. C. A. 754; Standard Cabinet Co. v. Landgrave, 76 Ind.App. 593; 2 Schneider on Compensation (2 Ed.) 1992.

OPINION

White, P. J.

Certiorari to the St. Louis Court of Appeals.

That court reversed a judgment of the Circuit Court of the City of St. Louis affirming an award of the Workmen's Compensation Commission of $ 5,221.95 to the relator, widow of Paul F. Buttiger.

Paul Buttiger, in December, 1928, and after, was employed by Ely & Walker Dry Goods Company, as a packer. December 20, 1928, while so employed, a wooden box lid fell on his toe. He limped over to the foreman with his shoe in his hand and told him about the incident. For a time no serious results appeared; there was no break of the skin and no discoloration. His family did not think his injury amounted to much. He continued to work as before without any serious inconvenience.

February 20, 1929, his toe began to hurt him. Up to that time there had been no swelling. He worked from the 20th to the 23rd of February, which was Saturday, returned to work Monday, February 25th, and worked until March 2nd. Mrs. Buttiger reported on the 4th that he was unable to go to work. The foot was badly swollen around the ankle. He could not get his shoe on. About the middle of March his employer learned the full details of the accident, and on March 18 reported it to the commission. The toe was amputated April 2, and later gangrene set in requiring amputation of the left leg April 23, and May 10 Buttiger died of gangrene. There was evidence to show that the gangrene was the direct result of the injury December 20, 1928. All these facts appear from the statement in the opinion of the Court of Appeals. That court summed up the evidence as follows:

"The testimony is uncontradicted to the effect that on the night of the accident, December 20th, there was no laceration or discoloration of the injured toe, and that both Buttiger and his family regarded the injury as trivial. This is corroborated by the packer boss, who testified that Buttiger worked regularly from December 20 until February 20, during which time he did his work as well as ever, and that he noticed nothing wrong with Buttiger's foot. Then, again, the employer's physician, who diagnosed the case as osteomyelitis, testified that the progress of that disease might be slow, without pain or noticeable symptoms for at least two months."

The Court of Appeals held evidence was sufficient to make out a case but reversed the judgment of the circuit court and remanded the cause for the reason stated, as follows:

"We rule, therefore, that the finding of the facts made by the Workmen's Compensation Commission are not sufficient to support the award in that it is admitted that the statutory notice of the alleged accident was not given within thirty days after the happening of the accident, and there is no finding by the Commission that there was good cause shown for failure to give such notice, or that the employer was not prejudiced by failure to receive such notice, for which reason the judgment of the circuit court affirming and approving the final award of the Workmen's Compensation Commission should be reversed, and the proceedings remanded to the circuit court, with directions to enter a judgment reversing and setting aside the award of the Workmen's Compensation Commission and remanding the proceeding to the commission upon the ground that the finding of facts made by the commission are not sufficient to support the award. It is so ordered.

I. The effect of the ruling of the Court of Appeals is that a general finding in favor of the claimant and an award of compensation must be supported by a specific finding of each fact necessary to support the award.

Section 3336, Revised Statutes 1929, is as follows:

"Injured party must notify employer within thirty days -- exception. -- 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."

The holding of the Court of Appeals is that no claim for compensation could be allowed without "written notice" to employer within thirty days after the accident, or a specific finding by the commission that "there was good cause for failure to give such notice, or that the employer was not prejudiced by failure to receive such notice." This conclusion is reached although the evidence may conclusively show that there was good cause for failure to give the notice and that the employer was not prejudiced by failure to receive it.

Manifestly actual notice if received by the employer and acted upon would be sufficient proof that the employer was not prejudiced by the failure of "written notice" required by Section 3336. Likewise the fact that the injury did not appear until more than thirty days after the accident would be good cause for failure to give such notice within thirty days.

It is uniformly held that the award of a commission in such case has the force and effect of the verdict of a jury and in the same way becomes the basis for a court judgment. [State ex rel. Brewen-Clark Syrup Co. v. Workmen's Compensation Comm., 320 Mo. 893, 8 S.W.2d 897, l. c. 899; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d l. c. 604.] That has been followed many times by the courts of appeals. [Woods v. American Coal & Ice Co., 25 S.W.2d 144; Cotter v. Valentine Coal Co., 14 S.W.2d l. c. 662; Kinder v. Hannibal Car Wheel & Foundry Co., 18 S.W.2d 91.] The effect of such ruling is to give to a general finding of the commission the effect of a verdict of the jury; a general finding is like a general verdict.

The court must presume that the jury found every fact of which there was evidence, upon the issues properly submitted to the jury, necessary to support the verdict. [Smith v. K. C. So. Ry. Co., 279 Mo. 173, l. c. 187, 213 S.W. 481.] That principle was applied by court en banc to the finding of the State Warehouse Commissioner (State v. Bradshaw, 313 Mo. l. c. 348), and to a judgment of the probate court (Hidden v. Edwards, 313 Mo. l. c. 666, 285 S.W. 462). If that principle applies here then the general finding of the commission necessarily implies the finding of every fact necessary to support the general finding. The commission could not have made the award without finding that there was good cause for failure to give the written notice, or that the employer was not prejudiced thereby, or both.

The Court of Appeals in the opinion states as a...