Sauvain v. Battelle

• Citation: 164 P. 1086,100 Kan. 468
• Decision Date: 12 May 1917
• Docket Number: 20,623
• Parties: WILLIAM E. SAUVAIN, Appellee and Appellant, v. A. C. BATTELLE, Appellant and Appellee
• Court: Kansas Supreme Court

164 P. 1086

100 Kan. 468

WILLIAM E. SAUVAIN, Appellee and Appellant, v. A. C. BATTELLE, Appellant and Appellee

No. 20,623

Supreme Court of Kansas

May 12, 1917

Decided January, 1917.

Appeal from Franklin district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. COMPENSATION ACT--Evidence--Findings. The evidence examined and held to support the findings.

2. SAME--Incapacity--Conclusion of Law. On the theory of total incapacity as found, the conclusion of law as to the sum allowed was correct.

3. COMPENSATION ACT--Basis of Plaintiff's Recovery. The cause was tried by the court, and the findings are convincing that the judgment rested on the theory of total incapacity. Held, that an expression in one of the findings indicating partial incapacity only does not, in the situation presented by the record, work such inconsistency as to require reversal.

4. SAME--Injured Workman--Obtaining More Remunerative Work. Rule followed that a workman partially or totally incapacitated is not to be denied compensation on account of obtaining work even more remunerative which he has the physical ability to do.

Fred M. Harris, of Ottawa, Adrian F. Sherman, of Topeka, and Thad B. Landon, of Kansas City, Mo., for the appellant.

H. M. Funston, of Ottawa, for the appellee.

OPINION

WEST, J.:

The plaintiff while working for the defendant in his car works, engaged in rebuilding and repairing cars, fell from a scaffold and hurt his back. He sued for compensation and recovered $ 281, being $ 312 for 52 weeks at $ 6 a week, less credit for payments, $ 30.96. The defendant appeals, reciting eleven specifications of error, only five of which are presented in the brief and only two of which have any merit. These have reference to the testimony in support of the findings and to the allowance made.

The evidence shows clearly enough that the plaintiff received a severe wrench to his back, and the proof was abundantly sufficient to justify the court in finding, as it did, that it would be at least a year from the time he was injured before he could do hard work. Because some physicians, in addition to certain X-ray examinations, went through with mechanical series of tests and found good responses, and failed to find enough traumatic signs on the outside of the back to convince them of material injury to the inside, it is argued that his injury was imaginary; but the testimony of the plaintiff, three fellow workmen, the foreman of the car works, three physicians and others convinced the trial court and convinces us that he was not feigning pain or inventing proof.

Some time after the injury he secured employment as foreman of a section gang, his duties being that of boss and requiring no manual labor or much physical exertion. This was a job of uncertain duration, although, while it lasted it was more remunerative than the work in which he got hurt.

When injured, he was earning $ 10.50 a week. In the fourth finding, after referring to plaintiff's temporary employment as foreman, the court said:

"However, as above stated, he can perform such work, although he can not do a full day's work at hard labor on account of his injuries, and it will be at least a year from the time of his injuries before he can do hard work. In his efforts to do the work of a section foreman he has suffered physical pain."

Then follows the conclusion of law:

"The plaintiff is entitled to recover in this case from the defendant the sum of $ 281.00 and his costs, the above being the amount of compensation to which he would be entitled for one year. The court allows no interest and does not discount the future payments as the year will expire in about six weeks. The amount arrived at is as follows:

52 weeks at $ 6.00

$ 312.00

Credit by Cash

30.96

$ 281.00

The statute, section 5905 of General Statutes of 1915, provides:

"Where total incapacity for work results from injury, periodical payments during such incapacity, commencing at the end of the second week, equal to fifty per cent of his average weekly earnings computed as provided in section 12 but in no case less than six dollars per week or more than fifteen dollars per week."

The section further prescribes that in case of partial incapacity the payments shall not be less than twenty-five or more than fifty per cent of the average weekly earnings, but in no case less than $ 3 a week.

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