Kenser v. Ely & Walker Dry Goods Co.

• Decision Date: 07 March 1932
• Citation: 48 S.W.2d 167,226 Mo.App. 1016
• Parties: LILLIAN KENSER, RESPONDENT, v. ELY & WALKER DRY GOODS CO., A CORPORATION AND AMERICAN MUTUAL LIABILITY INSURANCE CO., A CORPORATION, APPELLANTS
• Court: Missouri Court of Appeals

48 S.W.2d 167

226 Mo.App. 1016

LILLIAN KENSER, RESPONDENT, v. ELY & WALKER DRY GOODS CO., A CORPORATION AND AMERICAN MUTUAL LIABILITY INSURANCE CO., A CORPORATION, APPELLANTS

Court of Appeals of Missouri, Springfield

March 7, 1932

Appeal from the Dunklin County Circuit Court.--Hon. W. S. C. Walker Judge.

AFFIRMED.

Judgment affirmed.

Wm. R Schneider and J. J. Cooney for appellants.

(1) The award of the Commission was based upon findings of fact adequately supported by the record and such findings are conclusive and binding upon the courts on appeal and no other award or decision could be based thereon than that rendered by the Commission and the court erred in setting it aside and remanding the cause. Woods v. American Coal & Ice Co. (Mo. App.), 25 S.W. 2d) 144; Smith v. Levis-Zukoski Mercantile Co. (Mo. App.), 14 S.W.2d 470; Hager v Pulitzer, 17 S.W.2d 578; Kinder v. Hannibal Co., 18 S.W.2d 91. (2) The only question for the circuit court on review of an award of the commission denying compensation is to ascertain whether there is sufficient competent evidence in the record to warrant the decision of the Commission. That there was is obvious from the record in this cause. R. S. 1929, Sec. 3442; Woods v. American Coal & Ice Co. (Mo. App.), 25 S.W.2d 144.

H. C. Blanton for respondent.

(1) Findings of the Commission must not rest upon surmise, speculation and conjecture. Smith v. Levis-Zukoski Co., 14 S.W.2d l. c. 473; DeMoss v. Brick Co., 37 S.W.2d 961. (2) The award of the Commission where not supported by the facts will be reversed. Smith v. Levis-Zukoski Company, 14 S.W.2d l. c. 473; DeMoss v. Brick Co., 37 S.W.2d 961; Johnson v. Reed, 32 S.W.2d 107; Metting v. Lehr Const. Co., 32 S.W.2d 121; Woods v. American Coal Co., 25 S.W.2d 144.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

This is an appeal from the circuit court of Dunklin county reversing the order, decision, findings and award of the Missouri Workmen's Compensation Commission and remanding said cause to the Commission.

The plaintiff claimed that she was hurt on October 17, 1929, while employed by Ely & Walker Dry Goods Company, at its factory located at Kennett, Missouri. There is no question as to her employment at the time of the alleged injury, and no question as to her filing of a claim and the form thereof, nor is there any question as to the American Mutual Liability Insurance Company being the insurer.

A claim was filed in time, a hearing was had before the Commission, and the decision of the Commission was as follows:

"The undersigned (the full Commission) hereby find in favor of the above employer and insurer and against the above employee and award no compensation for the above alleged accident. For the reason that employee's condition is not the result of accident arising out of the course of her employment, but is due to cause independent of said employment."

The plaintiff took an appeal to the circuit court, and the record and evidence heard before the Commission was presented to the court and on July 24, 1930, the circuit court rendered the following judgment:

"The above matter coming on for hearing before the court to review an award of the Workmen's Compensation Commission of the State of Missouri, and the employee appearing by her counsel, H. C. Blanton, and the employer and insurer appearing by their counsel, J. J. Cooney, is now taken up by the court and after hearing the same the court finds that there was not sufficient competent evidence in the record to warrant the Workmen's Compensation Commission of Missouri in making the award it did in favor of the employer and insurer, but the court finds that the employee's condition is the result of an accident arising out of and in the course of her employment and that the award of the Compensation Commission is, therefore, erroneous. It is, therefore, the order and judgment of the court that the employee, Lillian Kenser, is entitled to compensation under the provisions of the Workmen's Compensation Act, and it is the further order and judgment of the court that the cause be remanded to the Workmen's Compensation Commission of the State of Missouri with directions to ascertain and award to the employee the compensation due her by law and that the employee recover of and from the employer and insurer her costs in this behalf laid out and expended."

It is from this judgment that the appeal is taken.

The defendants contend, and with that contention the plaintiff agrees, that the only question before this court is, "Is there sufficient competent evidence in the record to support the finding, decision, and award of the Commission?"

The material parts of the claim for compensation filed with the Commission is as follows:

"2. Names and addresses of all claimants: Lillian Kenser, R. F. D. No. 1, Morely, Missouri.

"3. Names and addresses of all employers: Ely-Walker D. G. Company, Kennett, Missouri.

"4. Names and addresses of all insurers: American Mutual Liability Ins. Company, 305 Buder Bldg., St. Louis, Missouri.

"5. Injured employee's name: Lillian Kenser.

"6. Average weekly wages: $ 12.

"7. Date of accident: October 17, 1929.

"8. Hours: About ten A. M.

"9. Place of accident: In the shirt factory, Kennett Street, Kennett, Missouri.

"10. Did injury result in death? No.

"11. Parts of body injured: Almost entire body.

"12. Weeks of temporary disability to date: fifteen.

"13. Weeks of probably future temporary disability: fifty-two.

"14. Exact nature of any permanent injury: Right hand and wrist probably permanently disabled.

"15. How accident happened, cause, and work employee was doing for employer at the time: It was the duty of the employee to sprinkle or spray shirts, which had been dyed, and then iron the same, and after ironing, to pin the shirts. While engaged in pinning one of the shirts, employee accidently stuck a pin in the middle finger on the right hand, which became infected and poisoned from the dye used on the shirts. Shortly thereafter and on the same day, employee observed that the point where was pricked by the pin, first in the finger and then the hand, became painful, inflamed and swollen and gradually spread to almost her entire body.

"17. Total compensation paid to date, £ Nothing.

"18. Total value of compensation claimed, $ 220 plus doctor bills to date, plus future compensation.

"19. Dated: January 30, 1930."

The part of the answer to claim for compensation, material here, is as follows:

"All of the statements in the claim for compensation are admitted except the following: It is denied that employee received an accidental injury arising out of and in the course of her employment, resulting in disability. It is averred employee's condition is the result of disease."

The case is before us on the following assignments of error:

"1. The court erred in setting aside an award of the Missouri Workmen's Compensation Commission because said award was based upon a finding of facts adequately supported by the record.

"2. Findings of fact by the commission supported by evidence in the record is conclusive and binding upon the courts on appeal and the court erred in setting aside the award based on such findings.

"3. The court erred in that it did not reverse, set aside the award, and remand the cause for any one of the four statutory grounds mentioned in section 3342, Revised Statutes of Missouri, 1929, which are the only grounds upon which an award can be set aside and remanded."

This necessitates a consideration by us of the circuit court's duty and power in case of an appeal from the final award of the Commission, and a consideration of the testimony offered in this case.

Section 3342, Revised Statutes 1929, provides for an appeal from the Commission to the circuit court, and specifically provides what shall be included in, and become the record before the circuit court, and provides as follows: "Upon appeal no additional evidence shall be heard and in the absence of fraud, the finding of facts made by the Commission within its powers shall be conclusive and binding. The court on appeal, shall review only questions of law and may modify, reverse, remand for rehearing or set aside the award upon any of the following grounds and no other:

1. That the commission acted without or in excess of its powers.

2. That the award was procured by fraud.

3. That the facts found by the commission do not support the award.

4. That there was not sufficient competent evidence in the record to warrant the making of the award."

It is seen from the foregoing statute that one of the powers of the circuit court is to remand the cause for rehearing if the court finds that there was not sufficient competent evidence in the record to warrant the making of the award. A reference to the court's judgment, heretofore set out in full, will show that is exactly what the court did find. The court used almost the exact language of the statute, viz: "The court finds that there is not sufficient competent evidence in the record to warrant the Workmen's Compensation Commission of Missouri in making the award it did . . ." Certainly by statutory provision the trial court had a right to go that far. Our appellate courts have so held in numerous recent cases. [De Moss v. Brick Company (Mo. App.), 37 S.W.2d 961; Beecham v. Greenlease Motor Company et al. (Mo. App.), 38 S.W.2d 535, 537; Woods v. American Coal & Ice Co. (Mo. App.), 25 S.W.2d 144.]

The court had a perfect right to pass on the sufficiency of the evidence, and it is up to us now to determine as a matter of law whether or not there was sufficient competent evidence adduced, in the hearing before the trial court, to justify the finding made by the commission in denying the...