Phillips v. Skelly Oil Co.

• Decision Date: 07 April 1962
• Docket Number: No. 42594,42594
• Citation: 370 P.2d 65,189 Kan. 491
• Parties: Mary PHILLIPS, Widow of Clifford M. Phillips, Deceased, Appellant, v. SKELLY OIL COMPANY, Appellee.
• Court: Kansas Supreme Court

Page 65

370 P.2d 65

189 Kan. 491

Mary PHILLIPS, Widow of Clifford M. Phillips, Deceased, Appellant, v. SKELLY OIL COMPANY, Appellee.

No. 42594.

Supreme Court of Kansas.

April 7, 1962.

Syllabus by the Court

1. Established rules relating to appellate consideration and review of judgments in workmen's compensation cases stated, discussed and applied.

2. The record in a workmen's compensation proceeding examined and it is held that the findings of fact made by the district court are supported by substantial competent evidence.

Stuart D. Mitchelson, Mission, argued the cause, and Granville M. Bush, Lyons, A. J. Pflumm, Donald C. Amrein, and Richard L. Bond, Mission, were with him on the briefs for appellant.

R. Kendall Sherrill, Tulsa, Okl., argued the cause, and Max C. Bucklin, Pratt, was with him on the briefs for appellee.

PARKER, Chief Justice.

This workmen's compensation case was instituted by Mary Phillips (hereinafter referred to as the claimant or appellant), as the widow of Clifford M. Phillips, deceased, against the employer, the Skelly Oil Company, a self insurer (hereinafter referred to as the respondent or appellee).

In submitting the cause to the Compensation Commissioner, now Compensation Director (see Laws 1961, Chapter 243, Section 7, now G.S.1961 Supp. 74-710), the parties stipulated that the only question to be resolved in the proceeding was whether the accident arose out of and in the course of the decedent's employment. A hearing resulted in an award to claimant, whereupon the respondent appealed to the district court.

After a full and complete trial in district court, in conformity with the provisions of Laws of 1955, Chapter 250, Section 10, now G.S.1961 Supp. 44-556, that tribunal found, among other things, that the decedent's accidental death did not arise either in the course of or out of his employment with the respondent. It then reversed the Commissioner's decision and rendered judgment denying the claimant an award. This appeal followed.

In approaching questions raised by the appellant, all of which are based upon claims respecting the sufficiency of the evidence to sustain the trial court's judgment in refusing an award, we deem it necessary to once again point out that on appellate review of such questions in workmen's compensation proceedings (1) it is the function of the trial court not that of the appellant court to pass upon the facts and this court nas no jurisdiction over questions of fact on appeal under the Workmen's Compensation Act (Holler v. W. S. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P.2d 846, 148 A.L.R. 1131; McDonald v. Rader, 177 Kan. 249, 277 P.2d 652; Kafka v. Edwards, 182 Kan. 568, 570, 571, 322 P.2d 785; LaRue v. Sierra Petroleum Co., 183 Kan. 153, 156, 325 P.2d 59; Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 346, 356 P.2d 804; Love v. Kerwin, 187 Kan. 760, 359 P.2d 881; Price v. McSpaden, 188 Kan. 578, 581, 363 P.2d 533; Lutz v. F. P. Gehring Contractor-Builder Inc., 188 Kan. 690, 692, 366 P.2d 281; Thompson v. Heckendorn Manufacturing Co., 189 Kan. 77, 367 P.2d 72.); (2) the question whether the disability of a workman is due to an accident arising out of and in the course of his employment is a question of fact and when it is determined by the district court will not be disturbed by this court where there is substantial evidence to sustain it (Gregg v. American Walnut Lbr. Co., 137 Kan. 201, 19 P.2d 463; Kafka v. Edwards, 182 Kan. p. 570, 322 P.2d 785, supra; LaRue v. Sierra Petroleum Co., 183 Kan. p. 155, 325 P.2d 59, supra; Aller v. Goodyear Tire & Rubber Co., 184 Kan. 184, 185, 334 P.2d 370; Heer v. Hankamer Excavating Co., 184 Kan. 186, 187, 334 P.2d 372; Grow v. Musgrove Petroleum Corp., 184 Kan. 800, 802, 803, 339 P.2d 75; Shepherd v. Gas Service Co., 186 Kan. 699, 701, 352 P.2d 48.); (3) whether the judgment is supported by substantial competent evidence is a question of law as distinguished from a question of fact (Holler v. Dickey Clay Mfg. Co., supra; Pinkston v. Rice Motor Co., 180 Kan. 295, 299, 303 P.2d 197; Snedden v. Nichols, 181 Kan. 1052, 1055, 317 P.2d 448; McDonald v. Pader, supra, and cases there cited; LaRue v. Sierra Petroleum Co., 183 Kan. p. 156, 325 P.2d 59, supra; Rakes v. Wright Cooperative Exchange, 185 Kan. 794, 347 P.2d 389; Price v. McSpaden, 188 Kan. p. 581, 363 P.2d 533, supra; Cross v. Wichita Compressed Steel Co., 187 Kan. p. 346, 356 P.2d 804, supra.); and (4) in reviewing the record to determine whether it contains substantial evidence to support the district court's judgment, this court is required to review all the evidence in the light most favorable to the party prevailing below, and if there is any evidence to support the judgment it must be affirmed even though the record discloses some evidence which might warrant the district court making a contrary decision (Rothman v. Globe Construction Co., 171 Kan. 572, 574, 235 P.2d 981; Barr v. Builders Inc., 179 Kan. 617, 296 P.2d 1106, and cases cited at page 619 of the opinion; Pinkston v. Rice Motor Co., 180 Kan. p. 299, 303 P.2d 197, supra; Snedden v. Nichols, 181 Kan. p. 1055, 317 P.2d 448, supra; Allen Goodyear Tire & Rubber Co., 184 Kan. pp. 185, 186, 334 P.2d 370, supra; Heer v. Hankamer Excavating Co., 184 Kan. p. 187, 334 P.2d 372, supra; Rakes v. Wright Cooperative Exchange, 185 Kan. p. 794, 347 P.2d 389, supra; Shepherd v. Gas Service Co., 186 Kan. p. 699, 352 P.2d 48, supra.).

Many decisions supporting the foregoing rules appear in the opinions above cited. Nemerous other decisions of like import will be found in Hatcher's Kansas Digest [Rev. Ed.], Workmen's Compensation, § 153, and West's Kansas Digest, Workmen's Compensation, k1940 to 1969, incl.

There is little, if any, dispute between the parties as to the evidence regarding the facts to which we shall now refer.

Appellant's husband was a pumper and had been an employee of the respondent since 1932. One of several leases assigned to him by respondent in that capacity was the C. T. Grizzell lease situated in Rice County....