Hardwell v. St. Louis Smelting & Refining Co.

• Court: Kansas Supreme Court
• Writing for the Court: WEDELL, Justice.
• Citation: Hardwell v. St. Louis Smelting & Refining Co., 146 Kan. 870, 73 P.2d 1120 (Kan. 1937)
• Decision Date: 11 December 1937
• Docket Number: 33554.
• Parties: HARDWELL v. ST. LOUIS SMELTING & REFINING CO.

73 P.2d 1120

146 Kan. 870

HARDWELL v. ST. LOUIS SMELTING & REFINING CO.

No. 33554.

Supreme Court of Kansas

December 11, 1937

Syllabus by the Court.

In compensation proceeding, testimony of workman that he was injured in moving a boulder, if believed, was sufficient to support finding that an accident occurred (Gen. St.1935 44-501 et seq.).

The strict rule concerning circumstantial evidence as applied to other cases does not prevail in compensation proceedings (Gen.St.1935, 44-501 et seq.).

In compensation proceeding, evidence held sufficient to establish that workman, who fell while pushing boulder in employer's mine, suffered accidental injury "arising out of and in course of employment" which resulted in total disability, the duration of which was problematical (Gen.St.1935, 44-501 et seq.).

Accidental injuries are compensable though accident only serves to aggravate or accelerate existing disease (Gen.St.1935, 44-501 et seq.).

In compensation proceeding, it was not necessary for injured workman, in order to recover, to prove duration of disability by medical testimony (Gen.St.1935, 44-501 et seq.).

In an appeal from a judgment awarding compensation for total disability of problematical duration resulting from an injury sustained by claimant while working in appellant's lead and zinc mines, the record examined, and held, the evidence was sufficiently substantial to establish: (1) The workman suffered an accidental injury which arose out of and in the course of his employment; (2) the injury resulted in total disability the duration of which was problematical.

Appeal from District Court, Cherokee County; Vernor J. Bowersock Judge.

Proceeding under the Workmen's Compensation Act by Charles M Hardwell, claimant, opposed by the St. Louis Smelting &amp Refining Company, employer and self-insurer. From a judgment awarding the claimant compensation, after an appeal from a decision of the commissioner denying the claim, the employer appeals.

Judgment affirmed.

Al. F. Williams, of Topeka, and Don H. Elleman and Paul H. Elleman, both of Columbus, for appellant.

Charles Stephens and Jerome Harman, both of Columbus, for appellee.

WEDELL Justice.

This was a workmen's compensation case. The commissioner denied the claim and the workman appealed. The district court found claimant was totally disabled and that the duration of his disability was problematical. It is from this finding and award that respondent, a self-insurer, appeals.

The sole contention on appeal is that there was no substantial evidence to support the finding the workman suffered an accidental injury, or, if he suffered such injury, that disability resulted therefrom. Respondent concedes this court is concerned only with evidence which supports or tends to support the findings of the trial court and that our jurisdiction is restricted solely to questions of law. It contends, however, the question of whether the findings and award are supported by substantial competent evidence is a question of law. That such contention is correct is conceded by the workman. There is no objection to the competency of evidence offered. Was it substantial?

The workman was employed in respondent's lead and zinc mines in Cherokee county. In his written claim he fixed the date of the accident as July 23, 1936, but on the hearing it was placed one week later, or on July 30th. If the trial court believed, and it did, that the workman was actually injured as a result of an accident growing out of and in the course of employment, the date in the instant case becomes immaterial. He claimed he suffered an injury to his right side when he slipped on some wet boards in an attempt to move a boulder weighing about 600 pounds, and three or four feet in diameter. The hearing before the commissioner was held on November 20, 1936. Two lay and two medical witnesses testified in his behalf. The only direct testimony of the fact an accident occurred was adduced by the workman. No other person was in the immediate vicinity of the accident. One of the lay witnesses was his wife, who testified concerning his previous good health and his condition and conduct as she observed it following the alleged accident. The other lay witness was a brother-in-law of the workman who testified in substance: At a later period he helped the workman clean out his well; the workman made exclamations of pain with reference to his side and said his side was bothering him and he would have to quit; the workman had shoveled some sludge for another employer during the month of August; he did not appear able to really do a day's work; he would hold his hand on his side like this (indicating); he didn't fill his shovel as the other boys did; he had to sit down part of the time; he said his side was hurting; none of the workers on this shoveling job worked constantly but all of them as well as claimant took rest periods.

Dr. Brookhart was one of the witnesses called by the workman. His testimony pertained to an examination made on September 5, 1936. He testified in part:

"I examined the region where he complained of pain. I found rigidity of the muscles over the right side, over the region of the liver and stomach.

"Q. Did you reach a conclusion of your own, without regard to what he said, from this rigidity of the muscles there, as to whether or not there was an abnormal condition there? A. Yes, sir.

"Q. What was your opinion? A. My opinion was that he had some irritation in the abdominal cavity in the region of the liver and stomach."

Dr. Brookhart was then asked some hypothetical questions to which the record discloses no objection. The questions were based on a chronological development of the evidence offered on behalf of the workman. The questions and answers were:

"Q. But assuming these facts are true; that sometime late in July, before that time, he had been able to do heavy manual labor and was rather an unusually strong man and a good shoveler, shoveling lead and zinc ore into cans and pushing them down some distance to the shaft and received his pay by the can, loading and moving down to the shaft from something like fifty to sixty cans a common shift, and on this particular day late in July he was prying on a boulder, large boulder, which he described as being three feet through and weighing 600 pounds, and he was prying on that boulder to get it off of some boards when he slipped and fell on his right side on the boards and some small boulders there. Immediately he suffered pain and felt faint and that was followed by nausea and sickness of the stomach. He remained in there about another half hour, this occurring about 3:30 and four o'clock was quitting time, and he went out at quitting time at the time they pulled the men up and when not pulling ore, and got in his car and rode home, still feeling fainty and sick at his stomach, and when he got home he ate a little stewed tomatoes and drank some coffee, at least part of a cup of coffee, and a little bread, and then sat down in a rocker and fainted away. I don't know how long he was in that condition, but anyway, after he came to himself he got on the bed and vomited some more there, some of it on the floor and some in the pan, and it showed a little blood. He suffered this pain for several days. We will say this occurred on Thursday evening, and on the following Monday the company sent Dr. Connell over to see him and the doctor came for some two or three days after which time the claimant was hauled in a car to Dr. Connell's office. The jolt of the car would set up a painful condition in the right side. Assuming further that he never had had any such pain before, any such experience before, and always had been a strong and healthy man and a very strong man in doing manual labor. Assuming all of those facts as hypothetical and taking into account what you found there and the rigidity of the muscles, have you an opinion whether or not what occurred when he was prying on the boulder and slipped was the cause of the condition, his impaired condition, that followed? (Italics inserted.) A. Yes.

"Q. Give that opinion to the commissioner. A. Those facts being true, it would be my opinion that the injury received caused his trouble.

"Q. Let me ask you. Such an injury as I have described here and the pain following and all of these conditions given you in the hypothetical question, did you reach a conclusion of your own that there was some impairment there due to that injury? A. Yes.

"Q. Based on the history and what you found? A. Yes, sir.

"Q. And assuming further it was followed by nausea and he felt fainty and sick to his stomach as described, have you an opinion whether or not he suffered some impairment in that region where you found the rigidity of the muscles? A. Yes; all of those things being true, I have.

"Q. And that opinion is what as to whether or not that was caused by this fall? A. It was caused by his fall."

It will be observed the testimony of the doctor given prior to his answer to the hypothetical questions revealed: He examined the workman on the right side over the region of the liver and stomach and found a rigidity of the muscles; he reached a conclusion of his own, without regard to what the workman said, that an abnormal condition existed at that place on the...