Wadley v. Employers' Liability Assur. Corp.

• Decision Date: 06 April 1931
• Citation: 37 S.W.2d 665,225 Mo.App. 631
• Parties: D. L. WADLEY, RESPONDENT, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, APPELLANT
• Court: Kansas Court of Appeals

37 S.W.2d 665

225 Mo.App. 631

D. L. WADLEY, RESPONDENT, v. EMPLOYERS LIABILITY ASSURANCE CORPORATION, APPELLANT

Court of Appeals of Missouri, Kansas City

April 6, 1931

Appeal from the Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

AFFIRMED.

Judgment affirmed.

Frank Wilkinson and Raleigh Gough for respondent.

Hackney & Welch for appellant.

BOYER C. Campbell, C., concurs. Trimble, P. J., absent.

OPINION

BOYER C.

This proceeding originated before the Workmen's Compensation Commission. The claim was filed April 25, 1929. It gives the name of the employer as the Kansas City-Godman Shoe Company and shows that claimant was injured September 18, 1928, in the State of Oklahoma, and as a result of said injury lost his right eye. On May 1, 1929, the named employer filed its answer in which all statements in the claim for compensation are admitted. Thereafter and on May 11, 1929, the insurer, appellant here, filed another answer in which the name of the employer is given as the H. C. Godman Company, Columbus, Ohio; that the answering insurer is the insurer of the Kansas City-Godman Shoe Company, Kansas City, Missouri, and that all statements in the claim are admitted except the following:

"The insurer denies that a claimant was employed by Kansas City-Godman Shoe Company, asserting he was an employee of the H. C. Godman Company of Columbus, Ohio, an Ohio corporation; that his contract of the employment was not entered into in Missouri, that the accident occurred in Oklahoma and that Missouri Workmen's Compensation Commission has no jurisdiction.

"The insurer asserts that no proceedings for compensation under Missouri Workmen's Compensation Law can be maintained as claimant did not file claim with Missouri Workmen's Compensation Commission within six months after the injury, as provided in said law."

After the answer of the insurer was received the commission notified all parties of the claim made by the insurer that the contract of employment was not entered into in Missouri, and requested facts as to where said contract was made. The Kansas City-Godman Shoe Company answered this letter to the effect that the insurance company made the claim about the place of the contract because Wadley formerly worked for the H. C. Godman Company at Columbus, Ohio, and was later transferred to the Kansas City Company September 1, 1928; that the Ohio Company had informed the Kansas City Company that Wadley was actually hired in St. Louis, Missouri, about April 1, 1928, to travel for that company. The Kansas City-Godman Shoe Company further stated to the commission that Wadley reported to its office for work about September 1, 1928, and after that date his salary and traveling expenses were paid by it, and the letter concludes:

"There was no question on the part of either this company or Mr. Wadley as to who he was working for after September 1, 1928, as he carried our samples and reported to this office for instructions. In view of the fact that our insurance company insisted that Mr. Wadley was working under an Ohio contract we had him file his claim with the Ohio Industrial Commission. We also furnished the Ohio Commission with all details regarding the case and they naturally rejected the claim for want of jurisdiction.

"We trust this additional information will enable you to give the claim proper consideration."

Thereafter the commission again wrote all parties informing them of the receipt of the employer's letter and stated:

"Therefore it appears that this case is under our jurisdiction so far as the law of place is concerned."

There was a suggestion that the parties agree upon a place of hearing and that the case would be set for hearing at the Kansas City office unless otherwise advised. Thereafter one of the members of the commission heard evidence and made an award November 22, 1929, in favor of the employer and insurer and against the employee and awarded no compensation because the employee failed to file his claim within six months. Thereafter on review the full commission affirmed the award. There was no findings of fact or rulings of law made by the commissioner or by the commission. The whole contents of the final award as shown by the record in this case consist of the number of the accident claim, the name of the employee, employer, insurer, date and place of the accident, that it was submitted on review November 26, 1929, and the following recital:

"The above parties having submitted their disagreement or claim for compensation for the above accident to the undersigned members of the Missouri Workmen's Compensation Commission and after hearing the parties at issue, their representatives, witnesses and evidence, the undersigned hereby find in favor of the above employer and insurer and against the above employee and award no compensation for the above accident.

"For the reason that employee failed to file his claim for compensation within the six-month period as provided in section 39 of the act.

"Affirming on review award dated November 22, 1929. Given at the City of Jefferson, State of Missouri, this 17th day of February 1930."

The award was signed by three members of the commission and by the secretary. Claimant appealed to the circuit court of Jackson county, and after a hearing duly held the court reversed the award of the commission and remanded the cause for further hearing, as evidenced by the following portions of the record entry of the judgment:

"Now, therefore, the court finds that the admitted failure of the defendants, the Kansas City-Godman Shoe Company, employer, and the Employers' Liability Assurance Corporation, the insurance carrier herein, to notify the Missouri Workmen's Compensation Commission of the accident herein, as required by section 34 of the Missouri Workmen's Compensation Act (Laws 1927, page 509), was an 'improper act' within Revised Statutes 1919, section 1334, and hence tolled the running of the six months statute of limitations, as set out in section 39 of the Compensation Act; and this court therefore holds that the filing of the claim for compensation by D. L. Wadley, claimant in this cause, was timely under the provisions of section 39 of the Compensation Act.

"This court further finds that in its judgment the Missouri Workmen's Compensation Act contemplates findings of fact and rulings of law on the part of the commission, and that in this cause the commission did not make such findings of fact and rulings of law as contemplated by the act.

"This court therefore finds that in the rendition of the decision or award of the commission in this cause the commission acted without or in excess of its powers; that the facts found by the commission do not support the decision or award and that there was not sufficient competent evidence in the record to warrant the making of the decision or the award.

"Wherefore, it is ordered and adjudged, that this cause be remanded to the Missouri Workmen's Compensation Commission for rehearing in accordance with the findings and orders of this court, and for such other proceedings as may be proper under the provisions of the Missouri Workmen's Compensation Act (Laws of Missouri 1927, pages 490-525)."

The employer did not appeal from this judgment. The insurer alone appeals and confines the assignments of error to the sole question of territorial jurisdiction. No assault is made upon the correctness of the finding and ruling of the court which constitute the basis of the judgment actually rendered. Therefore it may be assumed that appellant has waived and abandoned all objection to the finding and judgment that the claim was filed in time and that the commission should make findings of fact and rulings of law, and that these questions are not here for review on this appeal. The ruling of the court that the conduct of the employer and the insurer in failing to notify the commission of the accident tolled the running of the statute of limitations may be right (Schrabauer v....