Seabaugh's Dependents v. Garver Lumber Mfg. Co.

• Citation: 200 S.W.2d 55,355 Mo. 1153
• Decision Date: 10 February 1947
• Docket Number: 39940
• Parties: In re Claim of Dependents of Wiley Tom Seabaugh, Deceased, v. Garver Lumber Manufacturing Company, Employer, and Lumbermens Mutual Casualty Company, Insurer, Appellants
• Court: Missouri Supreme Court

200 S.W.2d 55

355 Mo. 1153

In re Claim of Dependents of Wiley Tom Seabaugh, Deceased, v. Garver Lumber Manufacturing Company, Employer, and Lumbermens Mutual Casualty Company, Insurer, Appellants

No. 39940

Supreme Court of Missouri

February 10, 1947

Rehearing Denied and Per Curiam Opinion Filed March 10, 1947.

Appeal from Cape Girardeau Circuit Court; Hon. J. C McDowell, Judge.

Reversed.

Oliver & Oliver for appellants.

(1) This court will determine this case as if upon original appeal and will consider it upon its merits. Sec. 10, Art. V, Constitution of Missouri 1945; State ex rel. v. Bland, 189 S.W.2d 542. (2) Section 3691, R.S. 1939, creates liability for "death of the employee by accident arising out of and in the course of his employment." And Section 3695 (b) defines the word "accident." (3) The burden was upon claimants to bring themselves under the provisions of the Missouri Workmen's Compensation Laws at the time and place of deceased's death, that is, prove that deceased died as a result of an accident, an unexpected or unforseen event happening suddenly and violently . . . and producing at the time objective symptoms of an injury, and that he did not die of natural causes occurring while he was at work. O'Neil v. Fred Evens Motor Sales Co., 160 S.W.2d 775; Cox v. M.K. & T. Railroad, 76 S.W.2d 411, 335 Mo. 1226; DeLille v. Holton-Seelye Co., 66 S.W.2d 834, 334 Mo. 464; Dicker v. Ind. Biscuit Co., 46 A.2d 652. (4) It is not sufficient for recovery to show that the injury or death complained of resulted from one or the other of two causes for one of which, but not the other, the defendant would be liable. That is the maximum that claimants did here -- the most that they showed was that if deceased had not died of coronary occlusion, then the alleged broken vertebra could have caused it. An opinion that a broken neck might have caused decedent's death does not constitute substantial evidence that it did cause it. This is settled law in Missouri. DeLille v. Holton-Seelye Co., 66 S.W.2d 834, 334 Mo. 464; Adelsberger v. Sheehy, 59 S.W.2d 644, 332 Mo. 954; O'Leary v. Scullin Steel Co., 360 S.W. 55, 303 Mo. 363; Derschow v. St. Louis Pub. Serv. Co., 95 S.W.2d 1173, 339 Mo. 63; Hunt v. Armour & Co., 136 S.W.2d 312, 345 Mo. 677. (5) While the rule is established that the award of the Workmen's Compensation Commission must prevail if supported by substantial competent evidence, it is equally well established that in the absence of substantial evidence in the record to support such finding, it will be set aside. Joyce v. Luce-Stevenson Co., 139 S.W.2d 918, 346 Mo. 58; Kimmie v. Terminal R. Assn. of St. Louis, 66 S.W.2d 561, 334 Mo. 596; Meldrum v. Southern Feed & Mill Co., 74 S.W.2d 75, 229 Mo.App. 158; Sciortino v. E. Salia & Co., 157 S.W.2d 535; Kendrick v. Sheffield Steel Corp., 166 S.W.2d 590. (6) Under Workmen's Compensation law imposing liability on employer for injury sustained by employee by accident arising out of and in the course of his employment and defining "accident" as an unexpected and unforeseen "event," injury and event are separated and reliance cannot be placed on injury alone, in absence of an event, to establish the fact of an accident. Sec. 3695, R.S. 1939; State ex rel. v. Hughes, 153 S.W.2d 40, 348 Mo. 319; Joyce v. Luce-Stevenson, 139 S.W.2d 918, 346 Mo. 58; Sciortino v. E. Salia & Co., 157 S.W.2d 535; Kendrick v. Sheffield Steel Corp., 166 S.W.2d 590. (7) Death is not an accident. It is the result of either (a) an accident, or (b) natural causes. It is the most certain and inexorable fact known to man. Renfro v. Pittsburgh Plate Glass Co., 130 S.W.2d 165; 223 Mo.App. 1219; Hickman v. Dunlop Tire & Rubber Co., 185 S.W.2d 874. (8) "It is now settled that in matters where the evidence does not exclude all other causes and in which no layman could know or have reasonable basis for an inference as to cause, opinions of doctors that a certain occurrence or condition might, could, or would produce a certain result is no more than an assurance that such a result was scientifically possible, and does not alone constitute substantial evidence that such occurrence or condition did cause it. O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 336 Mo. 497, 79 S.W.2d 109; Kimmie v. Terminal Railroad Assn., 334 Mo. 596, 66 S.W.2d 561; Cox v. M.-K.-T. Railroad Co., 335 Mo. 1226, 76 S.W.2d 411; Derschow v. St. Louis Public Service Co., 339 Mo. 63, 95 S.W.2d 1173; Bieser v. Goran, 340 Mo. 354, 100 S.W.2d 897; Kourik v. English, 340 Mo. 367, 100 S.W.2d 901; Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 108 S.W.2d 98." Hunt v. Armour & Co., 136 S.W.2d 312, 345 Mo. 677. (9) There is no substantial competent evidence to support the award of the Commission, and the case is plainly within the category of the following cases decided by this court: DeLille v. Holton-Seelye, 66 S.W.2d 834, 334 Mo. 464; Joyce v. Luce-Stevenson, 139 S.W.2d 918, 346 Mo. 58; State ex rel. Hussman-Ligonier v. Hughes, 153 S.W.2d 40, 348 Mo. 319; O'Leary v. Scullin Steel Co., 260 S.W. 55, 303 Mo. 363; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Kimmie v. Terminal R. Assn. of St. Louis, 66 S.W.2d 561, 334 Mo. 596; Cox v. Missouri-Kansas-Texas R. Co., 76 S.W.2d 411, 335 Mo. 1226; Derschow v. St. Louis Public Serv. Co., 95 S.W.2d 1173, 339 Mo. 63; Hunt v. Armour & Co., 136 S.W.2d 312, 345 Mo. 677; Gullick v. Fruin-Colnon Construction Co., 65 S.W.2d 927, 334 Mo. 135. And these additional cases by the Court of Appeals: Meldrum v. Southard Feed & Mill Co., 74 S.W.2d 75, 229 Mo.App. 158; Sciortino v. E. Salia & Co., 157 S.W.2d 535; Kendrick v. Sheffield Steel Co., 166 S.W. 590; O'Neil v. Fred Evens Motor Sales Co., 160 S.W.2d 775; Keller v. Bechtel, McCone, Parsons Corp., 174 S.W.2d 925.

Jack O. Knehans for respondents.

(1) The brief for appellant shall contain, among other things, a fair and concise statement of the facts without argument and if any appellant in any civil case fails to comply with such rule the court, when the cause is called for hearing, will dismiss the appeal unless good cause is shown or the interests of justice otherwise require. Rule 1.08, Rule 1.15 of the Supreme Court of Missouri. (2) This appellate court does not have jurisdiction of this appeal. The notice of appeal from the final judgment of the circuit court was not filed until twenty-eight (28) days after the entering of such judgment, contrary to Section 129, Civil Code of Missouri, Laws of Missouri, 1943, page 390, which provides that no appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final. (3) The judgment of the circuit court entered July 11, 1945 was a final judgment from which appeal was necessary, it being well settled law since 1931 that a motion for a new trial in Workmen's Compensation cases does not exist, does not perform any necessary or useful function, has no legal status and is ineffectual to postpone, toll or extend the finality of the judgment. State ex rel. May Department Stores v. Haid, 38 S.W.2d 44, 327 Mo. 567; Wheat v. Globe Indemnity Co., 44 S.W.2d 168; Urban v. S. P. Boggess & Son, 66 S.W.2d 157; Buchanan v. Nicozisis, 78 S.W.2d 492. (4) The appellants have failed to present any matters or suggestions entitling them to relief or a special order as provided in Section 130, Civil Code of Missouri, Laws of Missouri, 1943, page 391. (5) It is the contention of claimants-respondents that Rule 3.24 of the Rules of the Supreme Court of Missouri does not apply to the instant case for the reason that this rule undoubtedly applies to judgments of trial courts following the trial of a cause and not to courts acting as intermediate courts of appeals throughout the rule there appearing references to motion for a new trial, after-trial motions and a motion seeking relief in the trial court. The circuit court, upon an appeal taken to that court from a final award of the Compensation Commission, acts only in the capacity of a court of review, or as an intermediate court of appeals, and not as a court of original or trial jurisdiction. The purpose of a motion for a new trial is to call to the attention of a trial court errors occurring during the course or progress of a trial of a cause or proceeding, in order that the trial court may be afforded the opportunity to correct such errors. State ex rel. May Department Stores Co. v. Haid, supra. (6) The language used in the Workmen's Compensation Act and all reasonable implications therefrom shall be liberally construed to effectuate its purpose and all doubts resolved in favor of the employee. Sec. 3764, R.S. 1939; Dauster v. Star Mfg. Co., 145 S.W.2d 499; Holmes v. Freeman, 150 S.W.2d 557; Morehead v. Grigsley, 132 S.W.2d 237. (7) A general finding necessarily implies a finding of every fact necessary to support such general finding. State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1008; State ex rel. Probst v. Haid, 330 Mo. 390, 62 S.W.2d 869; Henley v. Carlo Motor Service Co., 130 S.W.2d 187. (8) On appeal from an award of the compensation commission, the reviewing court must review the evidence in the light most favorable to the award, and draw all reasonable inferences of fact from the evidence adduced to support the award. All reasonable inferences must be drawn from the evidence to support the award and findings of the commission and all testimony unfavorable to the award must be disregarded. The findings of the compensation commission are conclusive on appeal if supported by competent evidence, or if the competent evidence is conflicting and this is true even though the competent evidence is slight. The weight of the evidence and the credibility of the...