De Tienne v. Wellsville Fire Brick Co.

• Decision Date: 03 April 1934
• Docket Number: No. 22777.,22777.
• Citation: 70 S.W.2d 369
• Parties: DE TIENNE v. WELLSVILLE FIRE BRICK CO. et al.
• Court: Missouri Court of Appeals

70 S.W.2d 369

DE TIENNE v. WELLSVILLE FIRE BRICK CO. et al.

No. 22777.

St. Louis Court of Appeals. Missouri.

April 3, 1934.

Rehearing Denied April 17, 1934.

Appeal from Circuit Court, Montgomery County; W. C. Hughes, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by J. A. De Tienne, claimant for injuries, opposed by the Wellsville Fire Brick Company, employer, and the Fidelity & Casualty Company of New York, insurer. From a judgment of the circuit court reversing the decision of the Compensation Commission, which denied compensation, employer and insurer appeal.

Affirmed.

Rehearing denied 70 S.W.(2d) 372.

See, also, 70 S.W.(2d) 371.

Albert E. Cunliff and G. A. Hodgman, both of St. Louis, for appellants.

Earl T. Crawford and Samuel P. Harlan, both of Sedalia, for respondent.

BECKER, Judge.

This is an appeal under the Workmen's Compensation Act. The employee sustained an injury on June 17, 1931. The employer filed a report of the accident with the commission on June 30, 1931, and on July 21, 1931, paid the employee $20.57 as compensation for temporary total disability resulting from said accident. On August 23, 1931, "final report and receipt for compensation" was filed with the commission. After receiving this final receipt, the commission, on August 31, 1931, wrote a postal card to the insurer in the case stating thereon that "we hereby acknowledge receipt of your letter 8/29/31 (File closed). In the future, please refer to the above Accident Number."

In this state of the record the employee thereafter, on July 16, 1932, filed with the Workmen's Compensation Commission his formal and amended claim for compensation for the injuries alleged to have been received by him on June 17, 1931, which claim was heard and an award for compensation refused on the ground that "the claim was not filed within six months after the injury, nor within six months from the date of the last payment of compensation and is, therefore, barred by the Statute of Limitation (section 3337, Rev. St. of Mo. 1929 [Mo. St. Ann. § 3337, p. 8269])." On appeal to the circuit court the action of the commission was reversed and the cause remanded. An appeal to this court followed in due course.

It is no longer open to question but that the filing of a compromise or settlement agreement evidenced by the final report and receipt for compensation, as was done in the instant case, constitutes, in effect, the filing of a claim for compensation and gives the commission jurisdiction thereof. Harder v. Const. Co. (Mo. App.) 53 S.W.(2d) 34; O'Malley v. Motor Truck Corp., 225 Mo. App. 1, 31 S.W.(2d) 554.

Appellants urge but one proposition upon this appeal; namely, that the employee's claim for injuries filed with the commission on July 16, 1932, was barred by the statute of limitation, and that the commission's ruling to that effect was a correct interpretation of the law.

We set out three sections of the Missouri workmen's compensation statutes which bear upon the question before us on appeal:

"§ 3333. Compromise settlements—how made—when valid.

"Nothing in this chapter shall be construed as preventing the parties to claims hereunder from entering into voluntary agreements in settlement thereof, but no agreement by an employee or his dependents to waive his rights under this chapter shall be valid, nor shall any agreement of settlement or compromise of any dispute or claim for compensation under this chapter be valid until approved by the commission, nor shall the commission approve any settlement which is not in accordance with the rights of the parties as given in this chapter. No such agreement shall be valid unless made after seven days from the date of the injury or death." Mo. St. Ann. § 3333, p. 8267.

"§ 3334. Accident—duty of commission upon receipt of notice.

"* * * If the parties agree, they shall file with the commission a report of the facts and their agreement, and if the agreement is approved by the commission it shall make an award of compensation thereon in accordance therewith." Mo. St. Ann. § 3334, p. 8268.

"§ 3337. Limitation as to action.

"No proceedings for compensation under this chapter shall be maintained unless a claim therefor be filed with the commission within six months after the injury or death, or in case payments have been made on account of the injury or death, within six months from the date of the last payment. In all other respects such limitations shall be governed by the law of civil actions other than for the recovery of real property, but the appointment of a guardian shall be deemed the termination of legal disability from minority or insanity." Mo. St. Ann. § 3337, p. 8269.

The determining factor of the question before us on appeal is whether or not the provisions of sections 3333 and 3334, supra, relating to agreements of settlement or compromise of any claim for compensation or agreements for compensation between employer and employee for injuries received under the Workmen's Compensation Act, are mandatory or directory.

So that there can be no misunderstanding as to appellants' position with reference to the question in hand, we quote the following from their brief filed with us in the case.

"There is nothing in this portion of Section 3334, R. S. Mo. 1929, requiring the Commission to approve any agreement. It is directory, rather than mandatory, that they take any further...