Graves v. O. F. Elliott, Inc.

This case came to the writer by reassignment. It is a claim of an employee under the Workmen's Compensation Act. The report of the accident was dated September 14, 1942, and stated that the accident happened in Joplin, Missouri. The claim for compensation was dated December 19, 1942, and stated that the place of the accident was "3317 Pearl, Joplin, Missouri." An answer to the claim for compensation was filed December 19, 1942, by the employer and insurer and this answer stated that the place of the accident was Joplin, Missouri. A notice of hearing was sent out by the Workmen's Compensation Commission setting the hearing for 3:30 P.M. February 10, 1943, at the "court house in Joplin, Missouri." The hearing was had before the Honorable Francis E. Kinder, Referee of the Workmen's Compensation Commission on the 10th day of February, 1943, in the court house, at Joplin, Jasper County, Missouri, all parties being present and participating. The record shows that the employee, Fred Arthur Graves, was sworn and in his testimony it developed, for the first time, that the alleged accident occurred in Newton County although at a place within the city limits of Joplin, Missouri. It was then stipulated by the parties, the employee, the employer and the insurance company, that since it had developed by the evidence that the employee claimed that the accident happened in Newton County, that the parties then agreed that they proceed with the hearing "before the Referee in the City of Joplin, Jasper County, Missouri as fully and completely as though the cause were duly set for hearing in Newton County, Missouri and that neither party will make any objection or take any exception to any act or thing done in this claim because of the fact that the hearing was had in the City of Joplin, Jasper County, Missouri, and notice of the hearing was issued by the Missouri Workmen's Compensation Commission to be held in the City of Joplin, Jasper County, Missouri rather than in Newton County, Missouri."

This stipulation appears in the record. The parties then proceeded with the hearing. On the 27th day of September, 1943, the Referee made his findings on the hearing and found that the disability complained of was not the result of an accident arising out of and in the course of the employment and compensation was denied. An application for review was filed on September 29, 1943 and on November 5, 1943 the whole Commission affirmed the findings and order of the Referee dated September 27, 1943. On November 8, 1943, three days later, the employee, by attorney, gave notice of appeal on a printed form furnished by the Commission but in filling out the blank spaces, inserted the word "Jasper" instead of "Newton." The Workmen's Compensation Commission, upon receipt of this notice, certified all the documents and papers on file in the matter, together with a transcript of the evidence, the findings and award, to the circuit court, of Jasper County. This was done on the 18th day of November, 1943. When the matter came up for hearing at the September, 1944, term of the circuit court at Joplin, it was then discovered from the transcript in the cause that the accident occurred in Newton County and that the Missouri Workmen's Compensation Commission had erroneously certified the transcript to the Jasper County circuit court which had no jurisdiction. It was then ordered that the cause be remanded to the Compensation Commission for further action. On the 17th day of November, 1944, the entire record was sent to the circuit court of Newton County over the following certificate:

"To the Circuit Court of Newton County, Neosho, Missouri:

"An appeal having been taken in the foregoing matter from the award, order or decision of the Missouri Workmen's Compensation Commission, by order of said Commission it is hereby certified that hereto attached are all the documents and papers on file in the matter, together with a transcript of the evidence, the findings and award, and the same are herewith returned to the Court as provided by law.

"IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Commission.

"Given at the City of Jefferson, State of Missouri, this 17th day of November, 1944.

Helen Ross (Seal) Assistant Secretary of said Commission."

The employer and the insurance company later filed a motion in the circuit court of Newton County to dismiss the cause for the reason that the appeal "was not taken within the time required by statute." The court heard the motion and sustained it on the 21st day of February, 1945, and on the same day the employee filed an affidavit of appeal and also a notice of appeal and the case is here for review.

The only questions here are (1) did the circuit court of Newton County commit error in dismissing the appeal and (2) is the order dismissing the appeal of such finality that it can be appealed from?

Section 3732, Revised Statutes Missouri 1939, states that an appeal from the final award of the Commission shall be conclusive and binding unless either party to the dispute shall within thirty days from the date of the final award appeal to the circuit court of the county in which the accident occurred. If the statute ended there it might be questionable as to whether the proper notice of appeal had been given in time but the statute further on goes into some detail as to what shall be done to appeal and who shall do it. It states further:

"Such appeal may be taken by filing notice of appeal with the commission, whereupon the commission shall under its certificate return to the court all documents and papers on file in the matter, together with a transcript of the evidence, the findings and award, which shall thereupon become the record of the cause."

It will therefore be seen that the duty of the appellant is to file the notice of appeal with the Commission, whereupon the duty shifts and it becomes the duty of the Commission under its Certificate to return to the circuit court of the county, in which the accident happened, all documents and papers on file in the matter together with a transcript of the evidence, the findings and award. This makes up the record in the case and is a ministerial duty placed upon the Commission which may be compelled by mandamus. [State ex rel. Missouri Gravel Co. v. Missouri Workmen's Compensation Commission, 113 S.W.2d 1034,234 Mo. App. 232.]

When a notice of appeal is filed the Commission has no discretion in the matter and makes no order granting the appeal. The filing of the notice merely makes it mandatory upon the Commission to certify the record to the circuit court of the county in which the accident happened. The law, and not the notice, fixes the venue of the appeal.

That the accident happened in Newton County was known to Referee Kinder, was known to each member of the Commission when they affirmed the findings of Referee Kinder and the Commission "erroneously" certified it to Jasper County as was found by the circuit court of that county when the case came up for hearing.

Section 3754 of the Workmen's Compensation Act (R.S. Mo. 1939) is as follows:

"All of the provisions of this chapter shall be liberally construed with a view to the public welfare and a substantial compliance therewith shall be sufficient to give effect to rules, regulations, requirements, awards, orders or decisions of the commission, and they shall not be declared inoperative, illegal or void for any omission of a technical nature in respect thereto."

Numerous decisions of the appellate courts have held that the Workmen's Compensation Law should be liberally construed in favor of the employee. [Dauster v. Star Mfg. Co. (Mo. App.), 145 S.W.2d 499; Morehead v. Grigsby, 132 S.W.2d 237,234 Mo. App. 426; Caldwell v. Melbourne Hotel Co. (Mo. App.), 116 S.W.2d 232; Baird v. Gleaner Harvester Corp. (Mo. App.), 172 S.W.2d 892; Allen v. Raftery, 174 S.W.2d 345, 237 Mo. App. 542; Daugherty v. City of Monett (Mo. App.), 192 S.W.2d 51.]

It is true that the attorney for the employee inserted the name "Jasper" instead of "Newton" in the printed notice of appeal furnished by the Commission, but it was still a notice of appeal given within three days of the decision of the whole Commission. We believe that, although the notice was defective, it was still a notice under a liberal construction of the act. The employee should not be penalized for the failure of the Commission to send the record in the case to the proper court when all the necessary information was in the very record they were certifying. It is our opinion that the circuit court committed error in dismissing the appeal on the ground that no timely notice of appeal was given as required by statute.

It is urged by respondent that the judgment of dismissal is not final and therefore an appeal will not lie therefrom. We can conceive of no judgment with more finality. It disposes of the case forever upon the docket of the circuit court of Newton County unless appealed from and it makes final the Commission's affirmance of the findings of the Referee. Section 3732 says that the award of the Commission shall be conclusive and binding unless appealed from. The dismissal of the appeal by the circuit court is tantamount to a holding that the award of the Commission was not appealed from. We hold it was a final judgment so far as the right to appeal therefrom was concerned. Being of the opinion that the circuit court committed error in sustaining the motion to dismiss, it is ordered that the case be reversed and remanded to the circuit court of Newton County for further proceedings in conformity with this opinion.

Fulbright, P.J., concurs; Blair, J., dissents in separate opinion. (No. 6579)