Hendrickson v. Riss & Co., 18974.

• Decision Date: 03 May 1937
• Docket Number: No. 18974.,18974.
• Court: Missouri Court of Appeals
• Parties: HENDRICKSON v. RISS & CO., Inc.

104 S.W.2d 1046

HENDRICKSON v. RISS & CO., Inc.

No. 18974.

Kansas City Court of Appeals. Missouri.

May 3, 1937.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Proceeding under the Workmen's Compensation Act by Gertrude Hendrickson for the death of Alfred Hendrickson, her husband, claimant, opposed by Riss & Co., Inc., employer. From a judgment of the Circuit Court reversing an award of the Workmen's Compensation Commission denying compensation, the employer appeals.

Judgment of the Circuit Court reversed, and judgment of the Workmen's Compensation Commission affirmed.

M. D. Campbell, Jr., of Kansas City, for appellant.

Kennard & Gresham, F. M. Kennard, and Walter J. Gresham, all of Kansas City, for respondent.

SHAIN, Presiding Judge.

This is an action that originated before the Workmen's Compensation Commission of Missouri.

The respondent herein on March 12, 1936, filed a claim for compensation for the death of her husband. The death of the husband is alleged as the result of an accident arising out of and in the course of employment. Riss & Co., a corporation, is the employer and appellant herein.

There is no question presented as to the parties being under the act and no question as to respondent being the beneficiary. The employer denied that the husband of claimant died as the result of an accident arising out of and in the course of employment.

There was a hearing before Commissioner Shaw in Kansas City, Missouri, on May 18, 21, and June 10, 1936. On June 10, 1936, Commissioner Shaw found in favor of the employer and against claimant, compensation being denied.

Thereafter an application for review was made by claimant and there was a hearing had before the full commission in Jefferson City, Mo., on Friday October 9, 1936, and on October 30, 1936, the award of the full commission was made wherein the full commission made finding and award as follows:

"We find from the evidence that the death of Alfred Hendrickson was not the result of the accident of July 13, 1936. Therefore, compensation must be and is hereby denied.

"Affirming on review award dated August 10, 1936.

"Given at the City of Jefferson, State of Missouri, this 30th day of October, 1936.

                                  "Edgar C. Nelson
                         "Member, Missouri Workmen's
                            Compensation Commission
                               "Orin H. Shaw
                         "Member, Missouri Workmen's
                            Compensation Commission
                               "Jay J. James
                         "Member, Missouri Workmen's
                            Compensation Commission.
                  "A true copy. Attest:
                  "[Seal] Spencer N. Givens,
                        "Secretary of said Commission."
                

From above finding and award the claimant, respondent herein, appealed to the circuit court of Jackson county, Mo. Thereafter, and on December 24, 1936, and at the November term of the circuit court of Jackson county, Mo., this cause was taken up and heard in said court and there is shown of record the following, to wit:

"This cause coming on regularly to be heard, claimant appearing by her attorneys, Kennard & Gresham, and defendant Riss and Company, appearing by its attorney, M. D. Campbell, Jr., and the cause was submitted to the Court upon the transcript of the record and briefs of the respective parties. And the Court, having considered the record and the briefs, finds that there is not sufficient competent evidence in the record to warrant the making of the award of the Missouri Workmen's Compensation Commission and finds that said commission erred in holding that claimant is not entitled to compensation.

"Wherefore, it is, by the court, ordered and adjudged that the award be reversed and the cause remanded to the Missouri Workmen's Compensation Commission, together with the findings herein for proceedings not inconsistent herewith."

From the above orders and decrees of the circuit court, the employer duly appealed.

The only question presented for review in this case is as to whether or not the circuit court erred in finding there was not sufficient competent evidence to warrant the Workmen's Compensation Commission in making an award denying compensation.

A circuit court, in reviewing workmen's compensation cases, is as restricted as are appellate courts in passing upon such cases.

The rule as to conclusion as to facts found has been so often repeated in our court decisions that it almost seems needless to here repeat. However, as a premise for conclusions we repeat the rule as follows: "Any of the commission's findings of fact which are supported by substantial evidence are conclusive." Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.(2d) 551, 554.

Unlike other cases appealed to the circuit court from inferior jurisdictions, compensation cases are not tried de novo, and on appeal to this court from the circuit court we must go to the record of proceedings had before the commission and determine the question of whether or not the award is supported by substantial evidence. In performing this duty, we must, if we conclude there is substantial evidence to support, ignore most potent conflicting evidence that might, even if we were the trier of fact, induce from us conclusions contradictory to the finding of facts by the commission.

It appears from the evidence that Alfred Hendrickson, the husband of claimant, had an accident on July 13, 1936, wherein he received multiple fractures of the pelvis with a backward dislocation of the left femur. It is shown that Hendrickson was a blacksmith and was in the employ of appellant when he received the aforesaid injuries and there seems to be no question raised herein as to him having received said injury while an employee and while employed in due course of employment.

It is shown that Mr. Hendrickson was taken to a hospital the same day of injury. In the direct examination of Dr. Kuhn, his attending physician, the following questions and answers appear.

"Q. How long was he under your treatment in the hospital? A. He was admitted on 7/13/35 and he was dismissed on 8/12/35 to go to his home and follow my directions. I think that he was again admitted to the hospital on 8/19/35, and he left on 9/2/35. This second admission had to do with a pyelitis, and inflammation of his ureter in the left kidney.

"Q. And the left kidney? A. Involving the left kidney.

"Q. Involving also the left kidney. A. From that he recovered and went to his home and was not again admitted to the hospital at all. I saw him numerous times at the office."

In the cross-examination of Dr. Kuhn the following questions, answers, and proceedings are shown:

"Q. Have you in considering the treatment you rendered the deceased in this case, covering the period of July, 1935, through January, 1936, would you consider that if this man died of a disease called lobar pneumonia or influenza or any such similar lung disease, say that the accident of July 13, 1935, or the resulting conditions of that accident, they contribute in any way to that death?

"Mr. Kennard: Just a moment. I object to that for the reason there is no evidence in the record that this man died of lobar pneumonia or any other kind of pneumonia or of any particular disease.

"Mr. Campbell: I would like to produce evidence that will substantiate my question, and just simply save the doctor coming back over here.

"The Commissioner: The objection will be over-ruled if you will produce that evidence Mr. Campbell. (To which ruling the claimant by counsel then and there duly excepted and still excepts.)

"Mr. Campbell: All right, will you read the question please? (Whereupon the reporter read the question.)

"The Witness: I would say no.

"Q. Doctor, did I understand you to say that there was no evidence of kidney injury shortly after the accident originally? A. No, there was not.

"Q. Was there any evidence of injury to the liver? A. No.

"Q. Did you find any evidence of injury to the lungs, either one? A. No, no.

"Q. Any throat involvement? A. No.

"Mr. Campbell: You may inquire."

There was evidence to the effect that Mr. Hendrickson had lobar pneumonia and died therefrom.

It will be observed that the above testimony comes from the attending physician at the time the husband of claimant was being treated for injuries received in the accident and who treated him till in the early part of February, 1936.

It is shown that claimant and her husband, on February...