Missouri Court of Appeals, 1947

Spradling v. Wackman Welded Ware Co.

Missouri Court of Appeals · Decided October 21, 1947 · Anderson, McCnllen, Hughes

205 S.W.2d 290; 239 Mo. App. 1195; 1947 Mo. App. LEXIS 372 (South Western Reporter, Second Series)

Counsel

Thomas L. Sullivan and Joseph W. Dierker for appellant. (1) The Court erred in sustaining respondent's motion to dismiss the request for judgment as barred by the Statute of Limitations since the cited limitations apply only to the commencement of actions and not the conclusion of such actions. Sections 1012, 1013 and 1014, R.S. Mo. 1939; Friel v. Alewel ( 318 Mo. 1 ), 298 S.W. 762 ; Wayland v. Kansas City, 321 Mo. 654 , 12 S.W.2d 438 ; Macon County v. Farmer's Trust Co. of Macon, 325 Mo. 784 , 29 S.W.2d 1096 . (2) The filing of an agreement and report of facts with the Compensation Commission is the commencement of the action and the case is then pending before the Commission. Detienne v. Wellsville Fire Brick Co. (Mo. App.), 70 S.W.2d 369; O'Malley v. Mack International Motor Truck Corp., 225 Mo. App. 1 , 31 S.W.2d 554 . (3) Upon the filing of an award of the Commission in the circuit court the court shall render judgment thereon. Such judgment shall be the same as of a suit filed in the court and thereafter all proceedings shall be the same as though said judgment was rendered in a suit in said court. Section 3733, R.S. Mo. 1939. (4) The Compensation Act is not cumulative to or supplemental of the Common Law, but is wholly substitutional in character. Kemper v. Gluck, 327 Mo. 733 , 39 S.W.2d 330 ; State ex rel. Melbourne Hotel Co. v. Hostetter, 344 Mo. 472 , 126 S.W.2d 1189 ; Dauster v. Star Mfg. Co. (Mo. App.), 145 S.W.2d 499; Kristanik v. Chev. Motor Co., 226 MA 89, 41 S.W.2d 911 . (5) The award of the Commission has the force and effect of the verdict of a jury and in the same way becomes the basis for a court judgment. State v. Mo. Work. Comp. Comm., 320 Mo. 893 , 8 S.W.2d 897 ; Gardner v. Ford Motor Co. (Mo. App.), 130 S.W.2d 201; Aldridge v. Amer. Car Fdy. Co. (Mo. App.), 132 S.W.2d 1023. (6) A verdict upon which no judgment has been rendered shall be remanded with orders to enter judgment on the verdict. State v. Hewitt (Mo.), 246 S.W. 546; Arcadia Timber Co. et al. v. Evans, 304 Mo. 674 , 264 S.W. 810 ; McCoy v. Simpson et al., 344 Mo. 215 , 125 S.W.2d 833 . Roby Albin for respondent, Wackman Welded Ware Co. (1) None of the points in appellant's brief should be considered by this Court because of appellant's violation of Sec. 1.08 of Rules of the Supreme Court, in that all six Points set forth in appellant's brief are mere statements of abstract propositions of law, followed by citations, and do not distinctly allege specific errors of the trial court and do not set forth the applicability of such propositions of law to the facts in this case. White v. McCoy Land Co., 87 S.W.2d 672 , 691; Automatic Sprinkler Co. of America v. Stephens, 306 Mo. 518 , 267 S.W. 888 ; Bradbury v. Crites, 312 Mo. 694 , 281 S.W. 725 ; Clay v. Owen, 93 S.W.2d 915; Campbell v. Campbell (Mo. Sup.), 20 S.W.2d 655 , 657. And any and all assignments of error sought to be made by appellant which have not been carried over by mention in its brief under such Points have been abandoned and are not subject to this Court's consideration. Farasy et al. v. Hindert, 82 S.W.2d 573; Clay v. Owen, 93 S.W.2d 914 . (2) Appellant's Point I is not applicable to the facts in this case because appellant's filing his "Petition for Judgment on Award" in the Circuit Court on June 7, 1946 was the commencement of an action in said Court for judgment after more than 10 years after the date of said award (March 28, 1930) and more than 10 years after the last payment thereon (in November 1932) and is therefore barred by the Statute of Limitations. Sections 1012, 1013 and 1014, R.S. Mo. 1939; State v. Mo. Work. Comp. Comm., 320 Mo. 893 , 8 S.W.2d 897 , 900; 2 R.C.L. 388. (3) Appellant's Point 2 is not applicable to the facts in this case because the final award of the Workmen's Compensation Commission on March 28, 1930, unappealed from, became of the force and effect of a final judgment and terminated the proceeding before the Commission. The suit in the Circuit Court for judgment on award is an action de novo and not a continuance of an action pending before the Commission. State v. Mo. Work. Comp. Comm., 320 Mo. 893 , 8 S.W.2d 897 , 900; R.S. Mo. 1939, Sec. 3732. (4) Appellant's Point 3 is inapplicable to the facts of this case because the filing of appellant's petition for judgment in the Circuit Court was barred after 10 years by the limitation provision in the Workmen's Compensation Act itself. R.S. Mo. 1939, Sec. 3727. (5) The award of the Commission on March 28, 1930, and the last payment made thereunder, about November 20, 1932, being more than five years and more than ten years prior to the filing of appellant's petition for judgment on the award in the Circuit Court, were barred as a basis for action in the Circuit Court by the Statute of Limitations. R.S. Mo. 1939, Sections 1012, 1013, 1014, and 3727; State v. Mo. Work. Comp. Comm., 320 Mo. 893 , 8 S.W.2d 897 , 900 2 R.C.L. 388.

Opinion of the Court

*1197 ANDERSON, J.

This is an appeal, from, an order of the Circuit Court, which dismissed appellant’s petition for a judgment on an award of the Missouri Workmen’s Compensation Commission.

On February 16, 1929, appellant, an employee of respondent Wackman Welded Ware Company, suffered an injury arising out of and in the course of his employment. Thereafter an agreement for compensa *1198 tion was entered into between appellant and respondent Wackman Welded Ware Company and its insurance carrier, respondent Union Indemnity Company, which agreement was filed with the Missouri Workmen’s Compensation Commission on March 28, 1930. On the same day, the Commission issued its award, based upon said agreement, which ordered the payment to apellant by respondent Wackman Welded Ware Company and/or its insurance carrier compensation in the sum of $16.50 per week for 227 weeks, together with medical aid as provided by the Act. Said award provided that payment of the sums awarded should begin as of February 17, 1929. No appeal from said award has ever been filed.

The- employer and insurer paid the amounts due under the award until 195 weeks of compensation had been paid. The payment due November 21, 1932, was not paid, nor has any payment been made since, the reason being that respondent’s insurance carrier became insolvent at about the time payments ceased. There now remains unpaid 32 weeks of compensation.

On June 7,1946, appellant filed in the Circuit Court a certified copy of the agreement and the award of the Commission, together with his petition, which prayed that judgment be entered against the' employer-for the principal sum of $537.88, with interest thereon at the rate of 6°/0 per annum from June 24, 1933, together with costs as provided by Section 3733 of the Revised Statutes of 1939.

To this petition respondent Wackman -Welded Ware Company filed its motion to dismiss, on the ground that the proceeding was barred by the statute of limitations. The court sustained said motion, and dismissed employee’s petition.

Appellant’s contention appears to be that the filing of an agreement for compensation with the Commission is the commencement of an action which is terminated by a judgment of the Circuit Court entered pursuant to Section 3733, Revised Statute Missouri 1939, Mo. R. S. A. Sec. 3733, and that the statute of limitations does not run while the action is pending. He also points out that the statute contains no provision fixing the time within which the award may be filed under Section 3733, Revised Statute Missouri, Mo. R. S. A. Sec. 3733.

With this contention we cannot agree. A final award of the Missouri Workmen’s Compensation Commission in a proceeding within its jurisdiction is an adjudication of the rights of the parties as effective as a judgment of a court of law. Wors v. Tarlton, 234 Mo. App. 1173, 95 S. W. (2d) 1199; State ex rel. Wors v. Hostetter, 343 Mo. 945, 124 S. W. (2d) 1072; Winschel v. Stix, Baer & Fuller Dry Goods Co., Mo. App., 77 S. W. (2d) 488. The proceeding under Section 3733 supra is not a part of the proceeding for the establishment of claimant’s rights, but is merely a method adopted for the enforcement of such awards, ■in lieu of machinery of enforcement which might have been provided for and given the Commission itself. Claimant’s substantive rights’ *1199 having been’ established by the final award of- the Commission, the applicable statute of limitations began to run from the date the employer or insurer refused to comply with the award.

Section 3727, Laws of Missouri, 1941, provides for a limitation on the filing of claims before the Commission. It then provides:

“In' all other respects such limitations shall be governed by the law of civil actions other than for the recovery of real property . . , ”

Liability under the Compensation Act is contractual in its nature, and an award of compensation is an obligation ■ in writing to pay money. We therefore believe that it was the intent of the General Assembly that the ten-year statute of limitations, Séction 1013 Revised Statute Missouri 1939, Mo. R. S. A. Sec. 1013, should apply to awards under the Act. In this case appellant failed to' seek enforcement of the award within ten years after payments became due.

The trial court, therefore, properly sustained the motion to dismiss of respondent Waekman Welded Ware Company.

The judgment appealed from is affirmed.

McCnllen, P. J. and Hughes, J., concur.

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