Wheeler v. Missouri Pac. R. Co.

• Decision Date: 01 December 1930
• Docket Number: No. 17041.,17041.
• Citation: 33 S.W.2d 179
• Parties: WHEELER v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

33 S.W.2d 179

WHEELER v. MISSOURI PAC. R. CO.

No. 17041.

Kansas City Court of Appeals. Missouri.

December 1, 1930.

Appeal from Circuit Court, Pettis County; Dimmitt Hoffman, Judge.

"Not to be officially published."

Proceedings under the Workmen's Compensation Act by Corbine Henry Wheeler, claimant, against the Missouri Pacific Railroad Company, employer. From a judgment of the circuit court reversing an award of the Workmen's Compensation Commission denying the claim, and entering an award in favor of the claimant, the employer appeals.

Reversed and remanded, with directions, and the cause certified and transferred to the Supreme Court.

Montgomery & Rucker, of Sedalia, for appellant.

Donald S. Lamm, of Sedalia, for respondent.

BLAND, J.

This proceeding was instituted on April 20th, 1929, before the Workmen's Compensation Commission, by the filing of a claim for compensation by respondent for the loss of the sight of his right eye. The commission made an award denying the claim. Claimant appealed to the circuit court where the award of the commission was reversed and judgment was entered in favor of the claimant in the sum of $1,063.92, less the sum of $50.00 which had theretofore been paid claimant. Defendant has appealed.

In the claim filed it was alleged that by reason of an accident, which occurred on March 30th, 1927, claimant had sustained an injury to his right eye of such character that the sight thereof became gradually impaired until total blindness resulted on December 15th, 1928.

Defendant filed an answer to the claim admitting the occurrence of the accident but denying claimant's blindness was due to such accident. As a part of the defense it was alleged that the commission was without jurisdiction because the claim had not been filed within the time provided by section 39 of the Workmen's Compensation Act. See Laws 1927, p. 511. In its award the commission gave as its reason for allowing no compensation:

"That this Commission has no jurisdiction to pass upon this claim because of employee's failure to comply with Sec. 39, Workmen's Compensation Act, Laws of 1927. Disability in accordance with Section 17 of said Act being apparent within 90 days after the accident and claim was not filed until two years after date of accident."

It appears by plaintiff's testimony that on March 30th, 1927, while he was in the course of his employment with defendant and engaged in driving a spike into a railroad tie in defendant's railroad yards in Sedalia, Missouri, "a piece of something flew" into his right eye; that his eye pained him at the time of the accident; that he worked the remaining thirty minutes until quitting time; that he then went home, attempted to see a doctor that night, without success, and the next day called upon Dr. Titsworth; that the doctor told him that "something had flew through the eye and cut it and gone out again"; that the doctor put some medicine in his eye and bandaged it; that he called on Dr. Titsworth twice a day until the expiration of about a month, when the doctor took the bandage off.

Claimant further testified that immediately after the accident his eye was affected, in that: "It seemed like I was looking through celluloid or something like that. I could not see to tell what anything was. It was like I was looking through something cloudy"; that when the bandage was taken off his vision was still cloudy; that when the doctor got ready to release him he asked the doctor if the latter thought that the eye would go out and the doctor replied, "No, he did not think it would"; that the doctor said that the medicine that he "had put in the eye would cause it to look hazy and cloudy" but "when the medicine got out" the eye would clear up and "be all right"; that he believed what the doctor told him but the eye continued to get cloudy and the vision gradually became impaired until between December 15th, 1928 and January 1st, 1929, when he was no longer able to see light by the use of the eye; that he did not see the doctor after the bandage was removed because the doctor told him that his eye would get all right; that he had never had any other accident of any kind to the eye; that, beginning with the date of the accident, he was out of employment sixty days when he went to work for the M. K. & T. Railroad Company; that within ninety days he had "practically lost" the vision of his eye; that for "all practical purposes" the eyesight was gone ninety days after the accident occurred; that prior to the total loss of the vision of his eye he could not read with it and could not see "anything further than that door there (indicating)"; that he could recognize a person three or four months after the accident "if I could get close enough"; that he "could see light and the images of anything if it was close to me and I could see that way until in December," 1928, and could see "a little" until the last of that month; that before he completely lost the sight of his eye he depended on his left eye "for all practical purposes."

Claimant further testified that defendant's claim agent came to see him three or four days after the accident and took a statement from him relative to it and that on the day following the removal of the bandage he settled with the defendant for $50.00. The evidence shows that in the release the accident was treated as "interstate" and of course there was no report of it to the Workmen's Compensation Commission and, consequently, no approval of the settlement by it.

Dr. Titsworth testified that he was employed by the Missouri Pacific Hospital Association; that claimant first came to see him on April 1st, 1927, and he treated him until April 25th, 1927; that he examined plaintiff's eye and found that plaintiff had "a cut in the right eye on the nasal side, though the cornea into the ciliary body"; that the eye responded to treatment; that the bandage was removed on April 25th; that at that time claimant was advised that all inflammation should subside and the eye clear up within the next week or ten days; that claimant was not discharged by him; that he expected to continue the treatment until all the inflammation had subsided, but the claimant did not return for further treatment; that the witness did not again see him until some time in February, 1929, at which time plaintiff was totally blind in the right eye. The doctor further testified that plaintiff's blindness was the result of inflammation; that the cause of inflammation is an infection; that it is possible that the blindness that plaintiff was suffering from was caused by the accident but not probable; that it was his opinion that claimant's blindness was the result of some intervening inflammation.

It is defendant's contention that claimant's sight was impaired immediately following the accident and, consequently, he, knowing of this impairment at that time, suffered a compensable injury then and his claim, not having been filed within six months after the accident, was barred by section 39 of the Workmen's Compensation Act. Section 39 provides as follows:

"No proceedings for compensation under this act 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."

Section 7 (b) provides:

"The word `accident' as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptons of an injury. The term `injury' and `personal injuries' shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom."

Under some compensation statutes the period of limitation for the filing of a claim with the commission commences to run with the time of the accident. However, in view of the peculiar wording of our statute, the limitation does not begin to run until a compensable injury has been received. There is a distinction between an accident and an injury. See Johansen v. Union Stock Yards Co., 99 Neb. 328, 156 N. W. 511; Cooke v. Holland Furnace Co., 200 Mich. 192, 166 N. W. 1013, 1015, L. R. A. 1918E, 552. The injury is not the accident but the result of the accident. If the result is delayed, the injury is delayed. Cooke v. Holland Furnace Co., supra.

The parties hereto do not agree as to at what time an injury is said to have occurred. Defendant claims that "injury," as that word is used in the act, means that time after the accident when it becomes reasonably discoverable and apparent that a compensable injury has been sustained. On the other hand claimant seems to contend that the word "injury" means the specific disability for which a claim for compensation is made. Compensation is sought in this case under the provisions of section 17 of the Workmen's Compensation Act, which provides for compensation for the "complete loss of the sight of one eye" as a permanent partial disability. However, the act provides for other character of compensation, section 13 of the act provides compensation in the way of medical aid, section 15, for temporary total disability, section 16, for temporary partial disability. Section 17 (under which the claim is made in this case) provides for permanent partial disability.

We do not think that the Compensation Act contemplates a construction such as claimant would have us give it. It was stated by the St. Louis Court of Appeals in Schrabauer v. Schneider Engraving Product, Inc., 25 S.W. (2d) 529, 532:

"We...