Buesing v. Moon Motor Car Co.
| Decision Date | 06 December 1932 |
| Citation | 54 S.W.2d 734,227 Mo.App. 372 |
| Parties | AUGUST BUESING, EMPLOYEE, RESPONDENT, v. MOON MOTOR CAR COMPANY, EMPLOYER, AND EMPLOYERS' LIABILITY ASSURANCE CORPORATION, INSURER, APPELLANTS |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of City of St. Louis.--Hon. Claude O Pearcy, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Allen Moser & Marsalek for appellants.
(1) The evidence is insufficient to sustain the finding, and the award based thereon, of eighty-three weeks' temporary total disability to the date of the final award. (a) To warrant such an award, the burden was upon respondent to show that he was totally disabled, that is, unable to engage in any employment, during the period referred to. The evidence does not sustain the proposition, but refutes it. Workmen's Compensation Act, sec. 7 (e); R. S. 1929, sec 3305; Lacione's case, 227 Mass. 269, 116 N.E. 485; Grunsick v. Charles Schaefer & Son, 186 N.Y.S. 744 195 A.D. 334; Corral v. Hamlyn & Son, 94 A. 877; Carlson v. Avery Co., 196 Ill.App. 262; Modra v. Little, 223 N.Y. 452, 119 N.E. 853; Western Const. Co. v. Early, 81 Ind.App. 490, 142 N.E. 396; Zwaduk v. Morris & Co., 109 Kan. 186, 197 P. 868; Studebaker Corporation v. Warner, 76 Ind.App. 515; Tazewell Coal Co. v. Ind. Comm., 312 Ill. 145. (b) To sustain such an award the burden was upon respondent to show further that the alleged total disability was caused by his injury or disease or infection naturally resulting therefrom. The record contains no such evidence. Workmen's Compensation Act, sec. 3, R. S. 1929, sec. 3301; Workmen's Compensation Act, sec. 7 (b), R. S. 1929, sec. 3305; Bunge Bros. Coal Co. v. Ind. Comm., 306 Ill. 582; McCoy v. Michigan Screw Co., 180 Mich. 454; Pacific Coast Mut. Cas. Co. v. Pillsbury, 171 Cal. 319; Bloch v. Contact Process Co., 207 N.Y.S. 376, 211 A.D. 641; Desrochers v. Atwood-Crawford Co., 47 R. I. 116; Spring Valley Coal Co. v. Ind. Comm., 289 Ill. 315; Fink v. Sheldon Axle & Spring Co., 270 Pa. 476; Mauchline v. State Ins. Fund, 279 Pa. 524; Kill v. Ind. Comm., 160 Wis. 549; Perry County Coal Corp. v. Ind. Comm., 305 Ill. 513; Freeman Coal Co. v. Ind. Comm., 315 Ill. 84. (2) The evidence is insufficient to sustain the award of compensation for temporary total disability for 400 weeks, and the finding of facts made by the commission does not support said award. 34 S.W.2d 1015.
(a) Where the finding of facts made by the commission does not sustain the award, the award should be set aside on appeal. Workmen's Compensation Act, sec. 44, R. S. 1929, sec. 3342. (b) An award should not be made upon speculation as to the probable future duration of the disability. Tazewell Coal Co. v. Ind. Comm., 312 Ill. 145; Groveland Coal Co. v. Ind. Comm., 309 Ill. 73; Arcangelo v. Gallo et al., 163 N.Y.S. 727. (c) Upon application for modification of an award on the ground of a change in condition, the propriety of the original award is not in issue, and the burden is upon the moving party to show that a change has occurred since the original award was entered. Workmen's Compensation Act, sec. 42, R. S. 1929, sec. 3340; Fischer v. W. F. Priebe Co., 178 Ia. 512, 160 N.W. 48; Gray, Dawes & Co. v. Reed (1913), W. C. & Ins. Rep. 127; 6 Butterworth's W. C. C. 43; State ex rel. v. John Wunder Co. (Minn.), 161 N.W. 391; Casparis Stone Co. v. Ind. Bd., 278 Ill. 77.
Abbott, Fauntleroy, Cullen & Edwards for respondent.
(1) Awards of the Workmen's Compensation Commission may only be modified, reversed or remanded upon the grounds set out in the act. Sec. 3342, R. S. 1929. (2) There is sufficient competent evidence in the record to warrant the award as made by the commission, because: (a) Awards of the Workmen's Compensation Commission are accorded the same force and effect as verdicts of the jury. Cobb v. Standard Accident Insurance Co., 31 S.W.2d 573; Wheat v. Whitney and Sons, 34 S.W.2d 158; State ex rel. v. Mo. Workmen's Compensation Commission, 8 S.W.2d 899; Cotter v. Valentine Coal Co., 14 S.W.2d 660; Hager v. Pulitzer Publishing Co., 17 S.W.2d 578; Kinder v. Hannibal Car Wheel Co., 18 S.W.2d 91. (b) If there is any evidence to support the Commission's finding, it may not be disturbed on appeal. Cobb v. Standard Accident Ins. Co., 31 S.W.2d 573; Huelsmann v. State and Co., 28 S.W.2d 387; Rolens v. Kelbs Construction Co., 24 S.W.2d 1077; Cotter v. Valentine Coal Co., 14 S.W.2d 660; Miller v. St. Joseph Transfer Co., 32 S.W.2d 449. (c) Appellee is entitled to all the most favorable presumptions from all the evidence, and if the most favorable presumptions drawn from all the evidence indicate that he is entitled to the award, it must be sustained in the appellate courts. Cotter v. Valentine Coal Co., 14 S.W.2d 660; Huelsman v. State and Co., 28 S.W.2d 387; Brewer v. Ash Grove Lime Co., 25 S.W.2d 1089. (d) Under the Missouri Workmen's Compensation Law there is no power in the reviewing tribunal to set aside a finding of the Workmen's Compensation Commission as against the weight of the evidence. Hammack v. West Plains Lumber Co., 30 S.W.2d 650; Wheat v. Whitney and Sons, 34 S.W.2d 161. (e) An injury which aggravates or accelerates a pre-existing condition entitles the employee to compensation. Farrow v. What Cheer Clay Prod. Co. (Iowa), 200 N.W. 625; Orf's case (Me.), 119 A. 67; Rochford v. Commission (Ill.), 129 N.E. 135; Centralia v. Commission, 135 N.E. 98; Indianapolis Abbatoir Co. v. Coleman (Ind.), 117 N.E. 502; Durrett v. Woods (La.), 99 So. 430; Fritz v. Rudy Furnace Co. (Mich.), 188 N.W. 528; Hogan v. Twin City Amusement Trust Estate (Minn.), 193 N.W. 122; Pace v. Compensation Bureau (N. D.), 201 N.W. 348; Fitzsimmons v. State Industrial Commission (Okla.), 236 P. 616; Tintic Milling Co. v. Industrial Commission (Utah), 206 P. 278; Pinyon Queen Mining Co. v. Industrial Commission, 204 P. 323.
BECKER J.
This is an appeal by the employer and insurer from a judgment of the circuit court affirming a final award made by the Workmen's Compensation Commission.
The employee, on May 4, 1928, suffered a sprain of his left ankle by accident arising out of and in the course of his employment. In due course plaintiff's claim was filed and a hearing had before the commission on December 20, 1928, the sole question in controversy relating to the nature and extent of the disability suffered by the employee as a result of the accident. The claim was partially heard, but, due to the absence of one of the physicians who had examined plaintiff for the insurer, the hearing was continued until May 10, 1929, at which time the hearing was concluded. On June 24, 1929, the commissioner, before whom the case was tried, made an award in favor of the employee.
The hearing disclosed that the employee was suffering from an arthritic condition of his left foot, which the employee testified began several weeks after he sprained the ankle of his said left foot, and medical testimony having been adduced that the arthritic condition was due to some local infection, the employee was sent to a throat specialist, who removed his tonsils, and to a dentist, who extracted seven of his teeth and treated the remaining teeth for pyorrhea. At a hearing on review before a member of the commission, on October 11, 1929, claimant testified that the removal of his tonsils and the treatment of his teeth had not improved his condition, and that it was no better than it had been in May, 1929. The commissioner awarded claimant compensation for "temporary total disability from May 4, 1928, through December 31, 1929, at the rate of $ 14.40 per week, and thereafter, so long as such disability continues, with the right in the employer and insurer to apply for a modification thereof upon termination of such disability." This award was subject to the credit of $ 438.18 previously paid the employee.
In the latter part of November the insurer wrote to the commission notifying it, that it refused to make further payment to the employee, and requested that the case be set down for hearing in order that the temporary award be made permanent.
On December 9, 1929, the full commission, in accordance with the insurer's request, without hearing any further testimony, made a final award in the case, which contains the following findings of fact:
From the "rulings of law" we quote the following:
"This award of 400 weeks is made in accordance with section 15, Workmen's Compensation Act, Laws of 1927, with the right in the employer and insurer to ask for a modification thereof by virtue of section 42, Workmen's Compensation Act, Laws of Missouri, 1927."
In due time the employer and insurer filed their notice of appeal to the circuit court, where the award of the commission was affirmed, and in due course an appeal was taken to this court.
The first point urged for our consideration is that the evidence is insufficient to sustain the findings and award based thereon, that the claimant suffered eighty-three weeks temporary total disability to the date of the final award.
We have in mind that on appeal, in the absence of fraud, the findings of fact made by the commission within its powers are conclusive and binding, and that such findings of fact and award of the commission have the force and effect of the verdict of a jury. [Leilich v....
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