Pence v. Centex Const. Co.

• Decision Date: 05 May 1962
• Docket Number: No. 42837,42837
• Citation: 189 Kan. 718,371 P.2d 100
• Parties: Rose PENCE, Widow, and Guardian of Constance Joyce Pence, Minor Child, (Walter M. Pence, Deceased), (Claimants), Appellees, v. CENTEX CONSTRUCTION COMPANY, Inc. (Respondent), and United States Fidelity and Guaranty Company (Insurance Carrier), Appellants.
• Court: Kansas Supreme Court

Page 100

371 P.2d 100

189 Kan. 718

Rose PENCE, Widow, and Guardian of Constance Joyce Pence Minor Child, (Walter M. Pence, Deceased) (Claimants), Appellees, v. CENTEX CONSTRUCTION COMPANY, Inc. (Respondent) and United States Fidelity and Guaranty Company (Insurance Carrier), Appellants.

No. 42837.

Supreme Court of Kansas.

May 5, 1962.

Rehearing Denied June 13, 1962.

Syllabus by the Court

The record on appeal from the findings, award and judgment of the district court allowing compensation in a proceeding under the Workmen's Compensation Act examined, in the light of facts, conditions and circumstances related in the opinion and the established rules relating to appellate review of judgments in such proceedings as therein stated, and held to disclose no error warranting a reversal of the award and judgment.

David H. Fisher, Topeka, Irwin Snattinger, Donald Patterson, C. K. Sayler, and Jack L. Summers, Topeka, on the briefs, for appellants.

George E. McCullough, Topeka, and W. L. Parker, Jr., Robert B. Wareheim, and Philip J. Saia, Topeka, on the briefs, for appellees.

PARKER, Chief Justice.

This is a workmen's compensation case, where the claimants recovered in the proceeding before the Compensation Director and in the district court. The respondent, employer, and the insurance carrier appeal.

The proceeding was instituted by Rose Pence as the widow of her deceased husband and as guardian of his sole dependent minor child, hereinafter referred to as claimants or appellees, against Centex Construction Company, Inc., the employer, and its insurance carrier, United States Fidelity & Guaranty Company, hereinafter referred to as respondents or appellants.

Before submitting the cause to the Compensation Commissioner, now Compensation Director (see Laws 1961, Chapter 243, Section 7, now G.S.1961 Supp. 74-710), hearings were conducted by an Examiner, at the direction of the then Commissioner, where the parties entered into the following stipulation:

'The date of death of the deceased was April 22, 1960; that the relationship of employee-employer existed between the deceased and Respondent on October 21, 1959; that the parties were covered by the Kansas Workmen's Compensation Act; that Rose Pence is the legal guardian of Constance Joyce Pence, minor; that written claim was made within one (1) year; and that the deceased's average weekly wage was $126.00 It was further agreed that no compensation had been paid and no medical or hospital was furnished and the funeral expenses were incurred * * *

'The questions remaining in issue were: (1) Whether deceased met with personal injury by accident on October 21, 1959; (2) Whether the alleged accident arose out of and in the course of employment with the Respondent; (3) Whether the deceased's death on April 22, 1960 was caused by the alleged accident of October 21, 1959; (4) Amount of compensation due, if any; (5) Medical and hospital expenses due, if any.'

At the time of the abolishment of the position of Commissioner under Section 7, Chapter 243, Laws 1961, which became effective June 30, 1961, no hearing had been held and no award had been rendered by the Commissioner in the involved proceeding. In that situation his successor, having been appointed as Workmen's Compensation Director in conformity with the provisions of such statute, reviewed the record theretofore presented to the former Commissioner for his decision.

Thereafter, and on August 8, 1961, the Director made findings and rendered an award in accord with such findings in favor of the claimants and against the respondents, whereupon respondents appealed to the district court.

The findings on which the Director based his award read:

'The Director finds, in addition to the admissions and stipulations of the parties: That the deceased suffered personal injury by accident on October 21, 1959, in Shawnee County, Kansas; that this accident arose out of and in the course of the employment of the deceased with the respondent; that the death of the workman resulted from his accidental injury; that the claimant was temporarily totally disabled from October 21, 1959, to April 22, 1960, the date of his death; that compensation for 25.14 weeks should be awarded at $38.00 per week, totalling $955.32, which should be paid to his widow as his personal representative; that medical and hospital expense for the care and treatment of the claimant was incurred and paid by Rose Pence as follows: Stormont-Vail Hospital, $841.50 and Dr. John Crary, $217.00; that award should be entered requiring the respondent and insurance carrier to reimburse claimant for this medical treatment and $600.00 for burial expenses paid by her; that the claimants were totally dependent upon the deceased at the time of his death; that award should be entered allowing the claimants compensation in the amount of $12,544.68 to be paid one-half to claimant, Rose Pence, and one-half to Constance Joyce Pence, a minor, payable to Rose Pence, as her guardian.'

After hearing the appeal, in conformity with the provisions of G.S.1961 Supp. 44-556, the district court found that the findings and award of the Workmen's Compensation Director were fully supported by the evidence in the case and adopted verbatim the findings and award of such Director as its findings and award. Thereupon it rendered judgment accordingly. Respondents then perfected the instant appeal.

Because they affect other contentions advanced by the parties we feel it necessary to dispose, at the outset, of four contentions to which we shall now refer.

Appellees challenge the right of appellants to be heard on the premise their specifications of error claim error of fact only. We do not agree. Without laboring the point it may be stated we believe appellees' construction of such specifications is too technical and that, in our opinion, they should be construed as charging the particular matters therein complained of were not supported by any substantial competent evidence.

Appellants contend that in a workmen's compensation proceeding the burden is upon the claimants to show that the injury for which compensation is claimed was one arising out of and in the course of the employment. It may be conceded, as appellees frankly admit, that such is the rule. See, e. g., Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P.2d 643, also Abbott v. Southwest Grain Co., 162 Kan. 315, 176 P.2d 839, and other decisions cited at page 320 of the opinion in that case. Be that as it may it must be remembered, that in actions brought under the provisions of our compensation statute, that burden is satisfied if, during the trial of such a proceeding, the claimant introduces any substantial competent evidence which, if believed, tends to support the findings and award of the trier of fact even though there may be other competent evidence to the contrary which, if it had been given credence by the trier of fact, would have warranted findings and an award to the contrary. This principle, it may be added, is so well-established that it requires no citation of authorities supporting it.

Appellants further contend the award of the Director in this case does not comply with the provisions of G.S.1949, 44-523, which require the Commissioner, now the Director, to file his award within thirty days. Under the facts of this case there are several reasons why appellants' position on this point cannot be upheld. In the first place the record does not disclose that the cause had ever been submitted to the then Commissioner for final hearing. In the next, under somewhat similar conditions and circumstances, this court in Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P.2d 41, said:

'* * * Since the examiner's ruling was not in writing in effect there was no award from which an appeal could be taken and claimant's purported appeal of February 14, 1958, was of no effect. It was therefore within the competence of the commissioner to make an award upon the record adduced before the examiner. While G.S.1949, 44-523 provides that an award shall be made within thirty days from the time the matter is submitted, this court held in Ketchell v. Wilson & Co., 138 Kan. 97, 99, 23 P.2d 488, that although the statute is designed to secure prompt action, it does not impose a time limitation upon the commissioner's jurisdiction to make an award.' (p. 822).

And last, but not least, when the cause was finally submitted to the successor Director the findings and award of that official were filed on the very day the hearing was concluded, i. e., on August 8, 1961.

What has just been stated fully dispose of the foregoing question. However, in passing, we note a side contention the Director had no authority to make the decision and enter the award because of the provisions of G.S.1961 Supp. 44-551. We find nothing in this section of the statute which precludes the Director from making an award in a compensation case, as authorized by other sections of our Compensation Act, and hold to the view that the provisions of such section have no application under the facts and circumstances here involved.

We have held many times that whether a judgment is supported by substantial competent evidence is a question of law, as distinguished from a question of fact (See Beaver v. Tammany Industries, 180 Kan. 440, 443, 304 P.2d 501; Holler v. W. S. Dickey Clay Mfg. Co., 157 Kan. 355, Syl. p5, 139 P.2d 846, 148 A.L.R. 1131; Hill v. Etchen Motor Co., 143 Kan. 655, 56 P.2d 103).

In their brief and on oral argument appellants raise three questions. For purposes of this appeal such questions can be consolidated, considered together, and treated as a single question which may be stated thus.

Does the record disclose any substantial competent evidence to support the Director's and the district court's findings that the deceased workman suffered personal injury by accident on October 21, 1959; that this accident arose out of and in...