*1 Lumber Com Appellant, Employee, v. Schutte Martensen, C. E. Employers’ Mutua Employer, Corporation, pany, l Liability Re Insurer, Corporation, Insurance spondents. (2d) 312. 162 W. S. May 25, Appeals. City 1942. Kansas Court Rope appellant. Leo A. I. Frank Spalding and *2 Leo respondent. T. Schwarts for A. Duckworth of

T. counsel. *3 judgment a of

BOYER, appeal from the circuit C.—This is an Compensation the Com- reversing a final award of Workmen’s court against respondents. court appellant of The in favor mission its powers without acted or excess that the Commission found Company against the Lumber final award making the against, re- insurer; did not file his claim and its law;-that by there was no evidence provided the time spondents within the claim not finding that amended was Commission’s support to the amendment was im- Limitations; by barred the Statute a new claim not filed amendment that it was not an proper; jurisdiction. lacked time, and the Commission appeal points on are that of error and the briefed assignments The 1. The claim court erred because: by law. The tolled 2. statute was provided time was filed within statutory employee to within attention of medical rendition Compensation Commission finding of the Woi’kmen’s 3. The period. on the was conclusive circuit competent evidence and based was court. a before the appellant filed claim Work- record discloses The 25, against 1938, November Compensation Commission men’s the insurer was said to be employer. name of “un- The Schutte as 1938, as the accident at is shown date an 13, known.” June City, Missouri. The manner and extent Kansas 27th Street East hearing January The claim was set injury are described. of the City, at which Commission Kansas member of the a 1939, before request appellant, per- of counsel Commissioner, upon employers which shows the to claim an amended filing mitted corporation, and Schutte be Victor Company as insurer. Liability Counsel Insurance Mutual Employers’ Company company and the insurance made lor Sehutte Lumber objections filing against any or repeated company and its insurer because such claim was lumber barred Limitations. If the claim heard con- Statute charge requested. permitted Commissioner in tinuance was The proceeded upon take said the amended claim evidence filing of understanding company claim as amended with that the lumber evidence, desired, might adjourned if at an present an its insurer hearing. represented by personal counsel. Victor Sehutte was The represented company and its insurer were their counsel. company received a notice The insurance effect that against appeared filed name claim was Sehutte its explained him. It is how this An ad- insurer for occurred. January 31, journed hearing held and at the conclusion of employers of the the Commissioner found in favor all evidence employee compensation,, and insurer and and awarded no claim was and found that amended within six months Upon accident. review from the date of the of this award Commission, it reversed members of the full Commission was two dissenting. granted temporary the third member Claimant partial Company the Sehutte Lumber and its in- surer, and that the should be reset for provided it was further hearing. pay The lumber and the insurer were directed to hospital services furnished for medical and “not findings rulings fact and of law insurer.” contain statements employee that Martensen was an to the effect of Sehutte Lumber Com- 1938; major pany, employer, on June that on said date he sus- injury arising of and tained an accidental out in the course of *4 employee’s original that employment; claim was filed in time in 1929, accordance with Revised Statutes and that Section claim, Victor Sehutte and both Sehutte Lumber including amended corporation, January was not barred Company, a comply Limitations. The did not with the Statute of tem- on final September award. was award held porary There final award in 6, 1939. final award and corrected favor of claim- Company and ant and Sehutte its insurer were alleged employee granted entered, in which award was corrected temporary disability, per for 86 for total and in $13.08 week weeks company and were thereto the lumber its insurer ordered addition following language: in the pay hospital medical and bills to hereby pay for and are ordered insurer are liable to “Employer and $331, same Ralph Myers being Dr. sum of reasonable to direct employee rendered him to and necessary medical services value of Employer insurer. employer and and insurer said not furnished Hospital $376.50 to Research the sum of pay direct are also to ordered employee.” to not furnished them necessary hospital treatment for final and tbe cor- findings accompanying of fact tbe tbe accident show tbe date of as June instead rected award 13, 1938; employment tbe that claimant in tbe June was tbe tbe and in course of company; that accident arose out of tbe that tbe employment; that tbe time; filed in amended was barred

Schutte was Limitations, liability there on -the was no tbe Statute of findings, tbe an individual. In tbe under part of Victor Schutte as following Payable,” is the item.- Value “Compensation “21. caption necessary $707.50.” or insurer medical furnished aid occupation was that of maintenance that bis Appellant testified work; years that be bad man, general past maintenance doing Company; Schutte Lumber that bad done main- for tbe be worked yard outside, and Mr. in the and took bis orders from tenance work Schutte; years re-employed that be and was worked' about two accident; employed that Mr. him years prior four to Schutte about do; as what to that be took orders from gave him orders to and also agents yard yard tbe did about and work tbe foremen directed; that maintenance work on tbe outside when be also Meredith, agent for buildings from a Mr. who was various orders took which,be making repairs; to work be reported directed that was on every morning do; and was what that be tbe office told 13, 1938, building, at a at 1318 injured while East 27th June Street; open bad sent him there windows that Mr. Victor Schutte door; be procure that was directed to a ladder repair screen work; step- that obtained a for use in the he five-foot bouse standing building, tbe top on of it on tbe outside of ladder window, leg just left open a he broke bis endeavoring to when fell and Dr. Hospital; ankle; that he was sent to (cid:127)Research tbe about doctor; Myers him; that be not call that be treated did Ralph ninety hospital days hospital about and received bill from tbe tbe further that he had not paid any He testified been $376.50. previous that he compensation, had sustained a for .which paid. been compensation had no that he kept testified On cross-examination time book showing place the address each week each where he worked expended; that he did not the amount of know tbe owners buildings worked, which he did all tbe know Mr. Victor 1316-18 apartment Street, building.at owned East 27th injured; he worked place where there several before; pay he received from cashier times *5 he Company; keep that track would of the hours and and he worked Mr. would slips where make out for places sign them; slips cashier would him tbe that the have then pay and him. slips signature of such and his identified number Witness thereon. appellant’s part testified to time witnesses work the lum- Other working times he was out yard, that at other for Mr. and Schutte. ber Ralph Myers,testified appellant Dr. that he treated for injury; his by hospital authorities; in on that he was called the case that he why did know he was called doctor, instead some other previously appellant that he had another injury; treated for that appellant had remained his treatment under about three until weeks hearing. question following before first appear: and answer “Q. doctor, And are you the doctor for the Schutte Lumber Com- - right.” pany? A. That’s The doctor had rendered a and bill by anyone. paid not been The reasonable his value of services was $331. shown to be

Victor Schutte testified that president he was of the Schutte Lumber Company and of the Company; Investment that and he two company he, owned the lumber brothers his brothers and a sister owned the investment that company; he, the investment com- pány, brothers, sister, his and individually mother each many owned pieces of and residential he property; business that owned the build- ing No. 1316-18 Street, Bast 27th appellant where injured; they required were and. to have did have maintenance man to look after repairs upon buildings; employed all appellant said he who was under his direction and control as the maintenance man himself, company, the investment and the owners; other individual individually that appellant employed representing him properties; of all the that at appellant owners enough times did not have busy keep occasionally maintenance work him given employment yard; in the lumber that he devoted about of his 90% n buildings to maintenance and about in work 10% company; appellant buildings lumber did work on owned buildings company, individually on investment owned all family, the members of well work for his as some of men office; convenience, that as a matter of rental expense all parties kept accounts for interested were at the officeof the company; upon building by lumber when work was done charge appellant reported the amount therefor would office; paid would be for it appellant charged and the amount building; that at the end each owner week he would go appellant slips with and prepare over time book tickets form, printed giving building the number and location of the where work had been and the amount due for such done work. The slips signed appellant presented Mr. Schutte were O.K.’d when pay who would him cashier the amount during slips work, designating various shown services property served, slip of the which had been the owner on the large slips number of such charge the amount to' the owner. were signing admitted in evidence them. offered suit in appellant the Circuit Court of On October Schutte, County petition alleged arid in the Victor. Jackson *6 1090

that the defendant owned a certain Bast apartment building at 1318 June, 1938, 27th. City; day plain- Street in Kansas that on 13th the of building, tiff careless- for defendant at said and due to the negligence and injuries ness of which he defendant he received for duly $7500. demanded upon Summons issued and served and pending Sehutte the case was still the time of the before Compensation the Commission. injury 13,

It that plaintiff was admitted an on June had sustained 1938; major Company employer, the Sehutte Lumber was a liability in- compensation the insurance carried its original surance. filed to claim before Victor Sehutte had answer the the subject in which he that he to the Commission stated (cid:127) carry the law, nor compensation did he insurance a suit employee,was against Mm Circuit of Jackson pending in the Court County described, damages for as and denied a result of the accident generally allegations the of the claim. against corporation,

Was the claim Sehutte filed in Revised Statutes of and its insurer time? Section Law, Compensation part in that: provides the Workmen’s main- chapter under shall be proceedings compensation “No this within six unless a claim therefor be filed with the commission tained injury death, payments made after the or or in case have been months death, the date of or within six months from ’on account shall be payment. respects of last In all other such limitations recovery real governed by than law of civil actions other . property. . .” requirement filing specified claim within the time for the of a mandatory jurisdictional. precedent to the It is condition

is remedy under law right a claimant to seek to hear competent jurisdiction of commission requisite for Co., Boiler claim. v. Heine Mo. [Higgins 506.] bring right a claim and employee an to amend In reference to case, says: in as was done this party, an such in additional on an amendment in this State precedent established “There is no upon a con- He then relies liberal case.” similar to the one this authority pro- the amendment and of 'the act as struction against company. liberal construction order ceeding the lumber indulged law cannot the extent purposes be effectuate plain would be a violation of the statute to changing law. It when it could before the Commission prosecuted be hold idea of requires. appears It was not as statute original against that inasmuch as the appellant’s counsel subject amendment claim was Sehutte was filed time said after limitation party an bringing corporation additional to the could be related run, the amendment period appear procedure It how such filing claim. does justified requirement could be and meet the the statute for the alleged filing of a claim an in the and manner required. proceeding can be maintained individual No an corporation writing v. *7 until claim in is filed. Overall [Murphy Co., 866, 869, (2d) 225 Mo. The Schutte App. 34 S. W. 1035.] entity. Lumber Company a separate corporate is and distinct against an no filing individual. The of a claim one is in is filing against rational The that the of a claim the other. fact sense agents knowledge injury corporation the officers and of the of the way against and of the in no dis- claim made could pense against necessity timely filing with a the the of claim the corporation jurisdiction in order invoke the of the Commission.

The claim quoted filing limitation requiring statute above specified in a account injury, payment time after or after injury, provides “in limitations respects also all other such governed by recovery shall be than for the law of civil actions property.” of real defendant procedure party In where a new civil brought is by of Limitations into case amendment Statute continues to run com- party until is made the action is he that, recognized menced if him. is The established and rule between the time of and the time when the commencement of action an pre- new brought defendant period is the case the of limitation into may plead scribed law for expired, party such the new action has may liability the statute in have although bar of his the defense been original Thompson available et v. [Haney defendant. al., 339 Mo. 639, 641, 98 W. (2d) S. and cases cited.] claim against company lumber and its insurer was filed injury more than six clearly months after the barred limi payment tation unless made one of them on account of the injury within period the six months’ before the claim was filed. Med ical injured employee by attention rendered an employer “pay is ment on injury” account of the within meaning of the statute. [McEnemy Kresge Co., v. S. S. (2d) Mo. 62 W. S. 1067.] If injured employee an is entitled to he is also entitled treatment, to medical limits, within part allowable as a such com- pensation. 3701, R. S. If lumber company or its [Sec. 1939.] insurer authorized or furnished medical aid in this case the Statute of begin Limitations would not run in their favor until the cessation Myers such service. The medical Dr. service of continued from the' time to within few weeks of the on the amended claim. findings In its of fact the Commission stated that the amended claim was not barred the Statute of Limitations. Of course, finding this conclusion of law and not a is of fact. There nothing why is in the record that would indicate the Commission finding respondents reached this conclusion. There is no fur- attention, finding contrary. nished medical is a there to the It may be opinion, inferred the Commission was of con- tends, timely, inasmuch as the an amendment permissible given should effect as of the date of the original filing; might majority or it be inferred that of the Com- opinion company mission was of fur- that the lumber or insurer its nished medical statute, service which tolled the if it were not they findings expressly found, fact that both in the award and the attached, medical aid was not furnished wholly findings insurer. The and the are Commission only theory upon inconsistent. On this record the which conceivable kept insurer could be its filing furnishing alive until of the amended claim was the the. medical aid. not been The Commission found medical aid had they them, part therefor of com- furnished but that were liable as a maxim, payable. principle There no or substance pensation is *8 joint jurisprudence grease would Commission’s incon- sistency manipulated that it could be manner validate so finding with award. of facts inconsistent the award defeats But cases. ex rel. award. is rule Such [State 1008, 1010; (2d) al., v. 330 Mo. 51 S. W. tiger Haid et 492, 494; al., (2d)W. C. J. Buchanan v. et S. Nicozisis judgment. applied rule to court The same is secs. [Bon 1064, 1066.] Co., (2d) 566, 25 S. W. Coal durant v. Raven 572.] above, byto appellant testified the facts In addition to the time of unchallenged in this case show proof building engaged in' work on a owned injury was his him; that he not at that time work- his did arise Lumber ing for the Schutte employment for the Schutte in the out course finding of the Com- support evidence to Company, There is no of its contrary. acted excess The Commission mission to the ; support do not found the Commission powers; the facts competent evidence in record not sufficient and there whs making R. S. The the award. warrant [Sec. 1939.] right in judge of circuit court was learned that the result is trial against respondents was conclusion that jurisdiction, time; its award lacked the Commission court should be judgment The of the circuit reversed. should be G., Sperry, concurs. recommends. affirmed. Commissioner so Boyer, C., foregoing adopted opinion is PER CURIAM:—The concur. judgment is affirmed. All the court. The opinion