Conner v. M & M Packing Co.

• Court: Kansas Supreme Court
• Writing for the Court: PARKER, Justice.
• Citation: Conner v. M & M Packing Co., 166 Kan. 98, 199 P.2d 458 (Kan. 1948)
• Decision Date: 13 November 1948
• Docket Number: 37426.
• Parties: CONNER v. M & M PACKING CO. et al.

199 P.2d 458

166 Kan. 98

CONNER v. M & M PACKING CO. et al.

No. 37426.

Supreme Court of Kansas

November 13, 1948

Appeal from District Court, Allen County; Wallace H. Anderson Judge.

Appeal from District Court, Allen County; Wallace H. Anderson Judge.

Proceeding under the Workmen's Compensation Law by Albert W. Conner claimant, opposed by the M & M Packing Company, employer, and Commercial Standard Insurance Company, insurance carrier. From a judgment approving an award for total disability by the commissioner, the employer and insurance carrier appeal.

Judgment affirmed.

Syllabus by the Court.

In an appeal from a judgment awarding compensation for total disability resulting from injuries claimed to have been sustained by claimant as a result of having been struck in the back by a heavy door while engaged in the performance of common labor in the respondent employer's packing house, the record examined and it is held: (1) Such record discloses substantial competent evidence upholding the trial court's findings the claimant sustained an injury to his back as a result of an accident which resulted in his total disability, and (2) the provisions of G.S.1947 Supp. 44-510(3)(c)(24), providing for a reduction in compensation for an injury to a workman resulting in total disability where he has sustained a prior injury without which the subsequent injury would not have resulted in total disability, have no application where the last injury to the workman's back results in his total disability, notwithstanding and irrespective of the fact that prior to its occurrence he may have been totally deaf.

Wayne Coulson, of Wichita (Howard T. Fleeson, Homer V. Gooing, Paul R. Kitch, Dale M. Stucky and Donald R. Newkirk, all of Wichita, on the brief), for appellants.

J. D. Conderman, of Iola, for appellee.

PARKER Justice.

This is a workmen's compensation proceeding. At the hearing before the commissioner the claimant was allowed compensation for total disability not exceeding 415 weeks at a rate of $20 per week. On appeal the district court approved the commissioner's award and rendered judgment accordingly. Thereupon the respondent and the insurance carrier perfected this appeal.

From a careful examination of the record it appears of formal factual statement can be dispensed with and essential facts related as we dispose of controverted issues. However, before consideration is given to grounds relied upon by appellants for reversal of the trial court's award and judgment it should be stated there is no controversy over the relationship of employer and employee or the correctness of the computed weekly rate if the record sustains the trial court's finding of total disability.

Appellants first contend the evidence is insufficient to sustain a finding claimant suffered any disability as a result of accident. With commendable candor they concede the well established rule is that on appeal in workmen compensation cases this court does not weigh the evidence and has no jurisdiction of questions of fact. Abbott v. Southwest Grain Co., 162 Kan. 315, 176 P.2d 839. Having made that concession they they direct our attention to the same case recognizing and approving the principles that (1) the burden of establishing an accidental injury is upon the claimant and (2) even though we do not weigh conflicting evidence the question of whether the trial court's judgment is supported by substantial competent evidence is a question of law as distinguished from a question of fact. They then point to Jones v. Lozier-Broderick & Gordon, 160 Kan. 191, 160 P.2d 932, holding that an award must be supported by substantial competent evidence and cannot rest upon surmise or conjecture.

Conceding the record discloses much evidence which, if it had been believed by the tribunal vested by statute with the duty of weighing the evidence and determining its weight, would have warranted the trial court in finding in accord with appellants' view of the evidence we are convinced their position on this point cannot be upheld. True enough the claimant, who at the time he was injured was performing common labor in his employer's place of business, had been seriously handicapped physically for several years and had a weak back which had been stabilized by fusion of certain of the vertebra. It is likewise true he was unable to perform heavy manual labor and that there is no medical testimony the accident claimed by him to have been responsible for his condition was the cause of his injury. Even so, he was regularly employed as a common laborer with the respondent company and it cannot be denied that he was struck in the back by a heavy door on the date he claims to have suffered the injury of which he complains.

The trouble with appellants' position, as we see it, is that they entirely overlook the following evidence: (1) Claimant's statement that he was struck a little bit to the side of the hump on his back by a door six feet tall, four feet wide and eight inches thick and his testimony which in substance was to the effect that thereafter he noticed a change in his physical condition, his back hurt him, his legs which had never given him trouble before would give way and allow him to fall down, he was not able to lift and do the type of work he had been doing before such accident and he quit work as the result of his injury. (2) Statements by claimant's wife that within two or three days after May 21, 1947, the day on which the trial court on controverted evidence found the accident occurred, she saw bruises on her husband's back to the right of the spinal column as big as a tea cup and that since his injury on that date, although she had been married to him for over a year and had never noticed it happening before, she had observed that he could hardly walk at times and had seen him fall on several occasions. (3) The testimony of claimant's mother who said that he had never been troubled with his legs before the accident and stated: 'Since the accident his limbs gave way with him and he just can't keep going, that is all, he has to lie down. He had not been troubled that way before.' This witness also testified that on or about May 22 or 23 she noticed a big bruise spot or her son's back, about six inches above the belt line and about an inch or half an inch to the right of the back-bone, which was about the size of a tea cup.

In the face of the foregoing testimony we cannot say the evidence offered by claimant was not substantial, notwithstanding there is much in the record to justify a contrary conclusion and even though such evidence is unsupported by direct and positive medical testimony.

This court has expressly held in repeated decisions that in this state, unlike some states, it is not essential that duration of disability or incapacity of an injured workmen be established by medical testimony. Bull v. S. Patti Const. Co., 152 Sykes, 618, 106 P.2d 690; Copenhaver v. Sykes, 160 Kan. 238, 160 P.2d 235; Jones v. Western Union Telegraph Co., 165 Kan. 1, 8, 192 P.2d 141.

Moreover we have upheld awards on far less evidence than that to be found in the instant record, e. g., see Hardwell v. St. Louis Smelting & Refining Co., 146 Kan. 870,...