Stapleton v. Gunn, 22870.
| Decision Date | 03 April 1934 |
| Docket Number | No. 22870.,22870. |
| Citation | 69 S.W.2d 1104 |
| Parties | STAPLETON v. GUNN et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pike County; E. B. Woolfolk, Judge.
"Not to be published in State Reports."
Proceeding under the Workmen's Compensation Act by Sylvester Stapleton, claimant, opposed by E. S. Gunn, employer, and the United States Fidelity & Guaranty Company, insurer. From a judgment affirming an award of the Workmen's Compensation Commission in favor of claimant, the employer and insurer appeal.
Reversed and remanded, with directions.
Carter & Jones, Richard S. Bull, and Wm. A. Dorsey, all of St. Louis, for appellants.
V. S. Smith, of Bowling Green, for respondent.
This is an appeal taken by the employer and insurer under the Missouri Workmen's Compensation Act () from the judgment of the circuit court of Pike county, affirming an award of the commission in favor of an injured employee.
No question is raised here as to the liability of the employer and insurer to the employee under the act; this appeal being directed solely to the question as to whether or not the award entered by the commission was supported by sufficient competent evidence.
It appears that the employee sustained an accident on March 29, 1931, while working for E. S. Gunn, and under a temporary agreement the insurer paid the employee a stipulated sum each week until, upon request for a hearing and rating upon a permanent basis, the commission heard the claim on its merits.
The testimony adduced tended to prove that the employer hired the employee's truck, together with his personal services for the operation thereof, at $1.50 per hour, for the hauling of iron beams from Bowling Green, Mo., to a place nearby where a bridge was being constructed by the employer; that on the day in question, while the truck was being unloaded, one of the standards of the truck supporting the iron beams broke, causing one of the beams to fall upon the employee, injuring him in such a manner that, as the result thereof, his sphincter muscle controlling the functions of his rectum and bladder was paralyzed; that this paralysis was of a permanent nature resulting in incontinence of the urine and a passive incontinence of the feces. There is testimony tending to prove that this condition is permanent and that the employee cannot return to the work he was doing at the time he met with his injury and can perform only light work; that an attempt to do any heavy work brings on an irritation from which an infection "would likely follow."
Upon the testimony adduced, the referee found that the employment that the employee was engaged in was seasonable, averaging 250 days per year, and that the employee's daily wage was $5, and that the employee had suffered permanent partial disability of 66 2/3 per cent. based on a duration of 400 weeks. On review the full commission affirmed the award. This final award was duly appealed to the circuit court of Pike county, where it was affirmed, and in due course this appeal follows.
Appellants contend that there is not sufficient competent evidence to sustain the finding by the commission that the seasonable employment engaged in by the employee was for 250 days in the year, nor to support the finding that the employee's daily wage averaged $5 per day, and that therefore there was not sufficient competent evidence to sustain a finding that the employee had a permanent partial disability of 66 2/3 per cent. (resulting in an allowance of compensation for 266.66 weeks based on 400 weeks).
It no longer needs citation of authorities that the award of the commission cannot rest upon surmise, speculation, or conjecture, but must be based upon competent evidence, and that in determining the sufficiency of the evidence to support the finding of facts of the commission we must view the evidence in the light most favorable to the employee and allow him the benefit of all favorable inferences arising therefrom to support the conclusion reached by the commission.
Upon the question as to the employee's daily salary, we have examined the record and find that the employee himself was the sole witness whose testimony bears upon this point. He testified in effect that Gunn, the employer, hired him and his truck...
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