Noto v. Hemp & Co.

• Citation: 83 S.W.2d 136,231 Mo.App. 982
• Parties: ANTHONY NOTO (CLAIMANT), APPELLANT, v. HEMP & COMPANY (EMPLOYER), AND FIDELITY AND CASUALTY COMPANY OF NEW YORK (INSURER), RESPONDENTS
• Decision Date: 04 June 1935
• Court: Missouri Court of Appeals

83 S.W.2d 136

231 Mo.App. 982

ANTHONY NOTO (CLAIMANT), APPELLANT, v. HEMP & COMPANY (EMPLOYER), AND FIDELITY AND CASUALTY COMPANY OF NEW YORK (INSURER), RESPONDENTS

Court of Appeals of Missouri, St. Louis

June 4, 1935

Appeal from Circuit Court of City of St. Louis.--Hon. Clyde C. Beck Judge.

AFFIRMED.

Judgment affirmed.

George A. Hodgman and Luke & Cunliff for respondents.

(1) The burden of proof that the accident arose out of and in the course of the employment is on the claimant. Munton v Driemeier Storage & Moving Co., 22 S.W.2d 61; De Lille v. Holton-Seelye Co., 66 S.W.2d 834; Doughton v. Marland Refining Co., 53 S.W.2d 236. (2) The credibility of a witness is a matter for the Commission. Sanders v. Central Bldg. Materials Co., 43 S.W.2d 863; Jackson v. General Metals Refining Co., 43 S.W.2d 865. (3) The Commission may make a finding setting forth the ultimate facts and not evidentiary facts upon which the ultimate facts depend. Doughton v. Marland Refining Co., 53 S.W.2d 236. (4) All reasonable favorable inferences must be drawn from the evidence to support the findings of the Commission. Bise v. Tarlton, 35 S.W.2d 993; Elihinger v. Wolf House Furn. Co., 72 S.W.2d 149. (5) The Commission's conclusion, when supported by competent evidence, is binding upon this court the same as the determination of any other question of fact. State ex rel. Brewen-Clark Syrup Co. v. Mo. Workmen's Comp. Com., 8 S.W.2d 897; Cuchi et al. v. George C Prendergast & Sons, 72 S.W.2d 136.

Joseph B. Catanzaro for appellant.

(1) The Commission acted without or in excess of its powers. It is the duty of the Missouri Workmen's Compensation Commission to make a finding of fact pertinent to the question at issue. Sec. 3339, R. S. Mo. 1929, provides: "The award, together with a statement of the findings of fact, rulings of law and any other matters pertinent to the question at issue, shall be filed with the record of proceedings." (2) That the facts found by the Commission do not support the award. If the Commission's award is based on an erroneous conclusion of law as applied to the facts, it is the duty of the court to remand the cause to the Commission. Elsas v. Montgomery Elev., 50 S.W.2d 130, l. c. 133; Cotter v. Valentine Coal Co., 14 S.W.2d 660; Ransdell v. International Shoe, 44 S.W.2d 1; Keithly v. Stone & Webster, 49 S.W.2d 296. (3) (a) If there is not sufficient competent evidence in the record to support the Commission's findings the Appellate Court will set aside such finding. Teague et al. v. Laclede-Christy, 52 S.W.2d 880; Sawtell v. Stern Bros., 44 S.W.2d 264; Mettig v. Lehr Con. Co., 32 S.W.2d 124. (b) Findings of the Commission may not rest on speculation, surmise or conjecture. Curtis v. St. Louis Material, 54 S.W.2d 736; Allison v. Eyerman Const. Co., 43 S.W.2d 1063.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

This is a suit under the Workmen's Compensation Act, which originated by the filing of a claim with the Commission for compensation by the claimant and appellant, Anthony Noto, on the 8th day of June, 1932, wherein he claimed compensation by reason of an accident which he claimed to have occurred at eleven A. M. on June 1, 1932, when he, as the employee of Hemp & Company was pulling a truck loaded with heavy doors out of the oven when he felt a sudden pain inside, which proved to be a rupture, the right groin being the part of the body which was injured.

On June 18, 1932, the employer, Hemp & Company, and the insurer, Fidelity & Casualty Company of New York, filed their joint answer in which they denied liability under the Workmen's Compensation Act and asserted that the employee did not suffer any injury by accident within the meaning of the law.

On the 6th day of July, 1932, the cause was heard on its merits before E. C. FRIEDEWALD, Referee, and was taken under advisement by him and on the 15th of August, 1932, he made and entered a temporary award as follows:

"Compensation at $ 13.33 per week beginning July 6, 1932, and continuing until operation is performed and condition is relieved. I believe from the evidence that employee secured the hernia while pulling the truck when it became stuck in the floor, but up to the time of the hearing do not believe employee should have had sufficient disability to cause him to lose time from work."

Thereafter, the cause was reviewed by the full Commission in response to the request of the employer and insurer and a final award was made on September 9, 1932, reversing and setting aside the temporary award previously made by the referee and finding against the claimant as follows:

"We find from the evidence that the condition complained of was not the result of an accident arising out of and in the course of his employment on June 1, 1932. Therefore compensation must be denied."

Thereupon the cause was duly appealed by the claimant to the Circuit Court of the City of St. Louis, where, upon a hearing, the court affirmed the award of the Commission, from which action of the court the claimant duly appealed to this court.

The testimony of the claimant taken on July 6, 1932, was as follows: that he was twenty-nine years old and had been in the employ of Hemp & Company, manufacturers of refrigerators, for about a month and a half as oven tender; that when the doors of the refrigerators were being painted he was engaged in putting them in the oven on trucks and baking the paint on them; that on June 1, 1932, when he was pulling a truck, loaded with doors, from the oven, the truck was stuck and he gave it a jerk and later on he felt himself hurt on the right side in the groin; that he kept on working and kept on doing a little heavy work and later on he told the boss that he wanted to go to the doctor and he gave him a pass to go at 4:30 that evening; that he did go to Dr. Weise, who examined him and said he was ruptured; that he had a lump on his side that he never had before; that he still had the trouble and was suffering from it; that he had done no work since that time and was not able to work.

On cross-examination he admitted having come to the office of the insurer, Fidelity & Casualty Company of New York, on June 4, 1932, in response to a letter requesting him to give a statement, and identified a statement over his own signature as being made and signed by him at that time.

This statement, which was offered in evidence, is as follows:

"I, Anthony Noto, age 29 years, married, and residing at 5124 Wilson Avenue, am employed by the Hemp & Co., Corp., which company is engaged in the manufacture of Frigidaires. My duties are those of oven tender and I generally work six days a week and do not work less than 10 hours a day at the rate of thirty cents per hour.

"On Wednesday, June 1, 1932, I was stacking lining and taking care of the oven during the course of the morning and I would pull trucks out of the oven, and there would be 15 sets of doors on each truck. This made a rather heavy load to pull. A fellow employee by the name of Mac worked with me part of the time during the course of the morning but he went back to his job of painting during the afternoon.

"I felt no sudden strain or pain during the course of the morning. From 12 to 12:30 P. M. we had our lunch period and I ate my lunch. After lunch I started feeling badly, that is, my bag started hurting and I had trouble in walking around but I continued working, that is, pulling the trucks out of the oven and then I would rest a bit and work some more until about 4:30 P. M. I went to Dr. Wiese at 2301 S. Kingshighway and he told me that I had a rupture.

"The next morning I was sick at my stomach, vomited, and could eat nothing.

"Dr. Wiese advised me to stay in bed until such a time as I would have an operation to cure the rupture and I have been there ever since, until this morning when I came down to the Fidelity and Casualty Co., of New York in response to their special delivery letter, requesting me to come to their office--I have never had a rupture before this.

"I have read the above and it is true.

"Anthony Noto."

The further cross-examination of claimant was as follows:

"Mr Cunliff (Q.): You say this happened in the morning? A. yes, sir.

"Q. I believe you told me you felt no sudden strain or pain during the course of the morning? A. Yes.

"Q. And that you had your lunch between 12:00 and 12:30? A. Yes, sir.

"Q. After lunch you started feeling badly? A. Yes, sir.

"Q. Then you had trouble walking around? A. Yes, sir.

"Q. You felt no strain when you were pulling that out of the--the doors out of the oven? A. Yes, sir.

"Q. Did you feel any strain when you were pulling the doors out of the oven? A. Not exactly, no, not right away, but afterwards.

"Q. It came in the afternoon? A. Right after it happened.

"Mr. Cunliff: That is all.

"Mr. Friedewald (Q.): What makes you think you got it when you pulled this truck out of the way? A. Because it never happened to me before; there wasn't anything wrong with me before that I know of.

"Q. Nothing happened to you when you pulled the truck out? A. Those trucks are kind of heavy, got at least a little jolt underneath the wheel, you have to use all your strength to get that truck out of the oven.

"Q. Was there any difference in the time you pulled this truck out than there was at any other time? A. At any other time there wasn't anything wrong with it but that truck must have stuck in there.

"Q. You had to give it an extra pull? A. Yes, sir.

"Q. Did you get sick right after that then? A. Right after that I started feeling that pain on the side and I ate my dinner and went back to work, and I started feeling worse and worse all through the afternoon.

"Q. When did you first notice this lump? A. ...