Herndon v. Robertson Const. Co.

• Decision Date: 29 March 1933
• Docket Number: No. 5165.,5165.
• Citation: 59 S.W.2d 75
• Parties: R.L. HERNDON, RESPONDENT, v. S.A. ROBERTSON CONSTRUCTION COMPANY AND UNITED STATES FIDELITY AND GUARANTY COMPANY, APPELLANTS.
• Court: Missouri Court of Appeals

59 S.W.2d 75

R.L. HERNDON, RESPONDENT, v. S.A. ROBERTSON CONSTRUCTION COMPANY AND UNITED STATES FIDELITY AND GUARANTY COMPANY, APPELLANTS.

No. 5165.

Springfield Court of Appeals. Missouri.

March 29, 1933.

Motion for rehearing denied April 25, 1933.

Appeal from the Circuit Court of St. Clair County. — Hon. W.L.P. Burney, Judge.

AFFIRMED.

Mann, Mann & Miller for appellant.

L.E. Crook and Poague, Silvers & Poague for respondent.

ALLEN, P.J.

This is an action for review of an award by the Workman's Compensation Commission, as provided in section 3340 Revised Statutes of Missouri, 1929.

R.L. Herndon is claimant, S.A. Robertson Construction Company Employer and the United States Fidelity and Guaranty Company Insurer.

It is admitted that claimant sustained an accidental injury arising out of and in the course of his employment by the Construction Company, as a carpenter on a bridge, near Osceola, Mo., which fell and injured claimant October 4, 1928.

Previous to June 26, 1929, Insurer had paid compensation to claimant, at the rate of $20 per week, in the total sum of $614.37. On that day he filed with the commission a claim for additional compensation. Upon the first hearing on that claim the referee made an additional award to claimant, amounting to $160 and said among other things:

"In the opinion of the undersigned referee, said or all disability has ended, there being no permanent disability therefrom."

Thereafter, claimant filed application for review of the award of the referee, by the full commission, upon which review the commission on April 17, 1930 made an award of thirty-three and four-sevenths weeks compensation for temporary total disability at $20 per week and nine and two-sevenths weeks for temporary partial disability at $10 per week, subject to the previous payment of $614.37, leaving a balance due plaintiff of $149.30, from which award claimant appealed to the Circuit Court of St. Clair County, and at the November Term, 1930, the same was affirmed.

On June 12, 1931, claimant filed with the commission his application for review, of the award made by it on April 17, 1930, based on a change of condition of employee after said date.

Upon a hearing of claimant's application for review, in this case, the commission made the following findings of fact, rulings of law, and award:

"This case is before the commission on the ground of a change in condition. On April 17, 1930, a final award was issued providing for the payment of compensation on account of disability, for thirty-three and four-sevenths weeks at $20 per week and for temporary partial disability the sum of $10 per week for nine and two-sevenths weeks. Employee alleges that there has been a change in his condition since the date of said award.

"We find from the evidence that the accident of October 4, 1928, has caused a change in employee's condition for the worse, since our final award of April 17, 1930, and that he now has a fifty per cent loss of use of his back and said condition is permanent. Since loss of use of the back is not specified in section 3315 (a) Revised Statutes of Missouri, 1929, and as 400 weeks in the maximum amount of compensation payable for permanent partial disabilities not specified in said section, employee is entitled to fifty per cent of 400 weeks or 200 weeks' compensation at $20 per week, the insurer to receive credit for $764.37 previously paid for temporary total and temporary partial disability.

"Richardson, chairman, dissenting: I dissent for the reason that it is my opinion from the evidence that the condition of the employee at this time is due to other causes and was not caused by the accident of October 4, 1928."

Defendants appealed to the Circuit Court of St. Clair County. The award of the commissioners was by the circuit court at the November Term, 1931, affirmed, and is appealed to this court.

The points urged by the appellants for reversal are:

First: Appellant urges that the award made by the commission on petition for review in this case, is not justified, under the following words, occurring in section 3315:

"For permanent injuries other than those above specified, the said compensation shall be paid for such periods as are proportionate to the relation which the other injury bears to the injuries above specified, but no such period shall exceed 400 weeks."

The part of the finding of the commission relating to that subject is as follows:

"Since loss of use of the back is not specified in section 3315 (a) Revised Statutes of Missouri, 1929, and as 400 weeks is the maximum amount of the compensation payable for permanent partial disabilities not specified in said section, employee is entitled to fifty per cent of the 400 weeks or 200 weeks' compensation at $20 per week. The insurer to receive credit for $764.37, previously paid for temporary total and temporary partial disability.

"The wording of the finding above compared with the words of section 3315 (a) Revised Statutes of Missouri, 1929, shows that there are no injuries specified in section 3315 (a) upon which a proportionate relation to the injury of claimant may be estimated or compensation fixed, hence as is said in the case of Johnson v. Kruckemeyer, 29 S.W. (2d) number 5, 730 the "Workmen's Compensation Commission was vested under the statute with discretion in matter of determining proportion of permanent injury to injuries definitely specified," which was in its discretion done by the commission in this case. Appellant has no cause for complaint on account of the credit on the allowance last made by the commission, since it was the beneficiary under that provision, and the commission was by section 3312 (c) Revised Statutes of Missouri, 1929, required to allow credit for all money previously paid.

"The employer shall be entitled to credit for wages paid the employee after the injury, and for any sum paid to or for the employee or his dependents on account of the injury, except for liability under section 3311," which is for medical, surgical and hospital treatment.

Second: Appellant contends that the court erred in overruling defendant's motion to require the compensation commission to certify to the circuit court in this case, a transcript of the evidence and proceedings had in the matter of the award made April 17, 1930, together with a copy of said award, all of which, however, had been done on the previous appeal, and was at the hearing of this case, on file in the Circuit Court of St. Clair County; and was so admitted by the employee, and employer and insurer, and with the consent of each of them was made a part of the record in this case, to be considered by the court herein. It is true each of the parties alternately offered objections when the other consented to the admission, likewise each of them in the process of agreement consented, and the court overruled the motion of defendant. If there was error, each of the parties invited it, and cannot now be heard to complain.

"A party is not permitted to invite error on the trial and then assign such error for a reversal of the judgment." [Meffert v. Lawson, 287 S.W. 610, 315 Mo. 1091.]

The circuit court properly considered the record of the previous appeal as a part of the record in this case.

Third: The third point urged by the defendants is that there was not sufficient, competent evidence offered by the claimant, to sustain the increased award on review.

The testimony for plaintiff was in brief, as follows:

R.L. Herndon (claimant) "My condition is worse now than when the commission made the award, April 17, 1930. I can't stoop as well as I could, nor lift as much as I could or be on my feet as much as I could at that time. The movement of my legs is more limited now than it was at that time, and causes me more pain than it did then. At the time of the former hearing I weighed about 182 pounds and at this time only weigh about 152 pounds. At night I have pain and cannot lay on either side at night, and my back and hips hurt whichever way I lay. This condition is worse than at the time of the former hearing."

The claimant is a competent witness in his own behalf. His testimony was supported by four physicians, all of whom had examined him from time to time, two of them commencing from the date of the original injury; all of them knew the history of the case, and heard the statements of hypothetical questions admitted by the commission, and gave it as their opinion that his condition was due to the injury mentioned. Their evidence was as follows:

DR. R.S. HOLLINGSWORTH: "I am acquainted with this man's physical history, since the accident. From hearing the evidence here and from the condition I now find in the patient, I feel that his condition at the present time is due to traumatism, producing what we call traumatic lumbago. It evidently must be due to the injury he sustained at the time of this fall."

DR. STEBBINS: "In my opinion, Mr. Herndon is completely disabled so far as manual labor is concerned. He has serious limitation of the function of the muscles through the region of his limbs and back. I credit Mr. Herndon's condition to that injury."

DR. S.B. HUGHES: "I am acquainted with R.L. Herndon. I made a physical examination of him about three or four weeks ago. I found extreme limitation of the spine. Considering Mr. Herndon's previous occupation as a laborer, I should say he is totally disabled. I base this upon my examination of motion and stiffness. The lumbar vertebrae are disabled entirely. Taking into consideration the fact of lifting, he has enough rigidity to prevent lifting anything. I should say with the history of the injury and the absence of any cause for lumbago, the injury would be responsible for it. Mr. Herndon has no apparent foci of infection. I do not think he will get better because if he had simple lumbago it would pass away and he wouldn't have so much limitation of motion."

DR. E.W. SULLIVAN: "I first saw Mr....