*1 En Schrabauer, (Claimant), Respondent, v. Schneider Anton graving and United Appellant, Inc., (Employer), Product, Fidelity Guaranty Company (Insurer), Defenda States & (2d) 529. nt.* 25 S. W. Appeals. Opinion filed March 1930.
St. Court of Louis *2 2; 1, p. 1059, Fraud, 26CJ, n. Juris-Cyc. section *Corpus References: 51, p. 732, Actions, 37CJ, n. 17; section 1071, 14, p. Limitations n. section 984, 5; 368, p. 8; Com n. Workmen’s 153, p. section 40; n. section 115, p. 45; 47. —CJ, 103, p. n. Acts, section n. pensation George McNulty Garter, Turney appellant. (cid:127)& Jones A. *3 Dovglas H. respondent. Jones for
BENNICK, proceeding Workmen’s Com C. This is a under the August pensation Act, growing an accident which occurred on out of Engraving Product, of plant employer, Schneider the the wrench, when a city Louis, of St. Inc., Broadway, at South in the hand weighing three pounds, slipped the claimant’s or four out metacarpal bone fracturing the upon foot, fell down his left and of the second toe. in his stinging foot felt sensation
The claimant that he testified thinking “hopped little,” time, around but at the he nothing about the seriously any said one hurt, he was he not later, Some weeks accident, with his work. two and continued on swelling ap- foot, and however, pain in his commenced he whereupon, region struck, peared the wrench had in the where to Albert knowing nothing reported the matter compensation, he claimant had Snider, foreman, position who took his suffering he shop, but that instead was been hurt not a rheuma- treatment for In fact received rheumatism. the claimant family was physician, his tic condition at hands following he learned of part of November that until latter Peden, Dr. who when called fracture, he existence injured region. X-ray picture an took reported the accident February 8, 1928, On February claim commission, 10th the formal for com and on insurer, employer, and its pensation Thereafter was filed. answer, Fidelitjr Guaranty Company, & their filed United States injury arising accident out claimant’s ivas denying that claim had employment, and that his of and in the course of his provided limitation filed within the six-months by the act. finding hearing,
After commission made .a em- liability fully insurer, ployer’s compensation was covered by injury arising was accident out and that the claimant employment, thereupon of and in the course his an entered $132 for aid, $35 claimant for medical award in favor of the disability, partial aggregate $167. sum permanent for perfected appeal An was thereafter to the circuit court entry insurer, judg of a employer and resulted d affirming the awar of the commission with costs to the ment Following this, a motion for a new trial filed employer. duly exception defendant,” an saved to the “the order *5 court, it, employer prayed overruling after which the alone appeal court. and was allowed an this
309 passing, why appeal it no was said that the reason by insurer, primarily directly taken is liable who the one Act, to the claimant 27 1927, p. under Section Laws appear. does not gather throughout
We from the that briefs course of proceeding controversy parties the chief between the has centered Act, requiring around Section the effect be ascribed to days knowledge an accident employer, within ten notify resulting personal employee, com- injury to an proceedings thereof; provides which no to Section that mission for compensation be maintained unless written notice of shall time, injury, name address place, and nature of the and the prac- person injured, employer is as soon as given to the thirty happening thereof, but not later than ticable after the days accident, there after the unless the commission shall find that good give notice, cause for em- failure to that the same; and by to receive the ployer prejudiced was not failure compensation proceedings for provides Section that no com- is filed with the shall be unless claim therefor maintained all injury, save other after the that mission within six months by respects governed the law of civil actions shall be the limitation recovery property. than real other for the testimony that no appear from the
In this instance it would employee, given al- written notice was ever thirty within less than foreman though given notice was to the oral given the commission repeat was not days; we that notice employee’s claim February 8, 1928, that the employer until February 10, 1928, which until commission filed with the was not date of the accident. days after the was six months seven properly a statute argues 39 is not Section Appellant remedy, but that limitation limitation, is, mere precedent to the exercise of a condition compliance with same statute imposed which condition right, newly created is a compliance with the statute right; and that gives the commission has while the to the extent that matter jurisdictional t whether Sec facts before i determine jurisdiction to question it decides complied with, once tion points in the other con As to jurisdiction ends. its negative, report failure to the ac argues own its appellant troversy, estop required by Section did not commission, as cident to the complied employee, with urge Section giv comply Section as to the failure latter’s precluded and that subsequent pro maintenance of him from ing notice claim. ceedings his to enforce *6 hand, the that argues, on the other for the claimant Counsel of accident given notice the have a written
failure of his client to defense; that pleaded employer because not was waived the accident, the so beyond this, actual notice of the had a useless have written would giving that of a notice the give notice employer’s failure to formality; by reason of that the 34, required Section days, ten to the commission within prevented commission which the guilty wrongful was of act time, un- as it would claim was filed in seeing from to it that the discharge of duties under Section doubtedly have its done parties agree- forms certain of requiring it forward the thereby estopped urge compensation, and it is ment for that finally, and the 39; Section claim is barred under the within six actually time, in since it was claim was filed filed though six injury ascertained, within after the not months months after the accident. requires will Section 39 this connection it be observed that injury, months the as dis
the claim to be within six after filed injury accident; argues the and counsel the tinguished delayed, accident, if is result and that the result of injury running delayed, period for beginning and the counsel delayed. Upon premise, of the limitation is likewise commis for claimant our attention to the fact that the calls upon dis permanent partial sion its basis of made award in ability; he accident not have resulted insists could permanent partial disability an ascertainable within the first seven days consequence rendering thereafter so as to have had of days filing untimely the claim within six months seven accident.
Incidentally judge seems have a similar learned trial taken case, view which filed at as shown a memorandum he rendering decision, although his the time of the own of his he based largely language conclusion Revised compensation concededly part of the Statutes which is made a express provides which act terms of Section “the shall not be when the cause of action deemed accrue wrong duty is done or the technical breach contract damage therefrom occurs, resulting but when the is sustained capable and is of ascertainment.” questions appeal,
In passing on the several raised on this all way proposition in having do or another with the basic one complied with, sections and Were of whether it would first necessary injury when the seem to determine so as received limitation, since, running to start as we out, “injury” pointed terms are heretofore and “accident” not synonymous, and it is within six months after injury, within six months after the accident, that proceedings compensation be brought. must We are aware that the courts of our several sister states are not full accord holdings their upon this question, possible indeed we doubt if it is lay any general down rule every which would fit might case which arise, ways injuries because of countless *7 manifest themselves.
The argument allowance of the of for counsel in claimant this begin case—that the limitation run did not to until after was possible permanent partial determine that there be a would disability require Legislature us to hold that the used the —would “injury” “disability,” in which term section 39 sense of Disability clearly to draw. proper we think is not a conclusion consequence possible usual, although necessary, most a is a and not Legislature injury, recognized of and the so fact in secton the following immediately in and to be construed and those sections payment com- that, apart from the of such it, providing with pensation warrant, disability might the particular as a necessary might be “to care as provide such medical should also injury.” from the effects the cure and relieve largely the however, set matter Beyond Legislature has this, the “injury” term as expressly defined the having itself at rest that, the term act, where, in it said throughout the used body the “only physical the structure of violence to should mean naturally Ob- results therefrom.” or infection as and such disease in their were there used viously and “infection” the words “disease” disability, as in sense would ordinary sense, the and usual and claimant for of counsel if contention be case the have to the Legis- employed in the prior language disproved be is not to own definition. lature’s easily might accident such an readily imagine that canWe condition, showing progressive and a latent produce occur as later cul- time, which would but appreciable ill effects at no undoubtedly for the injury. It was compensable in minate a a situation rights under such employee’s protecting purpose of limitation make the sawt fit to in wisdom Legislature its that of the from the date injury, and not date of the from the run injury us. Here the ease before such we no Btut accident. toe, second and it metacarpel bone of of the fracture was a foot. wrench impact of the immediately followed known, then injury were not consequences of all the Though disability resulting of the character extent the full in that injury com- determined, itself was not then could therefrom body, physical structure to the done a violence plete as any at that time at other. ascertainment capable of date instance particular this is that conclusion Thus our accident, of the date contemporaneous injury was that run began limitation six-months that take view reasonable is the think we only do Not time. general conforms incidentally it situation, but jule is that which injuries, personal claims governing actions the time at begins run and the statute accrues of action cause extent notwithstanding full not until time— injury —but defendant’s developed, or known injury not then long previous time injury occurred caused the negligence which with Furthermore, is not cases C. J. cited.] thereto.” [37 within bring ourselves holding we also significance out so its courts own consistently our and followed announced the rule actions, determining commencement the time for the has of action cause begins run when the a statute limitation being whenever it, accrual person asserting accrued to the sustained, wrong has been duty occurred, a breach of or such rel. ex right a suit. give bring as will and sustain [State then to Buchanan, 176 Boyd App. 75; v. Logan, 195 Mo. 190 S. W. *8 176; Clay v. App. 56, 1075; Clay, App. 162 9 Mo. W. Eoff S. v. Mo. (Mo. (2d) App.), 6 Walker S. W. 961.] brings squarely therefore, This us question, of whether to the claim earnestly barred, appellant this case was counsel for so contend, concededly since was seven not filed until six months and days injury. after the
We argument think the way is all 39 one that Section a is not statute of limitation in the mean that it is word, usual sense we which anot upon may limitation remedy, may which urged not be by the opposing party, but that is rather it a limitation upon right itself, by which very right extinguished is if not exercised before of the limitation against run it. It kept must be in mind a that wide distinction exists between stat- utes providing a for upon limitation the remedy, special and statu- tory limitations qualification enacted in given right. ordinary a The statute of limitation confers a privilege defendant the of inter- posing a definite limitation of time as a bar to the enforcement of a liability existing independently of the statute which defines the limita- tion. Such statutes, therefore, are merely limitations upon the rem- edy ; but the second class of statutes are more, they right a create of action conditioned upon its enforcement within prescribed period, the theory being that the lawmaking body which has the power to create the right may affix the conditions under which is to be en- forced, so that a compliance with those conditions is essential. In other words, where time is made the essence right created, limitation is an part inherent of the statute out of which particu- right ar arises, so that there right is no of action whatsoever inde-
313
operates
lapse
statutory period
limitation,
and a
pendent of
right
J.
extinguish
altogether.
C.
[37
686.]
cumula
act is
already
compensation
It
decided that the
stands
wholly
law, but
supplemental of the common
instead
tive to or
remedy created
right
character,
new
and
that the
substitutional
and
were
entirely
right
remedy which
are
and
the act
exclusive
App.),
(Mo.
[Kemper Gluck
at
law.
v.
otherwise available
common
(2d)
applicable,
particularly
21 W.
S.
rule becomes
922.] Hence the
given
not exist
right
“where
statute a
of action is
did
that
by
right
law,
giving
time
fixes the
common
statute
right
within which
enforced,
fixed becomes
the time so
control, no
right,
will
matter
limitation or condition on such
Consequently
brought.”
what forum the
C. J.
action is
[37
732.]
length
land, in con
throughout
the courts
breadth
held,
hold,
struing
import,
as we must
local statutes of similar
making
period fixed
compensation
of a claim for
within the
mandatory,
jurisdictional
prece
act is
condition
right
Guarantee
proceedings.
dent to the
to maintain such
[London
405;
Pac.
Commission,
252,
& Accident Co.
83
263
v. Industrial
Colo.
770, 120
Holcomb,
510;
v.
98
Atl.
States
Simmons
Conn.
United
851;
Smith,
130,
City
Co. v.
162
133 S.
Rochelle
Casualty
Ga.
E.
Commission,
Chicago
386,
789;
v.
332
163 N. E.
Cir
Industrial
Ill.
163
E.
Commission,
v.
332 Ill.
N.
156,
cular Adv. Service
Industrial
408;
Commission,
Foundry
v.
335
American Car
Co.
Industrial
&
80;
Ky.
167 N.
247
322,
Exchange,
29,
Ill.
E.
v. Auto
198
Wilburn
1109;
180;
W.
Case,
S.
Garbouska’s
124
130
Dochoff
404,
Me.
Atl.
v.
212
Co.,
Globe
180
166,
414;
Construction
Mich.
W.N.
Schild v.
Marquette
Pere
R. Co.,
1018; Lipmanowich
Mich.
166 N.
200
W.
Co.,
47;
v. Crookston
210 N. W.
O
Lumber
Minn.
’Esau v.
E. W.
Co.,
App.
203;
Bliss
Div.
177 N. Y. S.
McClenahan
Ry.
v. Oklahoma
Co., 131
657;
Okla.
Pac.
Menna Mathew
I.),
(R.
son
907;
Casualty
Atl.
Maryland
v.Co.
Industrial Com
*9
(Utah),
mission
The statutes thus referred to are to be found in Articles IX and IXa, 1315-1345, sections being Revised 1919, Statutes general the effect of such personal The applicable
limitations to actions. conceded civil actions on adopt provisions was all of of the law reference to the if much a section as regard, part in that and to of make them as adoption and express written out in full therein. Moreover such given effect necessary general be reference if the statutes were to was compensation 39, in of section cases, saving the clause for without sec general inapplicable, inasmuch as would the statutes have been limita 1336, on provides tion Statutes the article 1919, Revised that personal tions which or any to action actions shall extend to not shall statute, action any but such shall be otherwise limited that v. Kansas brought statute. be the time limited such [Clark within L. & 118 S. City, Co., St. C. R. Mo. W. 40.] running With it six-months determined, therefore, that operation period through of postponed proper be on facts saving brought of clause to a consideration of section we are instance claimant, particular contention of for counsel through pro- running stayed of limitation general visions of one of Revised Statutes such adopted compensation pursuant statutes as part act saving by abscond- provides any person, “if clause. This statute any prevent ing act, concealing himself, improper or or other action, within commencement of an action shall commenced limited, time action shall herein of such the commencement concededly prevented.” have ceased no ab- to be so Here there was sconding neglect concealing by appellant, but the latter did notify required by section 34 of the commission of the accident argues Act, improper for act with- which counsel claimant was an purview in the of section 1334."improper ” Necessarily expression , used it is in the stat act ute, term, incapable is a variable definition. Indefinite exact is, however, appear that could as the term it would not well have seriously impairing been made more definite without the beneficent obviously statute, operation Legislature, enact same, expected ment of the could not have foresee and antici every pate wrongful sort of manner and some future conduct guilty. would be defendant appreciate designed compel
We that section wrongdoer party wronged advise the cause action he might successfully protect against assert, him which he nor to plain- necessary bring ignorant who are of the facts enable them to tiffs ignorance improper suits, unless is occasioned some conduct words, part negative on the the defendant. other from the con- frequently found books, clusions which are to be most stated improper positive drawn act referred rule is *10 prevent must a fraud will statute in nature of be one 167 S. Carp, 686, of the action. 258 Mo. commencement [Davis W. 1042.] may Now fraud manifest itself in ways. devious comprises It all omissions,
acts, involving legal and concealments a breach of or equi- duty, resulting damage in table to another. It be either passive; active or and while it is ordinarily true that a distinction is yet drawn mere and active concealment, to be between silence mere be silence alone will be held to a fraud where the circumstances are impose duty upon speak, deliberately to and he re- one such as to J. silent. C. mains 1071.] [26 determining guilty instance, appellant in whether in this So contemplation failing improper within of section act of an required by of the section we the commission accident notify to compensation sight purpose lose of the fundamental must not designed knowledge afford. It is common to act, the relief it dispense with the services of the members was to the intention possible, extent and to profession to the fullest make own our employee easy and injured an certain means of ob- to available Legislature passage act, in taining compensation; and large percentage fully the fact that appreciative of have been must ig- coming provisions only within its would be not workmen of the rights thereunder, many but in handi- their instances so of by norant unacquaintanee language byor with our lack education capped securing matter helpless in the relief. be as to give the commission employer prompt notice to requiring Legislature undoubtedly his in- coming notice, of an accident very In fact it was so insistent this evil. to counteract tended him that it having employer give notice to commission made duty comply if he in that failed guilty of a misdemeanor his duty receipt commission, upon It made it regard. further blanks, employer employer, to send both to from the of notice dispute arising of a and in the case between the employee, and to the filing claim, employee assist the his as to merits two early securing adjudication an thereof. claim, and wiped 36, inclusive, are not out of If sections the act beneficial effect practical purposes, destroyed, their then for all give the failure notice hold to the must we improper is such an required by section act as commission running of However, toll the the statute. 1334 to under tolling aby it is in mind in connection be borne must rights any saved, applica- are and not claimant’s statute that the estoppel, as counsel here contend, of waiver or the doctrine tion of jurisdictional, statutory provision as is section particular where play. estoppel no waiver and injury had notice of within two appellant weeks case, in this So days comply It had ten thereafter which to it was received. *11 316 duty notifying
with its turn give did not commission. It notice, such however, February 8, 1928, until and the claim was filed Consequently with the commission on the day second thereafter. we conclude by appellant the breach of the affirmative action required by of it a section same act on which now relies to claim, running stayed defeat the of limitation ivas gave from the time it became in default until time notice to commission, right under which view the matter the was claimant’s extinguished, timely not claim his was filed. v. [Sonnenfeld Co., 241 145 Millinery 309, 430; Rosenthal-Sloan Mo. S. W. Edwards (Mo. App.), Rich 415, v. 180 S. W. 418; Parry, Hoffman v. 23 Mo. App. 20.] brings question
This us then to the of whether the claim barred was writing given appellant because notice in was not to the elaimanl thirty days accident, required by within after 38 section the Act. jurisdictional, As case of this section section is also and, stringent but its terms are not so former, exceptions as in the fully pronounced. to it Legislature are more In fact the worded the condition of section in alternative, namely, written notice given, should be unless the commission should find ivas there good cause give notice, for failure to employer or that the prejudiced by failure to receive the same. Thus, 38 presupposes while section employer notice to the writing, purpose its all evident after is to insure that he ac receives tual notice of the accident for which he be called pay to compensation; if "prejudiced” by he is failure to have received such notice, it must he that reason thereof he has been rendered less able to resist the claim. Finer & 218 v. Bachrach, [Itzkowitz 440, 218 App. Div. Y. S. N. 272.]
If proves giving the claimant timely adequate written notice, question compliance his with 38 section is at an end. Failing in this, the undoubtedly upon burden is him in the in first stance show prejudiced ivas not failure to have received such written notice. The particular, Oklahoma courts in construing a statute of own, that state much like our an have nounced rule being eminently which strikes sound, us as which is employee proof when makes notice, of actual he makes a showing prima-facie prejudice of want of employer, to his whereupon the burden prove shifts to the latter spite that in of such actual notice, prejudiced he still been the failure to have received a written & notice. Gas Electric Co. v. Thomas, 115 [Oklahoma Okla. 67, 241 820; Pac. Corporation Graver v. State Industrial Commis 114 sion, 438; Okla. 244 Pac. Ford Motor Co. v. 128 Ford, Okla. 221, 262 201; Fidelity Casualty Pac. Union Co. v. State Industrial Commission, 130 Okla. 131; Pac. Industrial Track Construc tion Co. Colthrop, Okla. Pac. 263.] enough to ease, though we not bold no are know of we Moreover notice contrary, holds that may be found none say that given sufficient, employee’s if failure to foreman is not be excused. notice is otherwise written foreman within two weeks given case, notice was appellant and its insurer accident, when the answer of any noncompliance made about no contention filed, there was true, However, undoubtedly as has heretofore 38. it is jurisdictional appellant to have raised the failure of expressed, that *12 court, in the circuit does not the or commission point, either before asserting point on the preclude a it as so to operate waiver as Board, 276 Ill. 114 N. E. Industrial appeal. this [Bushnell Foundry Commission,supra.] & Co. v. Industrial 496; American Car been made within months compensation has six claim for Whether a right precedent a to the to maintain injury the condition adequate timely and notice of the accident proceedings, whether and any questions fact be determined like given, constitute of has been Commission, [City of Rochell v. Industrial questions. other similar 309 Commission, Ill. supra; Rubber Co. v. Industrial Inland E.N. 26.] particular that instance commissionmade
The trouble is in upon question, one which express finding pleaded either of no though proceedings, of asserted as a bar to the maintenance and legal fiction, provisions In sections the other was not. since the of mandatory, jurisdictional and and conditions 38 and are constitute precedent right compensation proceed- claimant’s maintain finding express by every be an in ings, there should commission complied requirement This that sections have with. case both observed, if we our to have and were to stand commission seems never lawr, appear of it would that a upon the technical letter reversal every in in thus far have been order case come before would ns. general appreciate
We the fact that commission is not court of jurisdiction, solely purely but an or common-law is and administra- tribunal, specifically act, created tive to administer the one and that authority possesses only it powers as such have been upon implica- express grant, conferred it or as arise therefrom being necessary tion as and incidental full exercise of the granted. powers Theoretically follows, therefore, expressly performance prerequi- full conditions act is an essential jurisdiction, to the limita- statutory site commission’s jurisdiction enlarged, tions the exercise of its cannot be dimin- ished, destroyed consent, or express estoppel or waived acts of However, get away we cannot from the purpose fundamental act, wished; though Legislature if we specif even had give ieally construction, directed us to the act a liberal we would have determining pro- Consequently, in anyway. to do so felt bound thought case, we must in instant of the award made priety be the act to required Legislature has manner in which the to the administered. significant requires only act It is that the itself one of the three lawyer (section 56), members the commission be and that any empowered one provides in section member shall be also parties summary proceeding issue, to hear the in a at and to deter- However, Legislature dispute. the full intent mine the avoidance of technicalities reference in the administration perhaps succinctly expressed in the law is most where it provided proceedings all directly is before the or commission any simple, informal, summary, commissioner shall be and that irregularity no defect therein shall invalidate same. positive legislative expressed throughout In the intent thus act, purpose view, a definite in there must have been we think undoubtedly was that the administration law, procedural subsidiary enforcing are treated as matters to be the substantive rights prima-facie parties, presumption that a jurisdiction indulged favor of commission’s in a case otherwise coming words, within the if act. other no contention made *13 noncompliance irregularity with sections arising expressly the commission’s failure to have found sections complied had been with should serve to invalidate the award statutory irregularities viewed; under the mandate to how are to be present, nor in a case employer’s like the where the failure to have with domplied undenied, stands a consequent post- running ponement of limitation, should award be re- versed the cause remanded for only the commission to make the finding possible of fact on the record before it. [Broniszewski Co., & O. R. Baltimore Md. Atl. 345.]
Consequently we conclude that the award made the commission proper against the attacks now upon it, made judgment affirming of the circuit court it should in turn be affirmed by this court. The Commissioner so recommends. foregoing opinion Bbnnick, C., CURIAM:—The adopted PER judgment is, court. The opinion of the circuit court as the accordingly, Haid, J., Nipper, P. and Becker JJ., affirmed. con cur.