State ex rel. Missouri Gravel Co. v. Missouri Workmen's Compensation Commission
| Decision Date | 01 March 1938 |
| Parties | STATE OF MISSOURI EX REL. MISSOURI GRAVEL COMPANY AND UNITED STATES FIDELITY AND GUARANTY COMPANY, RELATORS, v. MISSOURI WORKMEN'S COMPENSATION COMMISSION, RESPONDENT |
| Court | Missouri Court of Appeals |
PEREMPTORY WRIT GRANTED.
PEREMPTORY WRIT GRANTED.
R. G Church, Jr., William A. Dorsey and William H. Biggs for relators.
Carter & Jones of Counsel.
(1) (a) The right and power to commute an award into a lump sum rests in the sole discretion of the Workmen's Compensation Commission. Sec. 3346, R. S. Mo. 1929; 2 Schneider Workmen's Compensation Law (2 Ed.), sec. 504, pp. 1702, 1710; McMullen v. Gavette Construction Co., 207 Mich. 586, 175 N.W. 120; 5 W. C. L. J. 270; Wakenva Coal Co. v. Deaton, 233 Ky. 393, 25 S.W.2d 1024; Reteuna v. Industrial Com., 55 Utah 258, 185 P. 535. (b) The commutation of periodic payments into a lump sum is an administrative feature the sole unappealable determination of which rests with the Compensation Commission and is not subject to review by the courts. Wakenva Coal Co. v. Deaton, 233 Ky. 393, 25 S.W.2d 1024; Reteuna v. Industrial Com., 55 Utah 258, 185 P. 535. (c) The Commission acted upon and denied the relator's application for an appeal. The Commission exercised its discretion. Having done so, even if its discretion and decision were erroneous, the Compensation Commission cannot be compelled to exercise its discretion in a designated way. Mandamus will not lie to compel the exercise of discretion by the Commission in any particular manner. State ex rel. v. Jones, 155 Mo. 570, 576; State ex rel. v. Klein, 140 Mo. 502; State ex rel. v. Francis, 95 Mo. 44; State ex rel. v. McGrath, 91 Mo. 386; State ex rel. v. Gregory, 83 Mo. 136; State ex rel. v. McGown, 89 Mo. 156; State ex rel. v. St. Louis, 158 Mo. 505-514; State ex rel. v. Oliver, 116 Mo. 188; State ex rel. v. Cramer, 196 Mo. 75; State ex rel. v. State Board of Health, 103 Mo. 22. (d) Where respondent Compensation Commission has no power to perform a command, a writ of mandamus will not go. High on Ex. Legal Remedies (3 Ed.), sec. 14, page 19. (2) (a) The only provisions for an appeal directly from the Compensation Commission are set forth in Sec. 3342, R. S. Mo. 1929. There is no right of direct appeal therein provided for from an order of commutation into a lump sum of periodic payments provided in a final award. Sec. 3342, R. S. Mo. 1929. (b) The only right to and method of appeal from the Workmen's Compensation Commission are those specifically set out in the act itself. If not there given appeal does not lie, if given it is from and for the matters set out and none other, and in the manner and upon the terms provided by the Statute thereon. Lyons v. Industrial Com. (Ohio), 180 N.E. 273, 274; Bueker v. Aufderheide et al. (Mo.), 111 S.W.2d 131, l. c. 132. (3) (a) There cannot be two final awards of the same right. One is final, the other is not. The final award is the determination as to whether the claim is compensable and if compensable, the extent and character of injury, disability or loss, and the fixing of compensation and in what amounts and for what time same are payable. Secs. 3339, 3340, 3341, 3342, R. S. Mo. 1929. (b) Commutation of a final award into a lump sum payment at a time subsequent to a final award and not made at the time of and as a part of the entry of the final award itself is an administrative detail and is not one of the orders from which an appeal lies directly from the Commission to the circuit court. Sec. 3346, R. S. Mo. 1929. (c) From such an order, the only way to get same into the circuit court is by a certified copy thereof being filed in the circuit court and judgment being entered upon such certified order and in accordance therewith. From such judgment when so obtained or entered an appeal may perhaps lie. Sec. 3343, R. S. Mo. 1929. (4) Relators have misconceived their remedy. No appeal lies from the order complained of. If relators have any remedy it is by a writ of certiorari; or that accorded by Sec. 3343, R. S. Mo. 1929, by filing a certified copy of the order in the circuit court, whereupon said court shall render judgment in accordance therewith. An appeal may lie from such judgment. By means of certiorari, the circuit court has jurisdiction to review the Commission's record to see whether in the matter complained of the Commission has abused, gone beyond, or exceeded its powers. State ex rel. New Amsterdam Co. v. Richardson, 227 Mo.App. 1221, 61 S.W.2d 409, 410, and cases cited; Sec. 23, Art. 6, Mo. Const.
Roy McKittrick, Attorney-General, and Covell R. Hewitt, Assistant Attorney-General, for respondent.
F. D. Wilkins and Rendlen, White & Rendlen of Counsel.
An appeal does lie to the circuit court from an order of the Workmen's Compensation Commission commuting an award of said Commission. State ex rel. Goldman v. Missouri Workmen's Compensation Comm., 32 S.W.2d 142; Mikesch v. Scruggs-Vandervoort-Barney D. G. Co., 46 S.W.2d 961; Stolbert v. Walker-Jamar Co., 84 S.W.2d 213; Schmelzle et al. v. Ste. Genevieve Lime & Quarry Co., 37 S.W.2d 482; Oard v. Hope Engineering Co., 64 S.W.2d 707; N. Y. Ship Building Co. v. Buchanan, 84 N.J. Law 543, 87 A. 86; Mackett v. Ashton, 90 A. 127; Matecny v. Vierling Steel Works, 187 Ill.App. 448; H. G. Goelitz Co. v. Industrial Board, 115 N.E. 855; Lincoln Water & Light Co. v. Industrial Comm., 163 N.E. 381; State ex rel. Speckerman v. Allen, 4 S.W. 414, 92 Mo. 20; Hall v. County Court of Audrain Co., 27 Mo. 329. On account of the nature and character of respondents' return, relators did not believe it was necessary to file any reply to said return, but in order to comply with Sec. 1533, R. S. Mo., 1929, they have filed the above reply.
Original Mandamus.
This is an original proceeding in this court by mandamus, wherein it is sought by relators (the employer and insurer), to compel the Missouri Workmen's Compensation Commission to allow an appeal to the Circuit Court of Pike County directly from an order of that Commission commuting into a lump sum a weekly award of $ 14.03, allowed the widow for the death of her husband, an employee.
The facts are substantially as follows:
Following the death of her husband, the widow duly presented her claim to the Workmen's Compensation Commission, and, on December 19, 1935, the referee entered an award finding that claimant's husband was injured by an accident growing out of and in the course of his employment by the Missouri Gravel Company, being severely burned, causing his death, and allowed death benefits to claimant in the sum of $ 4209, medical aid $ 75.50, burial expenses $ 150, aggregating the sum of $ 4434.50 and directing that said sum, exclusive of medical aid and burial expenses, be paid to the widow at the rate of $ 14.03 per week for 300 weeks, or, until her prior death or remarriage.
The full Commission, on application for review, affirmed the award on March 12, 1936, and the cause was, in due time, appealed to the Circuit Court of Pike County, by the employer and insurer, where the award of the Commission was affirmed, and, upon an appeal to the St. Louis Court of Appeals, such appeal was dismissed on May 7, 1937, for failure of appellants to comply with the rules.
Thereafter, on May 17, 1937, an application by the widow for an order of commutation was duly filed with the Workmen's Compensation Commission. Upon a hearing of such application before the full Commission on August 7, 1937, the award was commuted to $ 2418.21, then the present value of the final award, all being done under section 3346, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., sec. 3346, p. 8282). A fee of 25 per cent of the lump sum was allowed in favor of the attorneys, with the consent of the widow, which has been paid out of the award to the widow, leaving the net lump sum due her as of August 7, 1937, $ 1449.66, the amount involved in this proceeding.
On August 16, 1937, the employer and insurer filed their motion praying the Commission to vacate its order granting a lump sum settlement to the widow, and, on August 20, 1937, the Commission filed its order denying said motion.
On August 31, 1937, the employer and insurer filed with the Workmen's Compensation Commission its notice of appeal to the circuit court, requesting the Commission to certify all documents and papers on file in the matter, together with the transcript of the evidence, etc., to the Circuit Court of Pike County, Missouri. On September 8, 1937, the Commission by an order refused to grant an appeal from its order granting a lump sum settlement, stating of record that "this matter of appeal has been referred to the attention of the full Commission and it is their opinion that the granting of a lump sum is a matter lying within the discretion of the Commission and that no appeal lies from such an order; we will, therefore, not send this case to the circuit court."
Thereupon, on October 8, 1937, relators filed their petition for the issuance of an alternative writ of mandamus in this court and such writ was issued on November 5, 1937.
The question for determination in this case is the simple one involving the right of appeal where there has been a final award of compensation to be paid periodically to the widow of a deceased employee by the Missouri Workmen's Compensation Commission, which award has been duly affirmed by the courts on appeal, and which award, under section 3346, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., sec. 3346, p. 8282), has been duly commuted into a lump sum payment by the Commission.
In disposing of this question it is recognized that appeals are such as are provided by statute....
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