State ex rel. Ely & Walker Dry Goods Co. v. Cox

• Citation: 73 S.W.2d 743,335 Mo. 596
• Decision Date: 19 June 1934
• Docket Number: 32321
• Parties: State of Missouri at the Relation of Ely & Walker Dry Goods Company, a Corporation, and American Mutual Liability Insurance Company, a Corporation, Relators, v. Argus Cox, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals
• Court: Missouri Supreme Court

73 S.W.2d 743

335 Mo. 596

State of Missouri at the Relation of Ely & Walker Dry Goods Company, a Corporation, and American Mutual Liability Insurance Company, a Corporation, Relators, v. Argus Cox, Walter E. Bailey and Robert J. Smith, Judges of the Springfield Court of Appeals

No. 32321

Supreme Court of Missouri

June 19, 1934

Writ quashed.

Wm R. Schneider and J. J. Cooney for relators.

(1) The findings of fact made by the Missouri Workmen's Compensation Commission in this case, being supported by substantial competent evidence, are in the nature of a special verdict and therefore binding and conclusive on the courts on appeal. Leilich v. Chevrolet Motor Co., 40 S.W.2d 604; Woods v. Am. Coal & Ice Co., 25 S.W.2d 144; Keithley v. Stone & Webster Eng. Corp., 49 S.W.2d 296; State ex rel. Brewen-Clark Syrup Co. v. Mo Workmen's Compensation Comm., 8 S.W.2d 899; 28 R. C L. 828; Albertsworth, Judicial Rev. of Administrative Action 35 Harv. L. Rev. 127; Ross, Applicability of Common Law Rules of Evidence in Procedure before Workmen's Compensation Commissions, 36 Harv. L. Rev. 263; Pillsbury, Administrative Tribunals, 37 Harv. L. Rev. 405; Dicey, Development of Administrative Law in England, 31 Law Quar. Rev. 148; Isaac's Judicial Review of Administrative Findings, 30 Yale L. J. 781; Maryland Casualty Co. v. Miller, 36 Ga.App. 631, 137 S.E. 788; Hartley v. Ind. Comm., 123 Ore. 310, 261 P. 71; Spiegel's House Furn. Co. v. Industrial Comm., 288 Ill. 422, 123 N.E. 606, 6 A. L. R. 540; Booth Fisheries Co. v. Industrial Comm., 271 U.S. 208, 46 S.Ct. 491, 70 L.Ed. 908. Evidence precisely the same as that given in the case at bar has been judicially determined to be substantial, competent and sufficient. Lekometros v. Can Co., 46 S.W.2d 964. (2) On appeal the court should consider only that evidence which is most favorable to support the findings and award of the commission. In the case at bar, the court erroneously failed to do this and, on the contrary, set out in its opinion at great length the evidence which conflicted with that which supported the findings and award. Biswell v. Railroad Co., 49 S.W.2d 203; Schulte v. Tea & Coffee Co., 43 S.W.2d 833; Beltz v. Columbia Tel. Co., 24 S.W.2d 228. (3) The court weighed the evidence in the case at bar and concluded that the evidence which supported the findings of fact and judgment of the circuit court weighed more than did the evidence which supported the commission. Said action on the part of the respondents was in violation of the rights of the relators and contrary to the last previous decision of this court. State ex rel. v. Haid, 38 S.W.2d 48. (4) It is contrary to the letter and spirit of the Missouri Workmen's Compensation Act for the courts to arrogate to themselves the right or privilege to weigh the evidence or of a trial de novo by merely attaching to their decision the statement: "We find insufficient competent evidence in the record to warrant the making of the award" when, as in the case at bar, the record shows a direct conflict in the testimony and the medical experts of greatest experience supporting the commission rather than the findings of the court, improperly made. State ex rel. v. Haid, 38 S.W.2d 48; Sec. 3342, R. S. 1929; Lekomitros v. Can Co., 46 S.W.2d 964. (5) Harmony and uniformity should prevail in the decisions of appellate courts that litigants may know their rights and act accordingly, but if the courts may at any time arrogate to themselves the right to weigh the competent conflicting evidence and become triers of facts after the commission has found the facts on such evidence then litigants will never know what their rights and liabilities are, and harmony and uniformity will not prevail in compensation cases. State ex rel. v. Haid, 38 S.W.2d 44. (6) "I think," or "It is my impression that," etc., in the testimony of a medical expert "amounted to an assertion of a professional opinion that the result in question most probably came from the assigned cause." Lacey v. Washburn & Williams Co., 160 A. 455; Schneider's Monthly Supplement (July, 1932), p. 20.

Harry C. Blanton for respondents.

(1) In certiorari proceedings the Supreme Court will not go to the bill of exceptions as printed in the abstract for evidentiary facts, but will go only to the opinion of the Court of Appeals, and will not review the case as one upon appeal to determine de novo whether there was evidence to take the case to the jury (or to justify the award of the commission). State ex rel. Dunham v. Ellison, 213 S.W. 459, 278 Mo. 649; State ex rel. Ins. Co. v. Allen, 243 S.W. 839, 295 Mo. 307; State ex rel. Dowell v. Allen, 250 Mo. 580; State ex rel. Ins. Co. v. Allen, 267 S.W. 832, 306 Mo. 197; State ex rel. Horspool v. Haid, 40 S.W.2d 611; State ex rel. Ward v. Trimble, 39 S.W.2d 372; State ex rel. Silverforb v. Smith, 43 S.W.2d 1054. (2) Where Court of Appeals in its opinion recognizes ruling of Supreme Court, but distinguishes it on facts, certiorari will be quashed. State ex rel. Ry. Co. v. Ellison, 173 S.W. 690, 263 Mo. 509. (3) On certiorari, the Supreme Court does not decide how the Court of Appeals should decide the case, but only determines whether such opinion is in conflict with decisions of the Supreme Court. State ex rel. Natl. Bank v. Ellison, 181 S.W. 998, 266 Mo. 423; State ex rel. Seminary v. Ellison, 216 S.W. 967. (4) In certiorari, the Supreme Court will only consider whether in conflict with its own decisions and is not interested in conflicts between the several Courts of Appeals. State ex rel. Lumber Co. v. Robertson, 197 S.W. 79; State ex rel. Packing Co. v. Reynolds, 230 S.W. 642, 287 Mo. 697; State ex rel. Mann v. Trimble, 232 S.W. 100; State ex rel. Cox v. Trimble, 279 S.W. 60, 312 Mo. 322. (5) Where there is not sufficient competent evidence in the record to warrant the award made by the commission, the circuit court is justified in reviewing the decision, the respondents were right in so holding. Sec. 3342, R. S. 1929; Johnson v. Reed, 32 S.W.2d 107; Allison v. Construction Co., 43 S.W.2d 1063; Sawtell v. Stern Bros. & Co., 44 S.W.2d 264; Thurman v. Fleming Coal Co., 49 S.W.2d 288; Teague v. Laclede-Christy Co., 52 S.W.2d 880.

Fitzsimmons, C. Cooley and Westhues, CC., concur.

OPINION

FITZSIMMONS

This case comes to the writer upon reassignment. It is a certiorari proceeding to determine whether the opinion of the Springfield Court of Appeals in the case of Lillian Kenser, Respondent, v. Ely & Walker Dry Goods Company and American Mutual Liability Insurance Company Appellants, 48 S.W.2d 167, is contrary to controlling decisions of the Supreme Court. We quote and paraphrase, by turns, from the opinion of the Court of Appeals as follows:

"This is an appeal from the Circuit Court of Dunklin County reversing the order, decision, findings, and award of the Missouri Workmen's Compensation Commission and remanding said cause to the commission.

"The plaintiff claimed that she was hurt on October 17, 1929, while employed by Ely & Walker Dry Goods Company, at its factory located at Kennett, Missouri. There is no question as to her employment at the time of the alleged injury, and no question as to her filing of a claim and the form thereof, nor is there any question as to the American Mutual Liability Insurance Company being the insurer.

"A claim was filed in time, a hearing was had before the commission, and the decision of the commission was as follows:

"'The undersigned (the full commission) hereby find in favor of the above employer and insurer and against the above employee and award no compensation for the above alleged accident. For the reason that employee's condition is not the result of accident arising out of the course of her employment, but is due to cause independent of said employment.'

"The plaintiff took an appeal to the circuit court, and the record and evidence heard before the commission was presented to the court and on July 24, 1930, the circuit court rendered" a judgment finding that there was not sufficient competent evidence in the record to warrant the Workmen's Compensation Commission in making an award in favor of the employer and insurer, and also finding that "the employee's condition is the result of an accident arising out of and in the course of her employment and that the award of the Compensation Commission is, therefore, erroneous." The circuit court, accordingly, by its judgment, remanded the cause to the Workmen's Compensation Commission with directions to ascertain and award to the employee the compensation due her by law. From this judgment the employer and insurer appealed to the Springfield Court of Appeals, which, by its opinion which we are to examine, affirmed the judgment below. The employer and insurer thereupon made application to this court for a writ of certiorari. The writ was issued and served and respondent judges made full and proper return. Material parts of the claim of the employee Lillian Kenser as set out in the opinion, are as follows:

"14. Exact nature of any permanent injury: Right hand and wrist probably permanently disabled.

"15. How accident happened, cause, and work employee was doing for employer at the time: It was the duty of the employee to sprinkle or spray shirts, which had been dyed, and then iron the same, and after ironing, to pin the shirts. While engaged in pinning one of the shirts, employee accidentally stuck a pin in the middle finger on the right hand, which became infected and poisoned from the dye used on the shirts. Shortly thereafter and on the same day, employee observed that the point where she was pricked by the pin, first in the finger and then the hand, became painful, inflamed and swollen and gradually spread to almost her entire body."

The employer denied that...