McMahon v. Midwest Refining Co.

• Decision Date: 08 February 1927
• Docket Number: 1387
• Citation: 36 Wyo. 90,252 P. 1027
• Parties: McMAHON v. MIDWEST REFINING CO. [*]
• Court: Wyoming Supreme Court

252 P. 1027

36 Wyo. 90

McMAHON v. MIDWEST REFINING CO. ^[*]

No. 1387

Supreme Court of Wyoming

February 8, 1927

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Proceeding under the Workmen's Compensation Act by Charles Lee McMahon, claimant, against the Midwest Refining Company employer. Compensation was disallowed by the district court and claimant brings error.

Affirmed.

Irving G. McCann, for plaintiff in error.

Under the Workmen's Compensation Law, we think a prima facie right to compensation arises when disability or death is the result of an injury sustained in extra hazardous employment as defined by statute; 3326 C. S. requires the employer to report whether the accident was due solely to the culpable negligence of the injured employee and, if so, to state the facts; compensation should not be denied unless the injury is found to be due solely to negligence of the workman, of the class or degree named in the law; the trial court erred in receiving exhibits "V" and "W"; plaintiff in error relies solely on the law of our own Supreme Court as declared in the Hotelling case.

John B. Barnes, Jr., and Martin J. Dunsworth, for defendant in error.

Findings made on conflicting evidence will not be disturbed; Hunt v. City, 26 Wyo. 160; Bissinger v. Weiss, 27 Wyo. 262; McFadden v. French, 29 Wyo. 401; White Co. v. Hamilton, 31 Wyo. 390; Huber v. Bank, 32 Wyo. 357; Carter Oil Co. v. Gibson, 241 P. 219. The rule applies to compensation cases; Standard Oil Co. v. Sullivan, 237 P. 253; Milwaukee Coke Co. v. Ind. Com. (Wis.) 151 N.W. 245; and to cases tried to the court without a jury; Young v. Strickland, 17 Wyo. 520; Phelan v. Brick Co., 26 Wyo. 493; Richards v. Richards, 26 Wyo. 421; Stahley Co. v. Beckstead, 27 Wyo. 173. Claimant assumed burden of proof; Hills v. Blair, (Mich.) 148 N.W. 243; 1 Workmen's Compensation Law (Schneider) 740; Corral v. Hamlyn, (R. I.) 94 A. 877; Albaugh-Dover Co. v. Ind. Board, (Ill.) 115 N.E. 834. The objection to exhibits is untenable; R. R. Co. v. Produce Co., 235 F. 857. The case of Hotelling v. Co., (Wyo.) 238 P. 542, is inapplicable; 4315-4348 C. S.

BLUME, Chief Justice. POTTER, J., and KIMBALL, J., concur.

OPINION

BLUME, Chief Justice.

Charles Lee McMahon, hereinafter called the workman, was in the employ of the Midwest Refining Company, hereinafter called the company, on April 30th, 1925. He appears to have had an accident on that date. He claims that while helping to carry part of a drill stem off of a derrick floor, his foot slipped because of the oily condition of said floor, causing sprain to his back. He was taken to the hospital of the defendant and on May 26, 1925, was discharged therefrom as fully recovered. He reported his accident to the court and on June 12, 1925, the court made an order making an allowance to said workman in the sum of $ 41.94, as for total temporary disability between May 1, 1925 and May 26, 1925. The workman returned to his former job on May 27, 1925, but continued at his employment for only about two days, and was absent to June 6, 1925 because of tonsilitis and quinsy. He again returned to work on the latter date and continued therein to and including July 2, 1925, when he claims to have sustained a second injury, and alleges that while unloading a rod-hanger, he slipped over the edge of a sill and wrenched his back. He was taken to the company's hospital and kept therein until September 9, 1925, when he was discharged as cured. In the report which he made of the second accident, he made a claim only for temporary total disability, but at the trial alleged that he was permanently, totally disabled to the extent of seventy-five per cent, and he tried the case upon the theory that such disability was the result of either the accident of April 30, 1925, or the accident of July 2, 1925, and he refused to rely upon either of them separately, notwithstanding the adjudication already made as to the first of these accidents.

The court disallowed the claim of the workman, finding that "there has not been a sufficient showing on the part of the claimant to prove an accident by a preponderance of the evidence in either of the above named cases"--these cases relating to the injuries claimed to have been sustained on April 30, 1925 and on July 2, 1925. The accident of April 30, 1925, does not seem to have been questioned, and we presume that the court meant by the foregoing finding that there was not sufficient evidence to show that the accident of this date resulted in any permanent injury. Whether that is true or not, would, however, seem to be immaterial, for the reason that the case appears to have been squarely tried upon the issue whether or not there was any permanent injury and in fact any injury, to the plaintiff's back, subsequent to July 2, 1925, as a result of either of the accidents in question. The workman's theory seems to be that while no permanent injury to his back from the accident of April 30, 1925 appeared after he was discharged from the hospital on May 26, 1925, that his back was, nevertheless, more easily subject to another sprain, and that the accident of ...