*1 appeal judg- before us is from that order not from a final 274 Mo. 195 W. Cowen, 398, 410-14, Scott v. judgment on proper showing held that final on ordered appeal equity such in an decision case, we are aware holding appears at It from be done in action law. plaintiff the record in this case that tendered evidence of waiver surety company very provisions defendant of the bond under non-liability. properly now asserts This is jury plaintiff’s proof to submit same at a new trial should not be foreclosed at this time. sustaining
For the reasons above the motion for stated a new trial affirmed the cause remanded. All Company Mayme United Pharmacal States Curtin v. Zerbst Fidelity Guaranty Company, Appellants. & One, August 3, 1933. <&Phillip appellants. Culver
MyUon, & respondent. Parkinson Norris for in- by respondent’s HYDE, C. This is an Buchanan judgment the Circuit from the surer sustaining an award of the for tem- forty-six weeks allowing respondent per $10.67 week for porary $676.53 for total say: made, appellants here ment. As to the contentions questions propriety of the award appellant “Neither re- disability. complainant is with weeks for per week for pre- *2 aid, the spect of for medical to the award questions: three sents “ liability $250? (1) employer’s limited to Is the amount of the “ $676.53, insurer (2) though employer for is the Even the is liable $250? for liable more than invading the
“(3) without permitted Can be to stand the award appellant?” constitutional of either by
Respondent paid was the commission’s allowed treat- fifty hospital medical and two hundred and dollars for than was injury paid also first after her ment for the by after amount such treatment allowed the award an additional for made time, special order therefor ever that of law of the commission by the commission. The conclusions against employer the it c-oulclmake these allowances both that to employer were shown which amounted a the insurer acts the of requirements it found limitations of the statute and waiver the of first of the statute there was such waiver. The subsection here, R. as (See. 1929), applicable the one is follows: “(a) employee shall compensation, all other the addition to medical, surgical employer provide the shall receive and medicines, including nursing, as hospital ambulance and injury required days after may reasonably sixty be the the first for disability, injury, the of the or to cure and relieve from effects exceeding dollars, and in amount the sum two hundred and of year from within one thereafter such additional similar treatment injury by special de- date of as the commission order the the necessary. desires, employee termine to he shall have be require- surgeon, physician, his own or other such to select requirements expense. at his Where such are furnished ment own institution, payment therefore shall be public hospital or other proper made to the authorities.” passing to
We section has been amended note hospital liberal allowances medical and provide for more for Evidently page experience showed [Laws inadequate of original proper to often care allowances be too for injured employees. give appellants us involved does involved
contend there is jurisdiction. up declaration This contention set appellants of No. asked and trial court refused law give, as follows: liability limit of the
“The court declares the law be that the of insurance for policy of under its and contract the insurer required by given employee for aid and/or days sixty injury without a $250 first after her or shall determining the Commission that similar treatment of employer provided by period; for and Section authorizing Missouri, Revised Statutes liability or as the insurer without waive such limitation to bind knowledge V Us or consent violative Amendment the Constitu- of of Article XIV Section tion United States of it de- Amendments to the United States Constitution of prives the insurer its without due argument Appellants’ concerning this matter is as follows: position is,
“Our entitled expended recover the amount and medical treat- in excess it is $250,, ment reason fact that she is entitled expenses incurred be reimbursed her as express is, by obligation reason of an or by contract —that *3 statute, statute; a waiver of the created and that Section n Missouri, 1929, Statutes Revised authorizes the Com- (not an to make such contract mission one . . statute), judicial . the section powers created upon confers Commission, and the award is the the exercise judicial powers by trae, it. that be then the act uncon- stitutional. right any has “If the to have the insurer reimburse moneys expended for medical, hospital treatment, statute, provided she must resort to the courts Compensation the Workmen’s for redress. And if the statute authorizes Commission to grant relief, only by can be done which judicial exercise of the 1 power, it violative of Section of Article XIY of the Amendments Constitution, because, to the Federal to allow a tribunal without adjudicate authority person, of a deprive right person heard to be before a tribunal decide, authorized to right deprivation deprives person and the his (All ours.) italics says Respondent that this contention does not con raise a question gives court stitutional respond right. Appellants’ only ent is contention amounts to a claim that does not authorize did, statute the commission do what namely: Allow than two hundred dollars for “medi cal, surgical including nursing, ambulance and medicines” for the first allow thereafter provided, treatment without such treatment necessary first found order of the commis contend, short, appellants sion. not that the statute is uncon stitutional, but that the commission the Circuit Court of Buch wrong anan it. their construction of court This
349 many has times held that a contention that a certain construction of accepted by statute a court would result 'in a rule which would violate a provision provided the .statute had so involve "the construction of the Constitution the United States .or of this State” within meaning of Section 12 of Article VI of our Constitution, necessary juris diction; but only challenge of unconstitutionality of á stat ute which does question involve is the claim that the statute is inherently totally invalid event. v. Lincoln [Corbett Savings & Loan Assn. 4 (Mo.), W. (2d) 824; S. Purchasing Service Co. v. (Mo. Brennan 32 Sup.), (2d) S. W. 81; K. Nickell v. C., St. L. Co., & C. Railroad 326 Mo. 32 W. (2d) 79; Wheat v. City Platte Special Benefit Dist., Road Mo. (2d) S. W. 856; Woodling v. Westport Hotel Operating Co., 331 Mo. (2d) 477; State ex rel. Walker v. Locust Drainage Creek Dist. (Mo.), (2d) 452; S. W. Drainage Chilton v. Dist. No. 8 of Pemiscot Co., 332 Mo. Even though might we' think the commission and the circuit court erroneously, decided authority of the commission under the statute, we have no presume that the Kansas City Appeals would not correctly, decide it and since it is the tribunal directed the Con stitution to question, decide that authority have no to determine it. is, therefore, The cause to the Kansas City Court of transferred Appeals. Ferguson Sturgis, GG., adopted C., is by Hydé, The.foregoing opinion
PER CURIAM: judges concur. court. opinion of the All as the *4 Margerette Henderson al., Appellants, v. et al. et Alva Fletcher 849. August One,