Crawford v. A. J. Sheahan Granite Co.

• Decision Date: 27 April 1948
• Docket Number: 6757
• Citation: 211 S.W.2d 52
• Parties: CRAWFORD v. A. J. SHEAHAN GRANITE CO. et al
• Court: Missouri Court of Appeals

211 S.W.2d 52

CRAWFORD v. A. J. SHEAHAN GRANITE CO. et al

No. 6757

Court of Appeals of Missouri, Springfield

April 27, 1948

'Not to be published in State Reports'

Albert I. Graff and Malcolm I. Frank, both of St. Louis, for appellants.

J Arthur Francis, of St. Louis, for respondent.

OPINION

BLAIR

This is an appeal from a judgment of the Circuit Court of Iron County, in a Workmen's Compensation Commission case. A claim was filed by respondent, as dependent, for the death of Glenn Crawford. Such claim was heard by Hon. Carl F. Wymore, Referee, of the Workmen's Compensation Commission, at Ironton, Missouri on September 24, 1946, where all of the evidence in the case, now before us or the circuit court, was heard.

The referee, having found against dependent, (respondent here), she filed an application for review before the full Industrial Commission. On April 22, 1947, that Commission made the following order or award:

'After fully considering the evidence, exhibits and pleadings, the Commission finds in favor of the employer and insurer and against the dependent and awards no compensation for the alleged accident.

'We find from the evidence that the death of Glenn Crawford, employee herein, was not the result of an accident arising out of and in the course of his employment on or about July 18, 1946, as alleged. Compensation, therefore, must be and the same is hereby denied.'

Being unsuccessful before the full Commission, dependent appealed to the Circuit Court of Iron County, on July 25, 1947.

Being more successful in the Circuit Court of Iron County, dependent there, on December 3, 1947, obtained a finding and judgment in her favor.

Thereafter, both the employer and the insurer appealed to this Court from the judgment of the Iron County Circuit Court. As the attorneys for respondent (dependent) and appellants have entered into a stipulation for a 'condensed transcript,' only the ultimate facts of the testimony of the various witnesses before the referee and the Commission are before us.

It appears that Glenn Crawford, the husband of respondent, was in the employ of appellant Granite Company, and died on July 18, 1946, while so employed. Respondent was the widow of and totally dependent upon said Glenn Crawford. Appellant Bituminous Casualty Corporation was the insurer of such employer, the Granite Company, the other appellant.

There is a great deal of testimony in the record, pro and con, as to whether or not said Glenn Crawford met with an accident, while in such employ, which ultimately caused his death.

We need not detail such testimony here, but assume, for the purposes of this case, without so deciding, that there was evidence before the referee, and later the Commission, tending to show that Glenn Crawford suffered an accident while in the employ of appellant Granite Company, and that his death was caused by said accident.

The circuit court found and held that the finding of the Workmen's Compensation Commission could not reasonably have been reached upon a consideration of all of the evidence. In other words, the circuit court must have found that there was no competent or substantial evidence before the referee and the Commission, tending to show that said Glenn Crawford did not die, as the result of an accident, while in the employ of appellant Granite Company, or that such finding was against the overwhelming weight of the evidence.

The testimony of respondent could not possibly have any bearing on the question of whether or not an accident occurred, for she was not present at the time and place of the alleged accident. Her testimony was necessarily confined to what occurred after Glenn Crawford was brought home. Nor is the medical evidence of any value as to what took place at the time respondent asserts the alleged accident occurred. At the time of the alleged accident, only Gault, Barton, Brooks and the deceased, with the truck driver, who apparently did not testify, were present.

Despite the assumption by us that respondent's evidence, before the referee and the Commission, had some tendency to show that Glenn Grawford suffered an accident, while in the employ of appellant Granite Company, and that such accident was the cause of his death, the referee of the Commission, and the Commission itself, considering such evidence, had the right to disbelieve the testimony tending to show that any accident occurred, and to believe the witnesses who testified to the contrary.

Other testimony, if believed by the referee, was sufficient for the referee to find: 'I find from all the evidence that the death of Glenn Crawford, employee herein, was not the result of an accident arising out of and in the course of his employment on or about July 18, 1946, as alleged; therefore, compensation must be and the same is hereby denied.' and for the Commission, considering such testimony later, to find as already set out.

It should not be necessary at this late day for us to cite cases (of which there are a multitude), holding that the trier of the facts has right to find the facts in accordance with the testimony of any witnesses whom he or it believes, if such testimony is...