Simmons v. Mississippi River Fuel Corporation

• Citation: 43 S.W.2d 868
• Decision Date: 08 December 1931
• Docket Number: No. 21872.,21872.
• Parties: SIMMONS v. MISSISSIPPI RIVER FUEL CORPORATION et al.
• Court: Court of Appeal of Missouri (US)

43 S.W.2d 868

SIMMONS v. MISSISSIPPI RIVER FUEL CORPORATION et al.

No. 21872.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Appeal from Circuit Court, Madison County; Barton H. Boyer, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Law by Fred Simmons, claimant, for injuries, opposed by the Mississippi Fuel Corporation, employer, and the United States Fidelity & Guaranty Company, insurance carrier. From a judgment reversing the award of the compensation commissioner, the employer and the insurance carrier appeal.

Reversed and remanded, with instructions.

Carter, Jones & Turney, and Geo. A. McNulty, all of St. Louis, and Davis & Damron, of Fredericktown, for appellants.

John H. Keith, of Ironton, and W. H. Stumbaugh, of Fredericktown, for respondent.

HAID, P. J.

This is an appeal from a judgment reversing the award of the Compensation Commission which found that the employee's condition was not the result of accident nor was his condition aggravated by accident arising out of and in the course of his employment, but said condition is the result of causes independent of his employment. It was agreed that the employer had paid the employee $118.63.

The first contention presented is that the circuit court erred in holding invalid that part of section 3342, Revised Statutes of Missouri 1929, which relates to the jurisdiction of the circuit court on appeal from the Compensation Commission. This question has been definitely decided by the Supreme Court adversely to the ruling of the circuit court, and it is therefore unnecessary to discuss the same here. De May v. Liberty Foundry Co. (Mo. Sup.) 37 S.W.(2d) 640, loc. cit. 645; Waterman v. Chicago Bridge & Iron Works (Mo. Sup.) 41 S.W.(2d) 575, loc. cit. 577.

The next contention is that the circuit court erred in reversing the finding and award of the commission. In considering the Compensation Act of this state (Rev. St. 1929, § 3299 et seq.), our courts have held on numerous occasions that, if the evidence before the commission is sufficient to warrant the finding made by it, such finding, like the verdict of a jury, is binding on appeal. De Moss v. Evens & Howard F. B. Co. (Mo. App.) 37 S.W.(2d) 961, loc. cit. 962 and cases cited; Jackson v. General Metals Ref. Co., 43 S.W.(2d) 865, decided by this court in opinion handed down herewith. In considering the question whether the evidence sustains the finding made by the commission, the evidence must be viewed in the light most favorable to support the finding. De Moss v. Evens & Howard F. B. Co. (Mo. App.) 37 S.W.(2d) 961, loc. cit. 962, and cases cited. And, where the facts are in dispute, the finding of the commission is conclusive and binding on appeal, if there is substantial evidence to support it. Bise v. Tarlton (Mo. App.) 35 S.W.(2d) 993, loc. cit. 994; Leilich v. Chevrolet Motor Co. (Mo. Sup.) 40 S.W.(2d) 601, loc. cit. 604; Jackson v. General Metals Ref. Co., 43 S.W.(2d) 865, decided by this court herewith and cases cited.

The facts as disclosed by the record are as follows:

The claimant and other employees of the Mississippi River Fuel Corporation, on September 24, 1929, were carrying an eight or ten inch pipe, and, as they reached a ditch, they stopped, claimant stating that some of the men got over the ditch, but that, while he was astraddle of the ditch, one of the men with him fell into the ditch, leaving the whole weight upon claimant; that claimant was half stooped and received an awful jerk across the back; he left the place and went back to where he was first at work; that he was then sent to another place, and finished the day setting fence posts; that he did not work after that day, but about a week and a half thereafter went to Barnes Hospital at St. Louis, where he was operated upon for a double hernia; that, after his discharge from that hospital, he went to one at Ironton, about February 1st, where he was treated by Dr. Gay; that there they took an X-ray, and he remained about five weeks; he suffered misery across the small of his back which hinders him from getting about, and it interferes with his walking and stooping over, and he is unable to sleep; that up to the time of the injury he had never suffered pains of this character; that he told Dr. Gay about the hernia bothering him, but the doctor did nothing for it; that ever since he left the latter hospital he has used a cane.

Dr. George W. Gay testified for claimant that he is in charge of the Arcadia Valley Hospital at Ironton; that he is not an X-ray specialist, but is a surgeon, and uses the X-ray in connection with his practice; that he X-rayed claimant several times, and would call his case a rare and technical one that would better be interpreted by an expert; that claimant had bad tonsils and sinus trouble; that from the X-ray there is a fracture of the spinous process of the fifth lumbar vertebra; that in his opinion trauma had something to do with the condition found in his back; that he found the claimant had an infection of the throat, teeth, and sinuses, and those conditions cause arthritis; that he found his lumbar curve was absent, had been ironed out; that you could find this condition existing in a person that never had met with an accident; that the vertebra in question is the fifth; the spinous process is out of line, which is not uncommon; that he would not say that it was due to any particular accident; that it might be the result of a tubercular infection, but it does not have that appearance.

John Matthews, for the claimant, testified that he was employed with the claimant; that witness was at the front end of the pipe that was being carried, and he stepped down into the ditch to get to the other side, and this threw the weight upon the other end, and the man there with claimant was standing so that he could not hold his end and had to let go; that immediately after this the claimant remarked that he was done, put his hand on his hip, and said he had strained it.

On behalf of the employer, Dr. S. C. Slaughter testified that he first saw claimant on October 1st, and he reported that he had injured his back carrying a pipe, and on examination the doctor found a double inguinal hernia; that the doctor treated him about ten days until he...