Goebel v. Missouri Candy Co. et al.

• Decision Date: 07 June 1932
• Docket Number: No. 22122.,22122.
• Citation: 50 S.W.2d 741
• Court: Missouri Court of Appeals
• Parties: JOHN A. GOEBEL, EMPLOYEE, RESPONDENT, v. MISSOURI CANDY COMPANY, EMPLOYER, AND T.H. MASTIN & COMPANY, INSURER, APPELLANTS.

50 S.W.2d 741

JOHN A. GOEBEL, EMPLOYEE, RESPONDENT, v. MISSOURI CANDY COMPANY, EMPLOYER, AND T.H. MASTIN & COMPANY, INSURER, APPELLANTS.

No. 22122.

St. Louis Court of Appeals. Missouri.

Opinion filed June 7, 1932.

Appeal from the Circuit Court of the City of St. Louis. — Hon. H.A. Rosskopf, Judge.

AFFIRMED.

Fordyce, White, Mayne & Williams and Paul S. Schmid for appellants.

(1) Since the Commission, in its finding of fact, found that the injury of September 10, 1928 was only responsible for the loss of the use of the left hand of the claimant, its award was not in accordance with that finding. Sec. 3342, R.S. 1929. (2) There was not sufficient competent evidence in the record to warrant the making of the award. Sec. 3342, R.S. 1929; De Moss v. Evens & Howard Fire Brick Co., 37 S.W. (2d) 961. (3) The injury which occurred to the right hand of the claimant twenty years previous to September, 1928, did not arise out of nor did it arise in the course of claimant's employment with this employer, and, therefore, is not compensable under the Missouri Workmen's Compensation Act; and, therefore, the Court erred in failing to reverse the award of the Missouri Workmen's Compensation Commission, and said Commission erred in making such an award in favor of claimant. Sec. 3301, R.S. 1929; De Moss v. Evens & Howard Fire Brick Co., 37 S.W. (2d) 961; Smith v. Levis-Zukoski Mercantile Co., 14 S.W. (2d) 470; Wahlig v. Krenning-Schlapp Grocer Co., 29 S.W. (2d) 128; In re Employer's Liability Assurance Corp., 215 Mass. 497, 102 N.E. 697; Hopkins v. Michigan Sugar Co., 150 N.W. 325, L.R.A. 1916A 310; Milliken v. Traveler's Ins. Co., 216 Mass. 293, 103 N.E. 898, L.R.A. 1916A 337; Sawtell v. Stern Bros. & Co., 44 S.W. (2d) 264, l.c. 268-269. (4) Since the condition resulting from the injury of September 10, 1928, was the loss of the left hand of the claimant, and, therefore, a permanent partial disability, claimant was not entitled to an award of compensation as for permanent total disability; and, therefore, the court erred in failing to reverse the award of the Missouri Workmen's Compensation Commission, and said Commission erred in making an award on the basis of permanent total disability in favor of the claimant. Sec. 3315, R.S. 1929; Sec. 3316 (b), R.S. 1929; Sec. 3317 (a), R.S. 1929; Weaver v. Maxwell Motor Co., 152 N.W. 993, L.R.A. 1916B 1276; Stevens v. Marion Mach. Foundry & Supply Co. (Ind.), 133 N.E. 23; Quinn v. American International Ship Building Corp., United States Shipping Board Emergency Fleet Corp., 77 Pa. Sup. Ct. Rep. 304; Collins v. Albert A. Albrecht Co., 180 N.W. 480; Halapy v. Peters Creek Gas & Coal Co., 79 Pa. Sup. Ct. Rep. 196; Wiser-Buchanan Coal Co. v. Risco (Okla.), 1 Pac. (2d) 411; Garwin v. District Court of Cass County, 151 N.W. 910; Gilmore v. Lumbermen's Reciprocal Assn. (Tex.), 292 S.W. 204. (5) The commission was not justified under the evidence in this cause to find a total loss of the use of the right hand in the injury sustained twenty years previous to September, 1928, but should have found that the right hand was not totally lost nor was the use thereof totally lost under the Missouri Workmen's Compensation Act; and, therefore, the court erred in failing to reverse the award of the Missouri Workmen's Compensation Commission, and said commission erred in making its award on the basis of that finding. Sec. 3315, R.S. 1929; Webster's New International Dictionary; Woods v. American Coal & Ice Co., 25 S.W. (2d) 144; Sykes Co. v. Industrial Commission et al., 145 N.E. 401, 314 Ill. 326; Ballou v. Industrial Commission et al., 296 Ill. 434, 129 N.E. 755; Adams v. Boorum & Pease, In re American Mutual Compensation Ins. Co., 166 N.Y.S. 97; Cox v. State Industrial Commission (Okla.), 282 Pac. 610. (6) The Missouri Workmen's Compensation Act presumes that for the injuries stated in the schedules provided by the act there will be some loss of earning power and compensates accordingly. There is no recovery under our Missouri act for loss of "earning power" as such. Betz v. Columbia Telephone Co., 24 S.W. (2d) 224; Lynch v. Gleaner Combine Harvester Corp., 17 S.W. (2d) 554.

Arthur L. Wackwitz for respondent.

(1) Claimant is permanently and totally disabled within the meaning and definition of those terms as used and defined in the Missouri Workmen's Compensation Act. Sec. 3316 (b), R.S. 1929. (2) Claimant's previous disability and his last injury must be considered together and in their entirety, and, so considered, constitute the "resulting condition" comprising claimant's permanent and total disability. Sec. 3316 (b), R.S. 1929; Sec. 3317, R.S. 1929. (3) The claimant's previous disability, although sustained prior to the enactment of the Missouri Workmen's Compensation Act, must be considered in determining the question of permanent total disability, and such injury is fully within the contemplation of the act. In re Branconnier's Case, 223 Mass. 273; Duffy's Case, 226 Mass. 131; Schwab v. Emporium Forestry Co., 167 N.Y. App. Div. 614, 216 N.Y. 712; Superior Coal Co. v. Industrial Commission, 321 Ill. 533; Mark Mfg. Co. v. Industrial Commission, 286 Ill. l.c. 622; Wabash Ry. Co. v. Industrial Commission, 286 Ill. l.c. 198-199. (4) Claimant's last injury and his pre-existing disability must be considered together in order to determine what is the "resulting condition." Sec. 3317, R.S. 1929. (5) Claimant's last injury, in conjunction with his previous disability, being a resultant condition arising out of the last injury, without the happening of which the claimant's present disability could not exist, must necessarily be considered as arising "out of and in the course of" his employment. In re Branconnier's Case, 223 Mass. 273; Duffy's Case, 226 Mass. 131; Schwab v. Emporium Forestry Co., 167 N.Y. App. Div. 614, 216 N.Y. 712; Superior Coal Co. v. Industrial Commission, 321 Ill. 533; Mark Mfg. Co. v. Industrial Commission, 286 Ill. l.c. 622; Wabash Ry. Co. v. Industrial Commission, 286 Ill. l.c. 199. (6) The injury and complete destruction of claimant's left hand must be considered as a total and permanent loss of that member, and cannot therefore be considered as a permanent partial disability, absent a showing that said hand itself still retains some of its normal and natural functions to a degree fairly worth considering. Grammici v. Zinn, 219 N.Y. l.c. 325; Mark Mfg. Co. v. Industrial Commission, 286 Ill. l.c. 622; Superior Coal Co. v. Industrial Commission, 321 Ill. l.c. 538; Dutcher v. American Express Co., 170 N.Y. Supp. l.c. 444-445; Donahue v. McKaig-Hatch, 223 N.Y. 572. (7) The word "use," as used in sec. 3316, subsection (b), R.S. 1929, should be construed to mean industrial use, as any other construction or definition would be out of harmony with the spirit of the Missouri Workmen's Compensation Act, as well as the principles underlying Workmen's Compensation Acts generally. Grammici v. Zinn, 219 N.Y. l.c. 325; Mark Mfg. Co. v. Industrial Commission, 286 Ill. l.c. 622; Superior Coal Co. v. Industrial Commission, 321 Ill. l.c. 538; Dutcher v. American Express Co., 170 N.Y. Supp. l.c. 444-445. (8) The evidence in the record abundantly shows that the claimant has lost the "use" of both his hands. (9) The commission and the circuit court has found as a "fact" that the claimant has lost the use of both hands, and such finding by the commission and the circuit court, where there is sufficient competent evidence to support such finding, is binding on courts of review. Bracco v. May Department Stores Co., 22 S.W. (2d) 822; Hager v. Pulitzer Pub. Co., 17 S.W. (2d) 578; Wheat v. E.A. Whitney & Son, 34 S.W. (2d) 156; Bricker v. Gille Mfg. Co., 35 S.W. (2d) 662. (10) The wages paid claimant by the employer as a gratuity are not chargeable to claimant as a part of compensation due him under the act, and the insurer is not entitled to a credit therefor.

BECKER, J.

This is an appeal from the judgment of the circuit court affirming an award of the Missouri Workmen's Compensation Commission.

It is sufficient for the purposes of this record to state that the employee had sustained the loss of four fingers on his right hand some twenty years prior to September, 1928, and that on September 10, 1928, while in the employ of the defendant employer, he met with an accident resulting in the loss of his left hand. The Commission held that the condition resulting to the employee was a permanent total disability, and because prior to the accident here in question the claimant had suffered a previous disability, allowed him as compensation "two-thirds of that for permanent total disability in other cases," under section 3317, Revised Statutes of Missouri 1929.

The appealing employer and insurer contend here: First, that the award for permanent total disability in this case is not justified in that there is no substantial competent testimony in the record to warrant such finding; second, that under the proper construction of section 3317, Revised Statutes of Missouri 1929, in this case, from the resulting condition there should be deducted the previous disability to the right hand suffered twenty years previous, whereas the Commission, in making its final award, made no such deduction.

We first direct our attention to the question as to whether or not there is sufficient competent evidence in the record to warrant a finding of permanent total disability.

We have in mind that on appeal, in the absence of fraud, the finding of facts made by the Commission within its powers is conclusive and binding and that such finding of facts and award of the Commission have the force and effect of the verdict of a jury. [Leilich v. Motor Car Co., 328 Mo. 112, 40 S.W. (2d) 601; Jones v. Coal Co. (Mo. App.), 46 S.W. (2d) 196; Rolens v. Constr. Co. (Mo. App.), 24 S.W. (2d) 1077; Kinder v. Hannibal Car Wheel & Fdry. Co. (Mo. App.), 18 S.W. (2d) 91.]

Furthermore, in determining whether or not an award made by the...