Kateman v. Zink

• Decision Date: 08 May 1944
• Citation: 180 S.W.2d 253,238 Mo.App. 253
• Parties: Quentin Kateman, Employee, Respondent, v. Royce Zing, Employer, et al., Appellant
• Court: Kansas Court of Appeals

180 S.W.2d 253

238 Mo.App. 253

Quentin Kateman, Employee, Respondent, v. Royce Zing, Employer, et al., Appellant

Court of Appeals of Missouri, Kansas City

May 8, 1944

Appeal from Cooper County Circuit Court; Hon. Sam C. Blair, Judge.

Reversed and remanded.

George A. Hodgman for appellants.

(1) There is not sufficient competent legal evidence in this record on the existence of permanent total disability to warrant an award therefor; the uncontroverted legal evidence does not satisfy the statutory definition of total disability. Sec. 3305(e), R. S. Mo. 1929, which is now Sec 3695(e), R. S. Mo. 1939, and cases cited below. The construction of Section 3305 (e), R. S. Mo. 1929, adopted in this case contravenes Section 655, R. S. Mo. 1929 (same section, 1939 revision), which requires the construction of the statute according to its plain, ordinary and usual meaning; the construction adopted is contrary to the law settled by our Supreme Court. Sec. 655, R. S. Mo. 1929 (same section 1939 revision), and cases cited below. In absence of ambiguity the words and phrases of a statute must be taken in their plain, ordinary and usual sense. Where the words are clear and definite, a court shall not interpolate elements not specified and there is no reason for construction or interpretation by a court and no need for a strict or a liberal construction. A court interpretation or construction of a statute is called for only when the legislative intent is not clearly expressed and statutory definitions are binding upon a review court unless such a definition would cause the statute to fail of its expressed purpose. State ex rel. Aetna Life Ins. Co. v. Lucas, 348 Mo. 1153, 153 S.W.2d 10 (and Missouri cases cited therein); Berry-Kofron Dental L. Co. v. Smith, 345 Mo. 922 137 S.W.2d 452; State ex rel. Mills v. Allen, 344 Mo. 743, 128 S.W.2d 1040; Sayles v. K. C. Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046, 1051; State ex rel. Cobb v. Thompson, 319 Mo. 492, 5 S.W.2d 57, 59; State ex rel. Liggett & Myers T. Co. v. Gehner, 316 Mo. 1075, 282 S.W. 1028; State ex rel. Jamison v. Ry Co., 318 Mo. 285, 300 S.W. 274, 277; State ex rel. Cons. School Dist. No. 9, Bates Co., v. Lee, 303 Mo. 641, 262 S.W. 344, 346; Clark v. K. C., St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40, 44. (2) Under the decisions of our appellate courts a finding of permanent total disability is erroneous; it is contrary to all the fact testimony, which shows sustained working ability of the injured, and it cannot be sustained as a matter of law without a legal sufficiency of competent evidence. Valentine v. General Paper Stock Co., 37 S.W.2d 457; Vollet v. Federal Brilliant Sign Co., 49 S.W.2d 201; Hohlstein v. St. L. Roofing Co., 328 Mo. 899, 49 S.W.2d 226; Pellitteri v. Blackmer & Post Pipe Co., 227 Mo.App. 145, 50 S.W.2d 662; Kinyon v. Kinyon, 230 Mo.App. 623, 71 S.W.2d 78; Johnson v. Scott Co. M. Co., 101 S.W.2d 123; Hardt v. City Ice & Fuel Co., 109 S.W.2d 896; Maddux v. K. C. Pub. Service Co., 100 S.W.2d 535, 111 S.W.2d 208; Caldwell v. Melbourne Hotel Co., 116 S.W.2d 232. (3) The unsworn medical report of Dr. Mueller which was added to the record after the final hearing with no opportunity furnished to object to its admission in whole or in part constituted inadmissible and improper evidence which would be subject to exclusion upon objection in any trial. A medical report, even if incorporated in the record, is merely ex parte and hearsay and not to be entitled to be regarded as of substantial force. Holliday v. Walls, 64 S.W.2d 318, 319; Van Bibber v. Swift & Co., 286 Mo. 317, 337, 228 S.W. 69, 76. Incompetent evidence will not support an award under the Workmen's Compensation Act. Woods v. American Coal & Ice Co., 25 S.W.2d 144; Wills v. Berberich's Delivery Co., 339 Mo. 856, 98 S.W.2d 569; Nordhaus v. Lechtman Prtg. Co., 84 S.W.2d 422. The medical conclusion of Dr. Mueller is based only on the facts he had and partake of the character of an expert's answer to a hypothetical question. A hypothetical question is inadmissible and not competent evidence if it is not based upon all the material facts in evidence. De Donato v. Wells, 328 Mo. 448, 41 S.W.2d 184, 82 A. L. R. 1331; Root v. K. C. S. Ry., 195 Mo. 348, 92 S.W. 621, 6 L. R. A. (N. S.), 212; Powell v. Union Pac. R. Co., 255 Mo. 420, 164 S.W. 628; Hahn v. Hammerstein, 272 Mo. 248, 198 S.W. 833; Seelig v. M. K. & T. Ry. Co., 287 Mo. 343, 230 S.W. 94. The question of whether an opinion of a medical expert is based on sufficient facts is a question of law for the court. Hall v. Merc. Trust Co., 332 Mo. 802, 59 S.W.2d 664; Kimmie v. Terminal R. R. Assn., 334 Mo. 596, 66 S.W.2d 561.

Edward C. Lynch for respondent.

The findings of fact of the Compensation Commission has the force and effect of the verdict of a jury, and in determining the sufficiency of the evidence to sustain such findings of fact the court will look only to the evidence most favorable, adding thereto all reasonable inferences of fact to be drawn therefrom to support such finding. Jackson v. General Metals Refining Co. (Mo. App.), 43 S.W.2d 865; Kaiser v. H. C. Merry, Inc. (Mo. App.), 79 S.W.2d 474. The weight and credibility of the evidence is a matter solely to be passed on by the Commission and is not for the reviewing court to pass on. Noto v. Hemp & Co. (Mo. App.), 83 S.W.2d 136; Gantz v. Brown Shoe Co. (Mo. App.), 90 S.W.2d 168. The findings and award of the Commission in the absence of fraud, and when supported by competent evidence, is final and conclusive on appeal. Butner v. L. W. Hayes Construction Co. (Mo. App.), 60 S.W.2d 681; Gillick v. Fruin-Colnon Construction Co. (Mo.), 65 S.W.2d 927. The finding by the Commission of the nature, extent, and duration of a disability is a finding of fact. Wheat v. E. A. Whitney & Sons (Mo. App.), 34 S.W.2d 158; Vollet v. Federal Brilliant Sign Co. (Mo. App.), 49 S.W.2d 201; Wilson v. Brownfield Construction Co. (Mo. App.), 74 S.W.2d 377. The determination of percentage is within the special province of the Commission, and not within the courts. Bumpus v. Mossman Construction Co. (Mo. App.), 145 S.W.2d 461. The compensation claimant need not show the extent of disability with mathematical exactness. Murphy v. W. J. Lynch Co. (Mo. App.), 57 S.W.2d 685. Evidence whether evenly balanced is determinable not as a matter of law but is dependent upon the weight that the triers of fact give it. Williams v. Planters Realty Co. et al. (Mo. App.), 160 S.W.2d 480. The courts have no power to make findings of fact. Wilson v. Brownfield Construction Co. (Mo. App.), 74 S.W.2d 377. The power of the Commission in passing upon the evidence is such that it can disregard and disbelieve the evidence of a party even if undisputed and to some extent corroborated by another witness. Webster v. Boyle Pryor (Mo. App.), 144 S.W.2d 828. The Supreme Court has set out the rule that evidence in a compensation case must be reasonably and liberally construed in favor of the employee. Pruitt v. Harken, 43 S.W.2d 769; Wall v. Lemons, 51 S.W.2d 199. The finding of the Commission is conclusive if supported by any competent evidence. Moyer v. Oreck Coal Co. (Mo. App.), 82 S.W.2d 924; Buesing v. Moon Motor Car Co. (Mo. App.), 54 S.W.2d 735; Shroyer v. Live Stock Commission (Mo. App.), 61 S.W.2d 713; Stepaneck v. Mark Twain Hotel (Mo. App.), 104 S.W.2d 765. The Commission is chosen with the ability of its members to determine the nature and extent of disability from seeing and listening to the claimants. Carr v. Rowan (Mo. App.), 55 S.W.2d 727. Testimony of a party that he is unable to work constitutes competent and substantial evidence of that fact. Benson v. Smith (Mo. App.), 38 S.W.2d 749; Patterson v. Springfield Traction Co. (Mo. App.), 163 S.W.2d 955. The rule of sufficiency of evidence as to disability in compensation cases is the same as that in negligence cases. Burns v. Polar Wave Ice Co. (Mo. App.), 187 S.W.2d 145; Bradford v. City, 214 S.W.2d 281; Frazier v. St. Louis, etc., Co. (Mo. App.), 130 S.W.2d 485. Many times it has been held that medical testimony is not binding upon the Commission, and its weight and value is exclusively for the Commission to determine. Schroeder v. Western Union Telegraph Co. (Mo. App.), 129 S.W.2d 917; Lunsford v. St. Johns Hospital (Mo. App.), 107 S.W.2d 163; Maddux v. Kansas City Public Service Co., 111 S.W.2d 208. Expert opinion evidence of a physician is substantial evidence. Schmitz v. Sellers & Marquis Roofing Co. et al. (Mo. App.), 117 S.W.2d 623; Wills v. Berberich's Delivery Co. (Mo.), 134 S.W.2d 125. The duty of the Commission is to pass upon inferences to be drawn from the facts testified to, and not that of the courts. Maddux v. Kansas City Public Service Co., 111 S.W.2d 208. Compensation and common law cases hold that for a permanent total disability award to be issued, it is not required one be necessarily inert and helpless. Kinyon v. Kinyon (Mo. App.), 71 S.W.2d 78; Moss v. Met. Life Ins. Co. (Mo. App.), 84 S.W.2d 395; State ex rel. Met. Life Ins. Co. v. Hoffstetter et al., Judges (Mo.), 92 S.W.2d 122; Johnson v. Scott County Milling Co. (Mo. App.), 101 S.W.2d 123; Maddux v. Kansas City Pub. Serv. Co. (Mo. App.), 111 S.W.2d 208; Rickey v. New York Life Ins. Co. (Mo. App.), 71 S.W.2d 88.

Cave, J. Bland, J., concurs.

OPINION

CAVE

This is an appeal from a judgment of the circuit court of Cooper County which affirmed an award by the Workmen's Compensation Commission in favor of plaintiff (respondent) and against defendants (appellants).

The award was for a permanent total disability allowance of 300 weeks at $ 8 per week, and for $ 6 per week for life after the expiration of the 300 weeks' period "subject to modification and review as provided by law." It is conceded the present value of the...