Corpora v. The Kansas City Public Service Company

Decision Date08 February 1930
Docket Number29,037
Citation284 P. 818,129 Kan. 690
PartiesORSOLINA S. CORPORA, Appellant, v. THE KANSAS CITY PUBLIC SERVICE COMPANY, Appellee
CourtKansas Supreme Court

Decided January, 1930.

Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. WORKMEN'S COMPENSATION ACT -- Appeal to Supreme Court -- Time When Act Governs. Chapter 206 of the Laws of 1929, which restored to the supreme court a limited appellate jurisdiction in workmen's compensation cases, governs the right of appeal from a judgment of the district court entered after that statute took effect, although the accident and injury to the workman and the proceedings before the compensation commission and the award made by that tribunal transpired during the interval when this court was without appellate jurisdiction in matters of that character.

2. SAME--Scope of Appellate Review in District and Supreme Court. The scope of the appellate review of the district court as to the facts as well as the questions of law presented by the record made before the examiner for the compensation commission, and the more limited appellate review conferred on the supreme court in chapter 206 of the Laws of 1929 discussed.

3. SAME--Injuries Incident to Employment. Where an employee whose working day began at 7 a. m. arrived at his place of employment a few minutes prior thereto, registered his attendance, and went to a dressing room provided by his employer, and there sustained a fall and injury while putting on his overalls, from which injury and other infirmities he died, it is held that the accidental fall and injury were incidents of the employment and his dependent widow was entitled to compensation.

J. E. McFadden, O. Q. Claflin, Jr., both of Kansas City, and H. A. Ault, of Kansas City, Mo., for the appellant.

E. S. McAnany, M. L. Alden, Thomas M. Van Cleave, all of Kansas City, and Charles L. Carr, of Kansas City, Mo., for the appellee.

Dawson, J. Burch, J., Jochems, J. dissenting.

OPINION

DAWSON, J.:

This case had its inception in a compensation award made to the plaintiff for a fatal injury to her husband, who was an employee of defendant, a street railway company in Kansas City.

From the award allowed by the commissioner the defendant invoked its statutory right of appeal to the district court, where the cause was tried upon the record. The district court set aside the award and on April 20, 1929, gave judgment for defendant, pursuant to its finding, which reads:

"Upon examination of the record the court finds as a matter of law that the injury sustained by Angelo Corpora on January 12, 1928, did not arise out of his employment with said defendant, the Kansas City Public Service Company, and is therefore not compensable, and that the award heretofore made herein should be set aside for the reason that said injury did not arise out of the employment of Angelo Corpora with the defendant."

Plaintiff appeals.

Defendant moves to dismiss for the reason that the accident happened on January 12, 1928, at a time when this court had no jurisdiction of such appeals. (Norman v. Consolidated Cement Co., 127 Kan. 643, 274 P. 233.) The proceedings before the compensation commissioner were had while the act of 1927 was in force and also when the commissioner's award was appealed to the district court. But ere the district court had announced its decision the present statute had taken effect. It reads:

"That any party to the proceedings may appeal from any findings or order of the district court on questions of law." (Laws 1929, ch. 206, effective March 15, 1929.)

It is generally held that changes affecting the right of appeal, without qualifying language, apply to pending litigation. In McClain v. Williams, 10 S.D. 332, 43 L. R. A. 287, 73 N.W. 72, it was said:

"It seems to be well settled that, if a law conferring jurisdiction is repealed without any reservation as to pending cases, all such cases fall with the law, and, of course, where the law conferring the right of appeal is partially repealed. (Baltimore & P. R. Co. v. Grant, 98 U.S. 398, 25 L.Ed. 231; Ex Parte McCardle, 7 Wall. 506, 19 L.Ed. 264; United States v. Boisdore, 8 How. 113, 12 L.Ed. 1009; McNulty v. Batty, 10 How. 72, 13 L.Ed. 333; Norris v. Crocker, 13 How. 429, 14 L.Ed. 210; The Assessors v. Osbornes, 9 Wall. 567, 19 L.Ed. 748; United States v. Tynen, 11 Wall. 88, 20 L.Ed. 153; Callahan v. Jennings, 16 Colo. 471, 27 P. 1055; Cooley, Const. Lim. p. 474.)" (p. 336.)

In Cassard v. Tracy, 52 La. Ann. 835, 49 L. R. A. 272, 27 So. 368, it was held:

"Under the constitution of 1879 appeals to the court of appeals for the parish of Orleans in cases involving less than $ 500 were upon questions of law alone. Under the constitution of 1898 the court has jurisdiction in all cases, both of the law and the facts." (Syl. P 2.)

"The moment the constitution of 1898 went into effect, appeals then pending in the court of appeals became entitled to consideration, not from the point of view of the jurisdiction conferred upon the court by the constitution of 1879, but from the point of view of the jurisdiction conferred upon the court by the constitution of 1898." (Syl. P 1.)

In Coal Co. v. Barber, 47 Kan. 29, 27 P. 114, a judgment of the district court against a coal company for $ 65 was rendered on February 2, 1889. At that time the coal company had a right to an appellate review and it promptly procured a case made, duly settled by the trial judge, on February 20, 1889, and on March 20 it filed its petition in error and directed summons to be issued thereon. On the same day a statutory amendment to the code of civil procedure took effect, which limited the supreme court's appellate jurisdiction over mere money judgments to sums in excess of $ 100. The court held that the right of appeal was governed by the procedural statute in force at the time the petition in error was filed, not by the rule of the code in force at the time the judgment was rendered.

In 2 Cooley's Constitutional Limitations, 8th ed. 790, it is said:

"And if a case is appealed, and pending the appeal the law is changed, the appellate court must dispose of the case under the law in force when its decision is rendered."

In 3 C. J. 328 the rule is stated:

"Except where it is provided that a statute which gives, takes away, or modifies the remedy by appeal or other mode of review shall not apply to actions which are pending, the statute applies to cases commenced before, but in which the judgment, decree, or order sought to be appealed from is not rendered or made until after it goes into effect."

See, also, 6 R. C. L. 294-296.

In view of the foregoing, appellee's motion to dismiss must be denied.

Turning then to the question of law involved in this appeal, it appears that in conformity with the statute the case was tried and determined in the district court upon the record made before the compensation commissioner; and it comes to us in much the same way. The trial court did have a broader power of review than does the supreme court. In this class of cases, under the compensation act of 1927, the district court hears no additional evidence and sees no witnesses, but it has both jurisdiction and duty to make an independent adjudication as to the facts as well at the law; and except as otherwise bound by the statute itself it may increase or diminish any award of the commission "as justice may require." The statute of 1927 has not been materially changed by the act of 1929 in that respect. It reads:

"Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the commission to the district court of the county where the cause of action arose upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the commission. . . . On any such appeal the district court shall have jurisdiction to grant or refuse compensation, or to increase or diminish any award of the commission as justice may require." (Laws 1929, ch. 206, amending Laws 1927, ch. 232, § 42.)

The supreme court's jurisdiction being limited to questions of law only, it must take the record as it finds it; and where the evidence before the commissioner who made the award would warrant two opinions of its probative value or the credence which should be accorded it, this court would have to accept as correct the finding of the district court thereon although it did not agree with that of the commissioner. In no other apparent fashion can effect be given to the broader power of the district court to determine questions of fact as well as questions of law. In this case, however, it is not apparent that the district court disagreed with the compensation commissioner on any mere question of fact. While the trial court made a finding that the injury to the workman did not arise out of his employment, that finding was a conclusion correctly or incorrectly deduced from the evidence about which there was no serious controversy. The evidence clearly showed that the workman arrived at his employer's premises a few minutes before 7 a. m., which was the hour his regular duties began. Prior to going to work it was his preliminary duty to sign a register to show he was on hand. This he did. Then he went to a dressing room to change clothes and put on his overalls. While putting on his overalls he fell to the floor and sustained an impacted fracture of the right hip. He was taken to the hospital and contracted pneumonia. He was over 70 years of age, and had a defective heart, and the three afflictions caused his death. One doctor testified:

"Personally I think the cause of...

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