Semmes Nurseries, Inc. v. McVay, 1 Div. 124

• Decision Date: 16 December 1965
• Docket Number: 1 Div. 124
• Citation: 181 So.2d 331,279 Ala. 42
• Parties: SEMMES NURSERIES, INC. v. Yancey W. McVAY.
• Court: Alabama Supreme Court

Page 331

181 So.2d 331

279 Ala. 42

SEMMES NURSERIES, INC. v. Yancey W. McVAY.

1 Div. 124.

Supreme Court of Alabama.

Dec. 16, 1965.

Hamilton, Denniston, Butler & Riddick and Oliver J. Latour, Jr., Mobile, for appellant.

Cunningham & Bounds, Mobile, for appellee.

COLEMAN, Justice.

On application of the employer we review, by certiorari, a judgment awarding compensation to an employee for sixty per cent permanent partial disability sustained by the employee by reason of 'a form of hernia known as prolapse of the rectum resulting from injury by an accident arising out of and in the course of his employment. . . .' The court found that the employee, 'while stooping over and straining to lift a tree or bush felt a sudden pain in his back and spine which was later found to be a prolapse of the rectum . . ..'

Motion to dismiss.

Before this cause was submitted in this court, appellee filed motion to dismiss on the ground that citation of appeal had not been served on appellee as required by § 801, Title 7, Code 1940.

After appellee filed his motion and prior to submission of this cause, citation of appeal was served on appellee as is made to appear by supplement to the record.

Because the ground of the motion to dismiss was eliminated prior to submission, the motion to dismiss is due to be and is overruled. Blalock v. Johnson, 270 Ala. 654, 121 So.2d 604.

On Merits.

The employer says that 'no reasonable view of the evidence will support the judgment of the trial Court' in certain particulars.

On review by certiorari in workmen's compensation cases, where there is any legal evidence, or reasonable inference from legal evidence, to support the finding of facts of the trial court, such finding is conclusive, and the judgment thereon will not be disturbed. Sloss-Sheffield Steel & Iron Co. v. House, 217 Ala. 422, 116 So. 167; Horton v. DeLoach, 276 Ala. 357, 162 So.2d 453. We will look to see if there be any legal evidence, or reasonable inference therefrom, to support the court's findings in those particulars as to which appellant asserts a deficiency in the evidence.

Assignment 2. Employer argues that the finding that 'plaintiff suffered a sudden pain is not supported by any reasonable view of the evidence.'

The statute requires that in claims for compensation for hernia, it must be proved to the satisfaction of the court that 'it was accompanied by pain.' Title 26, § 279(F) 1(c). Plaintiff testified:

'Q. All right. You say you felt a sudden pain?

'A. Yes sir.'

Plaintiff's wife testified that when plaintiff came home on the day of injury, he did not look well and he appeared to have pain. This testimony we think sufficient to support the finding that the hernia was accompanied by pain.

It is true that plaintiff admitted that he had testified on pre-trial examination that: "Well no, I can't say that I felt any pain . . .."; and on the trial, that he did not recall whether he had pain 'at that time,' meaning, it seems, at the time three days after the accident when he went to the doctor.

There thus appears a conflict in plaintiff's own testimony with respect to his suffering pain, but that conflict does not prevent the court from finding that the hernia 'was accompanied by pain.'

The fact that a plaintiff makes contradictory statements, in his own case, does not justify the court in directing the verdict against the plaintiff. Which version of plaintiff's testimony should be believed is a question for the jury, although the fact that his testimony is conflicting could be considered by the jury in weighing the testimony and treated as a circumstance against him. The conflict may not have been intentional; it may have been due to the inability of the witness to describe accurately the situation on the occasion of the injury. Atkinson v. Dean, 198 Ala. 262, 269, 73 So. 479.

Where a party, on cross-examination, sought to limit or restrict his testimony on direct examination to a considerable extent, this court said the jury had the right to determine which statement made by plaintiff the jury would believe. Zemczonek v. McElroy, 264 Ala. 258, 263, 86 So.2d 824.

In the instant case, we think the trial court had the right to decide which of plaintiff's statements with respect to pain should be believed. Assignment 2 is not well taken.

Assignment 3. Employer argues that the finding that plaintiff's hernia appeared suddenly is not supported by any reasonable view of the evidence.

Plaintiff testified that he was lifting some trees, felt a sudden pain, and 'it just felt like a drop in my intestine back there. Like it dropped down.' We think Assignment 3 is without merit.

Assignment 4. Employer argues that the finding that plaintiff's hernia did not exist prior to the accident is not supported by any reasonable view of the evidence.

Plaintiff testified that, prior to the accident, he may have had a little trouble like hemorrhoids but had never had to go to a doctor about it; that he had worked for defendant for about two years and had missed only about three days from work; and that his work had been 'heavy type work.' There seems to be no dispute that plaintiff had suffered a rectal prolapse and that a man with such an injury could not do the type of work plaintiff had been doing. We think the evidence favorable to plaintiff supports an inference that plaintiff's hernia did not exist prior to the accident.

Assignments 8, 9, 10. Employer argues that the findings, (1) that plaintiff had suffered a permanent partial disability, and, (2) that plaintiff's permanent disability was sixty per cent of the body as a whole, were not supported by any reasonable view of the evidence.

Evidence favorable to plaintiff is his own testimony that as the result of his injury he couldn't walk for a time; that all of his work had been 'heavy type work'; that since his injury, if he stays on his feet too long he feels 'like it is coming back down.' There is also the testimony of Dr. Pennington that plaintiff had suffered a prolapse of the rectum of the third degree, which seems to be the most severe type of such prolapse; that if plaintiff continued to do heavy work, he could expect the condition to return; that Dr. Pennington had told plaintiff that 'he couldn't do heavy work'; and that the statement that plaintiff could not do heavy work was 'assuming he had no surgical repair.' The evidence indicates that plaintiff had been unemployed since the injury and that he was sixty-six years old at the time of trial.

There is no testimony using the words that plaintiff is partially permanently disabled, or that the extent of the permanent disability is sixty per cent, or any other number of per cent, of plaintiff's whole body. We do not think, however, that the law demands testimony, expert or otherwise, in the words 'sixty per cent permanent partial disability,' or any other number of per cent, in order to sustain a finding that plaintiff had a permanent partial disability amounting to sixty per cent of his body as a whole.

The Supreme Court of Nebraska has held that absence of testimony showing the percentage of permanent partial disability did not prevent the court from finding the amount of permanent partial loss. The court said:

'Insufficiency of the evidence to sustain the award is also urged. The principal complaint under this head is the absence of testimony showing definitely the percentage of the permanent partial loss. That there was a total disability for a time is shown beyond question, and the evidence sustains the finding below that it continued to the time of the decree. The proof of a permanent partial loss is equally clear, but the extent or percentage thereof is not so definite and certain. The determination of the issue requires the finding of an ultimate fact--a question for the trial court. The injured person and his physician may testify to the injury and to resulting conditions, but the deduction as to the percentage of loss is for the trial court. The conclusion may be reached from all the evidential facts and circumstances, without direct testimony as to the proportion of loss. Harper, Workmen's Compensation (2d Ed.) § 161; International Coal & Mining Co. v. Nicholas, 293 Ill. 524, 127 N.E. 703, 10 A.L.R. 1010. In the exercise of judicial discretion a reasonable estimate based on such evidence meets the requirements of the law. Otherwise the mission of the statute in this respect would fail.' Knuffke v. Bartholomew, 106 Neb. 763, 766, 184 N.W. 889, 890.

See also Petroleum Casualty Co. v. Seale, (Tex.Civ.App.), 4 S.W.2d 90, 92, 93, where the court said:

'It seems needless to further particularize testimony that so clearly appears to us to have warranted the finding made; it is true no witness specified a per cent. in figures of resulting incapacity, but that was not essential. 'Presumably the jury were men of ordinary intelligence, and as such were entitled to use their common sense upon all the evidence and draw the same conclusions from their observance of physical conditions, personal appearance, and the value of human testimony, as other rational persons in like circumstances might do.' Oilmen's Reciprocal Ass'n v. Harris (Tex.Civ.App.) 293 S.W. 580 at page 582, col. 2. They could therefore properly make their own estimate of the percentage of impairment.'

In the case at bar, plaintiff has worked all his life at 'heavy type work' manual labor. He has suffered a prolapsed rectum, and, according to the employer's expert witness, Dr. Dodson, a man with a prolapsed rectum is not able to do heavy laboring type work.

We are of opinion that we cannot say that there is no reasonable basis in the evidence to support the finding that plaintiff has suffered a sixty per cent permanent disability of his whole body. Assignments 8, 9, and 10 are not sustained.

Assignments 5, 6, and 7. Employer argues that the court erred in rendering its judgment because the finding that plaintiff suffered a rectal...