Henderson v. Laclede Christy Clay Products Co.

• Decision Date: 16 December 1947
• Docket Number: No. 27344.,27344.
• Citation: 206 S.W.2d 673
• Parties: HENDERSON v. LACLEDE CHRISTY CLAY PRODUCTS CO. et al.
• Court: Missouri Court of Appeals

206 S.W.2d 673

HENDERSON v.LACLEDE CHRISTY CLAY PRODUCTS CO. et al.

No. 27344.

St. Louis Court of Appeals. Missouri.

December 16, 1947.

Rehearing Denied January 13, 1948.

Appeal from St. Louis Circuit Court; James E. McLaughlin, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Fred Henderson opposed by Laclede Christy Clay Products Company, employer, and American Mutual Liability Insurance Company, insurer, to recover compensation for permanent partial disability.A referee of the Industrial Commission awarded employee 120 weeks of compensation, and the commission on review reduced the award to 20 weeks.The employee appealed to the circuit court, and from its judgment, the employer and insurer appeal.

Judgment of the circuit court reversed and finding and award of the commission affirmed.

Albert I. Graff, Courtney S. Goodman and Malcolm I. Frank, all of St. Louis, for appellants.

Lee J. Placio and Chelsea O. Inman both of St. Louis, for respondent.

HUGHES, Judge.

This appeal is from the judgment of the Circuit Court of the City of St. Louis, reversing the finding and award of the Industrial Commission of Missouri, Division of Workmen's Compensation Commission, in favor of the employee for permanent partial disability, and fixing his compensation at $20 per week for a period of 20 weeks.The referee before whom the issues were tried made a finding of fact that the employee had sustained permanent partial disability to the extent of 30% of loss of function of his body as a whole, and based on such finding made an award of compensation for 120 weeks at $20 per week.On application of the employer and insurer the finding and award was reviewed by the Commission, which made a finding of fact that the employee had sustained permanent partial disability to the extent of 5% of his body as a whole, and based thereon made a final award to the employee of $20 per week for 20 weeks.From this final award the employee appealed to the Circuit Court, wherein the judgment was that claimant had suffered an accident arising out of or in the course of his employment, but that the award of $20 per week for a period of 20 weeks be reversed, and remanded the case to the Commission.From this judgment the employer and insurer appeal.

Appellants present two points for our consideration:

First, that the judgment of the Circuit Court reversing the final award of the Commission should be affirmed, but for the reason that claimant did not suffer an accident arising out of or in the course of his employment.

Or, second, that the judgment of the Circuit Court should be reversed and the final award of the Commission be affirmed.

The claim for compensation was filed on September 1, 1945, for an accident to the employee alleged to have been sustained on March 3, 1944, injuring the lower part of his back, his right hip and right leg, and, as to how the accident happened, that employee "was pulling iron bar down and slipped and hit back against another press."During the course of the hearing before the referee the claim was amended to show in addition to the back injury, "traumatic neurosis," and further amended to allege aggravation of arthritis.

It was admitted that on March 3, 1944, Laclede Christy Clay Products Company was a major employer operating under the provisions of the Missouri Workmen's Compensation Law, and that its liability under said law was fully insured by American Mutual Insurance Company; that on or about March 3, 1944, Fred Henderson was an employee of the Laclede Christy Clay Products Company and was working under the provisions of the Missouri Workmen's Compensation Law, and that his weekly average wage was in excess of $30.The employer and insurer denied that on or about March 3, 1944, Fred Henderson sustained an accident arising out of or in the course of his employment.

Claimant testified that on March 3, 1944, he was working at one of eight clay pressing machines, each of which was of iron and about 5 feet high and 16 feet long; his work was to open the machine and pull out plates filled with clay, and this he did by using an iron bar about 5 feet long and weighing about 30 pounds; that on the occasion in question while he was at his work and using the iron bar, the threads on an iron nut, against which he was pulling, slipped, and caused him to lose his balance and be thrown backwards against another press; that his back struck the other press about even with the top of his hip joint, and he then fell to the concrete floor, landing on his right side.Three other employees were near claimant at the time he says the accident occurred; one of these employees was working at the same press with claimant, and the other two were working at another press in the same room.None of them were called upon to testify.In support of their contention that the claimant did not suffer an accident arising out of or in the course of his employment, appellants rely upon contradictions in claimant's testimony and prior statements he is alleged to have made, in that claimant says that the accident occurred while he was working at the press machine and was caused by the lever slipping and causing him to fall, and further says that he did not work after March 3 and until March 13th because of a strike of the employees, and did not see the company doctor until March 13th, on which day he had been put to work lifting sacks filled with heavy material, and his back hurt so bad that he went to the office of the employer and the timekeeper sent him to the company doctor; whereas, a summary introduced in evidence of the employer's time sheets shows that claimant worked throughout the week following March 3, and hence there was no strike, and the company doctor testifies that the claimant came to his office on March 3 and gave as a cause of the injuries that he was lifting sacks filled with potter's flint when a pain struck him in the back.The referee, commissioners, and the circuit judge, all believed that claimant had an accident arising out of and in the course of his employment, in that, while he was working on a punch press tightening a bolt, threads slipped, causing him to fall backwards so that his back hit another press.

The Appellate Court is not bound by the former rule that it must uphold the finding and award of the commission if there is any substantial evidence to support it.This is true because of Section 22, Article V, Constitution of Missouri of 1945, Mo.R.S.A., which provides as follows: "All final decisions, findings, rules and orders of any administrative officer or body existing under the Constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record."

However, "This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal.But it does authorize it to decide whether such...