Hammack v. West Plains Lumber Co.

• Citation: 30 S.W.2d 650,224 Mo.App. 570
• Parties: GEORGE HAMMACK, RESPONDENT, v. WEST PLAINS LUMBER AND LUMBERMEN'S MUTUAL CASUALTY COMPANY, APPELLANTS
• Decision Date: 29 July 1930
• Court: Court of Appeal of Missouri (US)

30 S.W.2d 650

224 Mo.App. 570

GEORGE HAMMACK, RESPONDENT, v. WEST PLAINS LUMBER AND LUMBERMEN'S MUTUAL CASUALTY COMPANY, APPELLANTS

Court of Appeals of Missouri, Springfield

July 29, 1930

Appeal from Howell County Circuit Court.--Hon. Will H. D. Green Judge.

REVERSED.

Judgment reversed.

Robert S. Harbison for appellants.

(1) Finding of the compensation commission on conflicting evidence is conclusive. Laws 1927, p. 512, sec. 44; State ex rel. Brewen-Clark Syrup Co. v. Mo. Workmen's Compensation Commission, 8 S.W.2d 897, (Mo. Sup.); Dreyfus v. Lutz Co. (N.J.), 142 A. 433; Bell & Zoller Mining Co. v. Industrial Commission et al. (Ill.), 153 N.E. 580; Byrant v. Central Foundry Co. (Ala.), 166 So. 345; In re Sanderson's, 113 N.W. 335 (Mass.) . (2) The appellate court will not disturb ruling of compensation commission based on any legal evidence or any reasonable view or inference therefrom and will look only to evidence most favorable to support fact finding. Cotter v. Valentine Coal Co., 14 S.W.2d 660 (K. C App.); Woodward Iron Co. v. Jones, 116 So. 425; U.S. F. & G. Co. v. Price (Ala.), 114 S.E. 146; Sloss-Sheffield Steel & Iron Co. v. House, 116 So 167. (3) Denial of compensation will not be disturbed where the finding for claimant is not absolutely demanded. Brown v. U.S. F. & G. Co. (Ga.), 144 S.E. 343.

Homer Rinehart for respondent.

(1) The findings of fact and award of compensation commission have the force and effect of the verdict of the jury, and in the same way become the basis for a court judgment. Sections 40, 41, 44 and 45, Workmen's Compensation Act, Laws of 1927, pp. 511, 512; Kinder v. Hannibal Car Wheel & Foundry Co., 18 S.W.2d 92; State ex rel. Brewen Clark Syrup Co. v. Mo. Workmen's Compensation Commission, 8 S.W.2d 899; 28 R. C. L., page 828. (2) The circuit court has authority on an appeal from the award of the commission to remand the cause for a rehearing. Section 44, Workmen's Compensation Act, p. 512, Laws of 1927; Broadway & Fourth Avenue Realty Co. v. Metcalfe, 20 S.W.2d 988; South Mountain Coal Co. v. Haddix, 281 S.W. 493; B. F. Avery & Sons v. Carter, 266 S.W. 50; Noe v. Noe, 17 S.W.2d 405. (3) The appellants in this case failed to bear the burden of adducing sufficient competent evidence fairly justifying the inference that the respondent had fully recovered from the effect of his injury at the date of the hearing, on November 20, 1928, and the circuit court had the right and authority to remand the cause for further hearing. Smith v. Levis-Zukoski Mercantile Co., 14 S.W.2d 473.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

This action arose under the State Workmen's Compensation Act. The claimant, George Hammack, filed a claim against defendants. This claim was heard by a member of the commission at West Plains and he found that the claimant had recovered from the injury and had been paid all that was due him. Claimant appealed to the full commission and that body upheld the finding of the single commissioner. Claimant then appealed to the circuit court of Howell county. That court reversed the finding of the commission and remanded the case to them for further hearing. Defendants then appealed to this court.

The ground upon which the circuit court remanded the case to the commission for further hearing is not preserved in this record and if his action can be upheld upon any legal ground, it will be our duty to affirm his action. We have carefully examined the record but fail to find in it anything that would justify setting aside the finding of the commission. The defendants admitted liability to plaintiff for compensation and had paid him on that account a total of $ 440.55 and then stopped the payments. The commission found that claimant had been paid all to which he was legally entitled. Whether or not the commission correctly so found depended entirely on the evidence as to the extent and durability of claimant's injuries. On those questions the evidence was conflicting. That for the claimant tended to show that he had not fully recovered and was entitled to more than had been paid him. The evidence for the defendants tended to show that he had fully recovered and had been fully paid. On this conflicting evidence the commission found for defendants. Their finding stands, in a general way, on the same basis as the verdict of a jury in an ordinary civil action. [Kinder v. Hannibal Car Wheel & Foundry Co. (St. Louis Court of Appeals), 18 S.W.2d 91; State ex rel. Brewen-Clark Syrup Co. v. Missouri Workmen's Compensation Commission (Mo. S.Ct.), 8 S.W.2d 897, 899.]

The statute, Acts 1927, p. 512, section 44, expressly provides that when an appeal is taken to the circuit court "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 . . . . (3) That the facts found by the commission do not support the award. (4) That there was not sufficient...