Reyer v. Pearl River Tung Co.

• Decision Date: 07 December 1953
• Docket Number: No. 38945,38945
• Citation: 219 Miss. 211,68 So.2d 442
• Parties: REYER v. PEARL RIVER TUNG CO. et al.
• Court: Mississippi Supreme Court

Page 442

68 So.2d 442

219 Miss. 211

REYER v. PEARL RIVER TUNG CO. et al.

No. 38945.

Supreme Court of Mississippi.

Dec. 7, 1953.

William H. Stewart, Poplarville, for appellant.

H. H. Parker, Poplarville, for appellees.

LEE, Justice.

This is an appeal by Mrs. J. C. Reyer from a judgment of the Circuit Court of Pearl River County which affirmed an order of the Workmen's Compensation Commission denying to her certain compensation benefits.

Mrs. Reyer, an employee of Pearl River Tung Company, was injured in the course of her employment on December 19, 1949, when the truck in which she was being transported to her home ran down an embankment and tilted over somewhat on its side. She complained of being hurt, and was taken immediately to Dr. H. B. Cowart, who, after treating her over a period of five weeks, discharged her, and notified the insurance carrier accordingly. Sometime thereafter, the carrier offered $50, being five weeks of compensation at $10 a week, but Mrs. Reyer refused to accept it. The record shows that there was correspondence between the parties and the Commission, but the matter was never concluded. Finally Mrs. Reyer employed an attorney, and he filed a formal claim on April 10, 1951, and the attorney-referee heard the controversy on June 20, 1951.

On this hearing, Mrs. Reyer testified to the manner in which the wreck occurred, namely, that the truck ran down an embankment and tilted over to the side. She was thrown over the seats to the opposite side, 'the breath was knocked out of' her, and people and hampers were piled upon her. At the time she was fifty years of age and weighed 260 pounds. She complained that she was hurt in her back and side, and was taken immediately to the office of Dr. Cowart, where she told him about the accident and indicated the places on her body where she was suffering pain. The doctor strapped her back and side and sent her home. She remained in bed for eight days, during which time, the doctor visited her several times. When she got out of bed, she went to his office about twice a week for a considerable period, and thereafter about once a week or every two weeks until the date of the hearing. Following the first examination, she took regularly the medicine which had been prescribed until the last several weeks. Since that time, she took medicine for relief only as it was needed. She remained with her back and side strapped for five weeks after the injury. At the time of the trial her weight had dropped to 220 pounds. She never had an injury before this one, but was able to, and did, put in a full day's work, sometimes with considerable overtime. She has not worked since the injury and has not been able 'to even wash John (her husband) a pair of pants since then.'

John Malley, the driver of the truck, gave corroboration to the manner of the injury. He testified that about three of his passengers complained of being hurt, although others may have been scratched.

Dr. H. B. Cowart testified that when Mrs. Reyer came to his office, in the late afternoon, she said that she had been in a wreck, and was complaining terribly of her shoulder, arm, side and back. However he saw no external signs of injury. He went to her home three times and she then came to his office at least once a week or every two weeks ever since. He testified that, when a patient complains of pain, the doctor takes such fact for granted, as he cannot see it. So he gave her sedatives for that purpose. His idea was that she had a neuritis. In a nerve injury, there is no sign. A lick of the kind which she received 'could upset the central nervous system to the point she would suffer a lot from it.' It would be likely for her to have such injury as a result of the wreck. She walked and used her arm, but when she did so, she complained of pain, and this 'probably savors of a permanent nature.' The doctor admitted that he discharged Mrs. Reyer on January 24, 1950; that he gave her all of the time that he thought the Compensation Commission would allow; that patients usually snap out of such condition; but that he was not infallible. He saw her a number of times after the injury, and she still complained of pain, and, in his opinion, she was still unable to work. After observation of her for this long period of time, it was his retroactive opinion that she received an injury to her nerves in the affected parts. He also testified that the medical profession depends on neurologists to aid them in determining whether a patient suffers pain from a nerve injury.

At this juncture, the attorney-referee, with the consent of the attorneys for the parties, ordered an examination of the claimant by Dr. F. B. Donaldson, a neurologist, who was recommended by Dr. Cowart as a competent man in that field. The examination was made and the doctor filed his report, dated July 11, 1951, with the Commission. The report gave a history of the case, consisting of the manner of the wreck and the claimant's injury and her complaint as to pain. It recited the result of various tests, and concluded that they revealed no sign of neurological disease. It observed that: 'The above complaints are rather typical of a mixed neurosis. She shows both anxiety and conversion symptoms. The distribution of her pain is typical of that of a conversion psychoneurosis. It would be hard to differentiate between a traumatic psychoneurosis and compensation psychoneurosis in this case. It is doubtful that a wreck would have produced these symptoms in an individual that did not already have a neurotic personality makeup. It is possible that the accident was a precipitating factor. There was no neurological disease that would prevent her from working at this time.'

The evidence of the claimant showed a wreck of the truck and her immediate complaint. This was corroborated by the driver of the truck, who also testified that other passengers were slightly injured at the time. An examination forthwith by the doctor, while finding no external evidence of injury, was such that he strapped her back and side and gave her medicine to relieve pain. He attended her in her home until she was able to come to his office. His opinion was such that, after treating her for five weeks, he could discharge her; but when the pain persisted, since he was not infallible, he came to the conclusion that she had developed a neuritis, following the injury, and that it was the cause of her pain. Dr. Cowart was evidently of the opinion that Mrs. Reyer was in good faith. The very fact that he continued to see her and give medicine over this long period of time indicates clearly that he did not even have a suspicion that she was malingering. Although Dr. Donaldson found no evidence of neurological disease, the report is wholly silent as to the cause of her pain.

Under the proof in this case, it seems conclusive that this woman received an injury and has suffered considerable pain ever since, and, on that account, she has been rendered unable to work. Dr. Cowart attributed this condition to a neuritis. Dr. Donaldson could find no neurological disease which should prevent her from working, but he, in no way, accounted for her pain and, in no way, controverted the fact that she has such pain. The fact of disability by reason of pain, therefore, exists. The inability of doctors to put their fingers on the exact physical cause should not result in casting the claim overboard. With all of the knowledge now possessed by the great medical profession it is a matter of common knowledge that sometimes the diagnosis of human ailments baffles the greatest medical minds.

The evidence for the claimant was neither disputed nor contradicted in its material features. It was not inherently improbable, incredible, unreasonable, or untrustworthy. In such circumstances, it should not be arbitrarily and capriciously rejected. See 32 C.J.S., Evidence, Sec. 1038, pages 1089-1093: 'Uncontradicted or undisputed evidence should ordinarily be taken as true. More precisely, evidence which is not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible, or unreasonable, cannot be arbitrarily or capriciously discredited, disregarded, or rejected, even though the witness is a party or interested; and, unless shown to be untrustworthy, is to be taken as conclusive, and binding on the triers of fact; and where the evidence tends to establish a fact which it is within the power and to the interest of the opposing party to disprove, if false, his failure to attempt to disprove it strengthens the probative force of the evidence tending to prove it. Where there are no contradictions, the evidence of a witness must be considered as a whole and in the setting in which it was given.'

Besides, the appellees had good reason to believe, after Mrs. Reyer refused to accept five weeks of compensation in full payment of her disability, that this matter would be controverted. Consequently, they had ample time to obtain proof as to what she was doing, as to whether she was in good faith, and as to whether she was malingering, consciously or otherwise. But they offered not a word of testimony to dispute or discredit the evidence for her.

Even in criminal cases, where the defendant is the only witness, his version, if reasonable, must be accepted as true unless substantially contradicted in material particulars by the physical facts, or by the facts of common knowledge. Westbrook v. State, 202 Miss. 426, 32 So.2d 251; Weathersby v. State, 165 Miss. 207, 147 So. 481.

In our opinion, the evidence showed conclusively that Mrs. Reyer was disabled to work and, therefore, was not only entitled to compensation for the five-week period, but also for each week thereafter at $10 a week to the date of the hearing, and is likewise entitled to such amount weekly thereafter, during the continuance of her disability, as provided by law.

In view of the above conclusion, it is not...