Wheeler v. Missouri Pac. R. Co.

• Decision Date: 01 October 1931
• Citation: 42 S.W.2d 579,328 Mo. 888
• Parties: Corbine Henry Wheeler v. Missouri Pacific Railroad Company, Appellant
• Court: Missouri Supreme Court

42 S.W.2d 579

328 Mo. 888

Corbine Henry Wheeler v. Missouri Pacific Railroad Company, Appellant

Supreme Court of Missouri

October 1, 1931

Transferred from Kansas City Court of Appeals.

Reversed and remanded (with directions).

Montgomery & Rucker for appellant.

(1) "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." Sec. 7, subsec. b Workmen's Compensation Act, Laws 1927, p. 495. (2) The Compensation Act is wholly substitutional in character creating a new right and remedy entirely exclusive of the right and remedy available at common law. Kemper v. Gluck (Mo. App.), 21 S.W.2d 922. (3) Where by statute a right of action is given which did not exist at common law and the statute giving the right fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition on such right. Consequently, the making of a claim for compensation within the period fixed by the act is jurisdictional and mandatory, and is a condition precedent to the right to maintain the proceeding. 37 C. J. 732; Simmons v. Holcomb, 98 Conn. 770, 120 A. 510; London Guarantee & Acc. Co. v. Industrial Commission (Colo.), 263 P. 405; U.S. Casualty Co. v. Smith, 162 Ga. 130, 133 S.E. 831; Ideal Fuel Co. v. Industrial Comm. (Ill.), 131 N.E. 649; Hustus Case (Me.), 123 A. 514; In re Carroll (Mass.), 114 N.E. 285; Cristo v. Standard Oil Co. (N. J.), 121 Al. 609; O'Esau v. Bliss Co., 177 N.Y.S. 203, 188 A.D. 185; Graham v. Wells Brick Co. (Tenn.), 266 S.W. 770; Kalucki v. Am. Car & Foundry Co. (Mich.), 166 N.W. 1011; Smith v. Solvay Process Co. (Kan.), 163 P. 645; Dukrkopf v. Bennett, 108 Neb. 142, 187 N.W. 813; Cooke v. Furnace Co., 200 Mich. 192, 166 N.W. 1013; Beach v. Gendler, 148 Minn. 421, 182 N.W. 607. (4) In cases wherein latent injuries are involved, the claim for compensation must be filed within six months of the time when it becomes reasonably discoverable and apparent that a compensable injury has been sustained. Texas Employer's Ins. Assoc. v. Wonderly (Tex.), 16 S.W.2d 386; Hustus Case, 123 Me. 428, 123 A. 514; Esposito v. Marlin-Rockwell Corp., 96 Conn. 414, 114 A. 92; Schumaker Co. v. Kendrew, 68 Ind.App. 466, 120 N.E. 722; In re Brow, 228 Mass. 31, 116 N.E. 897; Stolp v. Department (Wash.), 245 P. 20; Selders v. Oil Co. (Neb.), 196 N.W. 316; McGuire v. Shirt Co. (Neb.), 197 N.W. 615. (5) The finding of fact by the Commission that the respondent's disability in accordance with Section 17 of the act became apparent within ninety days after the accident and that the claim for compensation was not filed until two years after the accident, was conclusive and binding upon the circuit court and will not be reviewed by this court if supported by competent evidence. Sec. 44, Workmen's Compensation Act, Laws 1927, p. 512; State ex rel. Syrup Co. v. Workmen's Comp. Comm. (Mo.), 8 S.W.2d 897. (6) The respondent's sight having been impaired immediately following the accident and he having suffered a compensable injury at that time, his claim not having been filed within six months thereafter, was barred by limitation. Graham v. Brick Co. (Tenn.), 266 S.W. 770; Kauffman v. Indus. Acc. Comm. (Cal.), 174 P. 691; Kalucki v. Am. Car & Foundry Co. (Mich.), 166 N.W. 1011; Smith v. Solvay Process Co. (Kan.), 163 P. 645.

D. S. Lamm and Barnett & Hayes for respondent.

(1) The appellant employer was under a positive legal duty to notify the commission of the accident to respondent within ten days after knowledge of the accident. Sec. 3332, R. S. 1929. (2) Upon receipt of the notice of the accident, it became the duty of the commission to assist the respondent in his claim. Sec. 3334, R. S. 1929. (3) The failure of the employer to give notice of the accident to the commission was an "improper act" which tolled the statute until notice was given. As notice was never given, the statute did not start to run against respondent. Secs. 879, 3332, R. S. 1929; Schrabauer v. Schneider Engraving Products, Inc., 25 S.W.2d 529. (4) An omission to perform a positive legal duty is legal or constructive fraud, irrespective of intent or good faith. 26 C. J. 1059, and p. 1061, pars. 3 and 4; Derby v. Donahoe, 208 Mo. 699; Schrabauer v. Engraving Products, Inc., 25 S.W.2d 529; Spallholz v. Sheldo, 216 N.Y. 205, 110 N.E. 431; Leader Publishing Co. v. Grant Trust Co., 182 Ind. 651, 108 N.E. 121; Stephens v. Alabama Land Co., 121 Ala. 450, 25 So. 995; 26 C. J. 1071. (5) A legal or constructive fraud, resulting in an injury is an "improper act" within Sec. 879, R. S. 1929. Fraudulent intent or bad faith need not be shown. Schrabauer v. Schneider Engraving Products, Inc., 25 S.W.2d 529.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

This case was certified to this court by the Kansas City Court of Appeals. [See 33 S.W.2d 179.] The reason assigned is that the court considered its opinion to be in conflict with the decision of the St. Louis Court of Appeals in the case of Schrabauer v. Schneider Engraving Products, Inc., 25 S.W.2d 529.

The statement of the case, and that part of the opinion of the Kansas City Court of Appeals wherein there is no conflict with the Schrabauer case, supra, read as follows:

"This proceeding was instituted on April 20, 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 $ 1063.92, less the sum of $ 50, 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 30, 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 15, 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 30, 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 15, 1928, and January 1, 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...