Gillick v. Fruin-Colnon Const. Co.

• Decision Date: 06 December 1933
• Citation: 65 S.W.2d 927,334 Mo. 135
• Parties: Mary Gillick, James Patrick Gillick, Raymond Gillick and Harry Francis Gillick v. Fruin-Colnon Construction Company and Standard Accident Insurance Company, Appellants
• Court: Missouri Supreme Court

65 S.W.2d 927

334 Mo. 135

Mary Gillick, James Patrick Gillick, Raymond Gillick and Harry Francis Gillick v. Fruin-Colnon Construction Company and Standard Accident Insurance Company, Appellants

Supreme Court of Missouri

December 6, 1933

Appeal from Circuit Court of City of St. Louis; Hon. Robt. W. Hall, Judge.

Reversed.

J D. Leritz and Allen, Moser & Marsalek for appellants.

(1) The finding of the commission, stated as part of its final award that the accident of November 18, 1929, was neither directly nor indirectly the cause of the employee's death, but that said death resulted from causes independent of said accident, was a finding of fact, and as such was binding upon the circuit court, on appeal. Sec. 3342, R. S. 1929; Leilich v. Chevrolet Motor Co., 40 S.W.2d 604; Doughton v. Marland Refining Co., 53 S.W.2d 236. (2) The commission's said finding has the force and effect of a jury's verdict, and must be sustained on appeal if the evidence in the record, when viewed in the light most favorable to the successful party, tends to support such finding. The evidence in the present record is ample to support the conclusion of fact which the commission reached in its final award. Doughton v. Marland Refining Co., supra; State ex rel. Brewen Clark Syrup Co. v. Workmen's Comp. Comm., 320 Mo. 893; Metting v. Lehr Const Co., 225 Mo.App. 1152; Waring v. Met. Life Ins. Co., 225 Mo.App. 600. (3) It was the province of the commission to pass upon the credibility of the witnesses, and the weight to be given their testimony, and to determine what conclusions of fact the testimony supported. Without reference to the testimony for employer and insurer, it was the right and duty of the commission to reject the claim if the circumstances warranted them in disbelieving the evidence and opinions offered in its support. Doughton v. Marland Ref. Co., supra; Laughlin v. Railway, 275 Mo. 473; Kansas City v. Morris, 207 S.W. 503; Hall v. St. Louis, 138 Mo. 627. (4) The circuit court was wholly without authority or jurisdiction, under the law, to enter an order remanding the case and directing the commission to enter an award contrary to the finding of fact made by the commission. Authorities, supra; Secs. 3339, 3342, R. S. 1929.

Foristel, Mudd, Blair & Habenicht for respondents.

(1) The award of the Compensation Commission is not supported by substantial competent evidence found in the record. Kinser v. Dry Goods Co., 48 S.W.2d 167; Teague v. Clay Products Co., 52 S.W.2d 880; Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Cotter v. Coal Co., 14 S.W.2d 660; Seifert v. Packing Co., 52 S.W.2d 579. (2) An expert opinion, as in the case of Dr. Roberts, is incompetent as evidence and will not sustain a verdict when based upon a hypothetical question omitting material and essential elements of the case upon which his opinion is asked and in case of only a partial statement of material facts. Meiley v. Railroad, 129 Mo.App. 567; Neudeck v. Grand Lodge, 61 Mo.App. 106; Smart v. Kansas City, 208 Mo. 201; Senn v. Ry. Co., 18 S.W. 1009; Turner v. Haar, 21 S.W. 738; Powell v. Railroad, 250 Mo. 447; Seelig v. Ry. Co., 287 Mo. 364. (3) An opinion of an expert in answer to a hypothetical question is competent only when the question is based wholly upon facts supported by the evidence and when, as in the case of Dr. Roberts, the opinion is based upon information not shown to have been acquired from the sworn testimony, such opinion is incompetent and worthless as evidence and will not support a finding of fact by the commission. White v. Mo. Pac., 178 S.W. 83; Feed & Coal Co. v. Railroad, 129 Mo.App. 498. (4) "Doubt, if any, respecting right to compensation, is resolved in favor of employee." Shout v. Concrete & Construction Co., 41 S.W.2d 629; Betz v. Tel. Co., 24 S.W.2d 228; Pruitt v. Harker, 43 S.W.2d 773.

OPINION

Frank, P. J.

This is an appeal from a judgment of the circuit court setting aside an award made by the Workmen's Compensation Commission in favor of the employer and insurer and remanding the cause with instructions to make an award in favor of claimants. Both employer and insurer appealed.

Appellants concede that respondents offered evidence tending to show that on November 18, 1929, deceased was in the employ of Fruin-Colnon Construction Company as a bricklayer; that while in the course of his employment on a job at the Carter Carburetor Company Building in St. Louis, he stepped on a nail and sustained a puncture wound of his right foot; that said wound never completely healed, that it became infected and caused a lymphangitis, or infection, which extended up his right leg, producing an enlarged and swollen gland in his right inguinal region, and an infected mass about the size of a lemon in his abdomen; that as a result of this infection he suffered septicemia which affected the organs of his abdomen, including the appendix; that he underwent an operation for the removal of the appendix on February 24, 1930, and died on March 2, 1930; that respondents' medical witnesses testified that his death was the result of the puncture wound of the foot and the conditions produced by it.

On the other hand, appellants contend that their evidence tends to show that deceased did not suffer an injury to his foot while in the employ of the construction company; that he made no report of such an injury; that he suffered an attack of acute appendicitis on February 20, 1929, for which he underwent an operation four days later; that as a result of the inflamed and infected condition of his appendix, he suffered peritonitis and septicemia; that appellants' medical witnesses testified that said condition caused his death on March 2, 1929; that his death was not caused or contributed to by the alleged injury to his foot.

Section 44 of the Workmen's Compensation Act, which now appears as Section 3342, Revised Statutes 1929, provides that "upon appeal no additional evidence shall be heard and in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: 1. That the commission acted without or in excess of its powers. 2. That the award was procured by fraud. 3. That the facts found by the commission do not support the award. 4. That there was not sufficient competent evidence in the record to warrant the making of the award."

This case was first heard by a referee who made an award in favor of claimants. On review by the full commission, the award made by the referee was reversed. The finding and order of the full commission is as follows:

"The above parties having submitted their disagreement or claim for compensation for the above accident to the undersigned members of the Missouri Workmen's Compensation Commission, and after hearing the parties at issue, their respective witnesses and evidence, the undersigned hereby find in favor of the above employer and insurer and against the above dependents and award no compensation for above accident. On review, award dated October 27, 1930, is hereby reversed and set aside with the finding that the accident of November 18, 1929, was neither directly nor indirectly the cause of employer's death on March 2, 1930, but said death resulted from causes independent of said accident."

The findings made by the full commission were findings of the ultimate fact, and under the express provisions of Section 3342, Revised Statutes 1929, and the decisions of this court construing that statute, such findings of fact, if supported by substantial evidence, are conclusive and binding on all reviewing courts. [Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601, 604; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236.] Respondents do not dispute the law as we have stated it, but contend that the award made by the commission is not supported by substantial, competent evidence. This contention presents the only issue for determination.

The evidence of the employer and insurer consisted of expert testimony of three doctors; Dr. Roberts, Dr. Vosberg and Dr. Thomas. Each of these doctors gave it as their opinion that Gillick's death was caused by acute appendicitis, peritonitis and septicemia, and that the injury to his foot did not have anything to do with the cause of his death.

We will first take the evidence of Dr. Roberts. A hypothetical question propounded to him concluded by calling for his opinion as to the cause of Gillick's death. His answer, over claimants' objection was that death was due to acute appendicitis, peritonitis and septicemia. Respondents contend that the question was improper, and the answer thereto does not amount to substantial evidence, because the question omitted important facts shown by the evidence which claimants contend tended to show the true cause of the death, to-wit, the nail puncture of the foot, the red streak running from the foot to the knee, the indurated mass containing a quart of pus and the lymphangitis.

It may be conceded that a hypothetical question which omits important elements of the case is improper. However, we do not agree with respondents that the matters which they claim were omitted from the question were, in fact, omitted. After the first hypothetical question was asked, and after it was answered by Dr. Roberts as above indicated, the referee hearing the case, asked the following question:

"Q. Doctor, while you are on that question, you heard Dr. Maizus testify as to a beef-like appearance and as to a growth on the outer side, an abscess; taking that further fact into consideration state your answer on that question. A. The...