Snowbarger v. M. F. A. Central Co-op.

• Decision Date: 11 September 1961
• Docket Number: E,No. 48564,CO-OPERATIV,48564
• Citation: 349 S.W.2d 224
• Parties: Leota SNOWBARGER, Guardian of Marie Brown, Claimant, Respondent, v. M. F. A. CENTRALmployer, Appellant. and M. F. A. Mutual Insurance Company, Insurer, Appellant.
• Court: Missouri Supreme Court

Page 224

349 S.W.2d 224

Leota SNOWBARGER, Guardian of Marie Brown, Claimant, Respondent, v. M. F. A. CENTRAL CO-OPERATIVE, Employer, Appellant. and M. F. A. Mutual Insurance Company, Insurer, Appellant.

No. 48564.

Supreme Court of Missouri, En Banc.

Sept. 11, 1961.

Howard F. Major, Columbia, James A. McGee, Columbia, for appellants.

L. F. Cottey, Lancaster, Clare Magee, Unionville, for respondent.

HOLLINGSWORTH, Judge.

The employer and its insurer have appealed from a judgment of the Circuit Court of Schuyler County reversing an award of the Industrial Commission of Missouri denying workmen's compensation in the above captioned case. The appeal, notice of which was originally filed in this court, was transferred to the Kansas City Court of Appeals on jurisdictional grounds. See Mo., 317 S.W.2d 390. Following hearing of the appeal in that court, a majority thereof adopted an opinion written by Sperry, C., reversing the judgment of the circuit court and remanding the cause with directions to reinstate the award of no compensation made by the commission. See Mo.App., 328 S.W.2d 50, 54. That court also ordered that 'because of the importance of the question involved,' the cause be and it was transferred to this court pursuant to the provisions of Article V, Sec. 10, of the Constitution of Missouri, V.A.M.S. It was thereafter orally argued and submitted to this court en banc upon the briefs filed when the appeal was originally perfected.

Careful study of the opinion adopted by the Court of Appeals and the cases cited therein has convinced us that the opinion succinctly defines the issue presented and contains an adequate and sound analysis of the law involved. ¹ This court, therefore, adopts by reference the opinion of the majority of the Court of Appeals, adding thereto a brief discussion of certain contentions made in the brief of counsel for the claimant and in oral argument to this court.

Under Point II of claimant's brief, it is asserted: 'Appellants (defendants) ² offered no evidence whatever. Respondent's (claimant's) evidence was undisputed and unimpeached. The Commission's Award affirmatively finds all facts essential to a recovery in this case. The two man majority of the Commission simply reached the wrong conclusion on the admitted facts. Their conclusion that under those facts 'as a matter of law Brown's automobile accident and resulting death did not arise out of and in the course of his employment,' was, as it declares itself to be, a mere conclusion of law which is in nowise binding on this court.' We cannot agree that the award was predicated as a matter of law upon admitted facts. While it is true that the testimony of claimant's witness (defendant's acting manager) was not contradicted, the credibility of a material portion thereof is challenged throughout defendant's brief. Of course, the commission may not arbitrarily ignore competent, substantial and undisputed evidence and base its findings upon conjecture or personal opinion. Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, 880. But, on the other hand, the commission cannot be required to accept as true the testimony of claimant's witness if the commission, in exercising its power and duty to determine the facts, does not believe the testimony of that witness. Smith v. Smith et al., Mo., 237 S.W.2d 84, 89; Damore v. Encyclopedia Americana, Mo., 290 S.W.2d 105, 108. In reviewing the action of the commission in these respects, we consider the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the commission to determine whether the findings are supported by substantial and competent evidence upon the whole record and are not contrary to the overwhelming weight of the evidence. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136, 141[6, 7]; Brown v. Anthony Manufacturing Co., Mo., 311 S.W.2d 23, 27; Corp v. Joplin Cement Co., Mo., 337 S.W.2d 252, 258.

In this case we have no hesitancy in holding that the commission cannot be convicted of arbitrarily rejecting the interpretation placed by claimant's witness upon the meaning and purport of his conversation with Brown relating to the latter's proposed trip to Hedrick. In the first place, the statement made to Brown by the witness, to wit: 'If you think that guy can fix you up, all right * * * go on up there,' tends on its face to negative any direction given by the witness to Brown to make the trip. In the second place, it is evident that the whole commission undertook to and did evaluate the true meaning of the above statement; and that the majority of the commission rejected the interpretation placed upon it by claimant's witness. This is shown by the fact that the majority of the commission interpreted the statement to warrant a finding merely that 'the trip for the purpose of receiving said medical treatment was made with the knowledge any by the permission of the employer,' whereas one of the commissioners, dissenting, interpreted it to warrant a finding that Brown was injured 'while he was on a trip directed by and consented to by the employer.' (Emphasis supplied.) Those differing and conflicting findings authorize, as we construe them, but one conclusion, to wit: that the majority of the commission found the testimony of claimant's witness (to the effect that he directed Brown to make the trip) to be incredible.

Claimant's brief also urges a further contention in support of the judgment of the trial court. It is that compensation should be awarded claimant upon the mere hypothesis that Brown's trip was undertaken for the mutual benefit of both Brown and defendant, to wit: that the trip was for the preservation of Brown's health and in that respect 'tended to react ultimately to the benefit of the employer as well,' and therefore should be classified as an incident of his employment, citing Jackson v. Euclid-Pine Inv. Co., 223 Mo.App. 805, 22 S.W.2d 849. In that case the employee, a garge worker, was held to have...