Lucedale Veneer Co. v. Rogers, 37591

• Citation: 211 Miss. 613,53 So.2d 69
• Decision Date: 14 May 1951
• Docket Number: No. 37591,37591
• Parties: LUCEDALE VENEER CO. v. ROGERS.
• Court: United States State Supreme Court of Mississippi

Page 69

53 So.2d 69

211 Miss. 613

LUCEDALE VENEER CO. v. ROGERS.

No. 37591.

Supreme Court of Mississippi, in Banc.

May 14, 1951.

Heidelberg & Roberts, Hattiesburg, for appellant.

T. H. Hillman, Wm. S. Murphy, Lucedale, for appellee.

KYLE, Justice.

This case was decided by Division A on October 23, 1950. The opinion rendered at that time by Justice Lee is reported in 48 So.2d at page 148. Appellant thereafter filed a suggestion of error, and in view of the importance of the question presented the suggestion of error has been considered by the Court in banc.

Appellant's attorneys in their brief on suggestion of error and the attorneys who have filed supplemental briefs as amici curiae in support of the suggestion of error have made an exhaustive reargument of the points set forth in appellant's original assignment of errors, and have vigorously questioned the right of the court on appeal to set aside an order of the Compensation Commission on the ground that the order is based upon findings of fact which are not supported by the evidence or upon an erroneous interpretation of the applicable provisions of the statute, Chapter 354, Section 8(f), Laws of 1948.

The statute provides that the circuit court on appeal 'shall review all questions of law and of fact', and that if no prejudicial error be found the order of the commission shall be affirmed and remanded to the commission for enforcement, but 'If prejudicial error be found, the same shall be reversed and the circuit court shall enter such judgment or award as the commission should have entered.' The right of appeal and the right to have the court review all questions of law and of fact would be of little value to the party who felt aggrieved at the order of the commission if the court on appeal were unable to reverse the order of the commission in a case where the court found that such order was based upon findings of fact which were contrary to the weight of the evidence or upon an erroneous interpretation of the applicable provisions of the statute. That principle, we believe, has never been adopted by any state which has a workmen's compensation act containing provisions for a review on appeal of all questions of law and of fact similar to our own; and among the cases cited by appellant's attorneys in their very able brief in support of contentions made by them on other points involved in this appeal there are many cases in which the court on appeal has reversed the order of the commission on the ground that the order was based upon findings which were not supported by the weight of the evidence or upon an erroneous interpretation of the provisions of the statute itself.

This is a hernia case, and as a preface to the discussion of the points presented in the appellant's suggestion of error, we quote again the provisions of paragraph (f) of Section 8, Chapter 354, Laws of 1948, in which the facts to be proved in such cases are set forth as follows:

'In all cases of claims for hernia it shall be shown to the satisfaction of the compensation commission:

'1. That the descent of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;

'2. That there was severe pain in the hernial region;

'3. That such prostration resulted so that the employee was compelled to cease work immediately;

'4. That the occurrence of the hernia was noticed by the claimant and communicated to the employer within forty-eight (48) hours.

'5. That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician or surgeon within forty-eight (48) hours after such occurrence'.

The commission, in denying the appellee's claim in its order held: (A) That the proof failed to show satisfactorily that the conditions required by Items (1), (2), (3) and (5), supra, were met. (B) That, as to Item (4), supra, the testimony showed that Rogers failed to return to work on the day after the injury because he did not have transportation; but that, on the following day, he did report for work, and, on being advised by the foreman that his job had already been filled, he then told the foreman that he could not work, and wanted to go to a doctor for treatment. (C) That the evidence failed to show that Rogers lifted any heavy object, suffered any unusual strain, fell, or otherwise did anything to cause a hernia.

In the opinion filed by Justice Lee on October 23, 1950, the facts disclosed by the record were set forth as follows: Rogers had worked for appellant eight months and had never had a hernia. About 9:30 on the morning of May 2, 1949, he was taking several slabs off of a conveyor belt, which was about waist high. These slabs each weighed eight or ten pounds, and probably more. He experienced a sensation like a bee sting in the region of his left groin; the second time, it was worse; it affected him in the afternoon when he went home, and he suffered severe pain that night. He did not return to the plant the next day, because his car was broken down and he was without transportation. On the following day, Wednesday, he reported to his foreman about 6 o'clock in the morning and asked if there was another man in his place; and upon being advised that such was true, he stated that he was unable to work anyhow, and that he had returned to tell the foreman of his injury on the previous Monday. The foreman sent Rogers to a doctor, and this examination disclosed that he was suffering from a hernia. Rogers had worked the balance of the day on Monday without making any complaint.

Appellant's attorneys in their suggestion of error contend that the appellee's proof was insufficient to show that the descent of the hernia immediately followed as a result of sudden effort or severe strain, or that there was severe pain in the hernial region, or that such prostration resulted that the appellee was compelled to cease work immediately. And appellant's attorneys in their briefs cite many cases from other states in support of their contention which upon careful examination are found to be clearly distinguishable from the case that we now have before us. We cannot in this opinion review all of these cases, but we shall mention a few of them.

In the case of Arduini v. General Ice Cream Company, 123 Conn. 43, 192 A. 314, 114 A.L.R. 1333, which is cited by appellant's attorneys in their brief, the claimant's medical history revealed that in May 1932 he had been operated upon for hernia on the left side and that on May 14, 1936, a pre-employment physical examination showed that the rings on both sides were enlarged. The claimant's injury was alleged to have been sustained on August 8, 1936, and the claimant testified that he felt a 'snap', but that he felt no pain and it did not hurt. The Connecticut statute, unlike the Mississippi statute, required that proof be made that the hernia resulted from 'accidental injury' accompanied by evidence of pain and that inability to work followed such accident within one week. The court reversed the findings of the compensation commissioner and disallowed the claim.

In the case of Sciortino v. E. Salia & Co., Inc., Mo.App., 157 S.W.2d 535, which is cited by appellant's attorneys in their brief, the opinion states that the medical testimony was to the effect that plaintiff was suffering with a hernia and weakened condition of the inguinal ring prior to the occasion of his lifting the box which resulted in the injury, and that the strain of the lifting aggravated the hernia due to intra-abdominal pressure; and the court held that the injury itself, though unexpected and unforeseen, did not constitute an accident, as defined by the Missouri statute.

In the case of McPhee & McGinnity Co. v. Industrial Commission of Colorado, 67 Col. 86, 185 P. 268, 269, which is cited by appellant's attorneys in their brief, and which is referred to again hereafter, the testimony showed that the claimant ten years before had a double hernia, and the court held that the evidence upon which an award of the Industrial Commission was made was insufficient to establish the 'recent origin' of the hernia, that its 'appearance was accompanied by pain', and that 'it was immediately preceded by some accidental strain suffered in the course of the employment', as required by the Workmen's Compensation Act of 1915. Laws 1915, p. 544. In that case the court reversed a judgment in favor of the plaintiff and directed that judgment be entered in favor of the defendant.

In the case of O'Brien v. Wise and Upson Company, Inc., 108 Conn. 309, 143 A. 155, the court held, by a divided court, that in order to satisfy the requirement of proof 'that inability to work immediately followed such accident', such inability must follow an injury presently 'or without any substantial interval of time', so that when, as in that case, the employee continued his work for a week after the claimed injury, he was not entitled to compensation. As stated by the Connecticut Supreme Court, in the later case of Arduini v. General Ice Cream Company, supra, as a result of the decision in the O'Brien case and the considerations advanced in the dissenting opinions therein, the general assembly at its next session (1929) amended the act by substituting for the requirement of proof, 'that inability to work immediately followed such accident', Pub.Acts 1927, c. 307, Sec. 4, one for proof that the hernia resulted from an accidental injury 'accompanied by evidences of pain (and) that inability to work followed such accident within one week.' [123 Conn. 43, 192 A. 315.] Pub.Acts 1929, c. 242, Sec. 2.

In the case of Royal Indemnity Company v. Beckmann, 66 Ga.App. 369, 17 S.E.2d 910, 914, which is cited by appellant's attorneys in their brief, the court said that 'A hernia resulting to an employee from an act done in the ordinary performance of his duties, and done in a manner not unusual...