State ex rel. Melbourne Hotel Co. v. Hostetter

• Decision Date: 04 April 1939
• Docket Number: No. 36201.,36201.
• Citation: 126 S.W.2d 1189
• Court: Missouri Supreme Court
• Parties: STATE OF MISSOURI at the relation of MELBOURNE HOTEL COMPANY, Employer, and HARTFORD INSURANCE COMPANY (Hartford Accident & Indemnity Company), Insurer, Relators, v. JEFFERSON D. HOSTETTER ET AL., Judges of the St. Louis Court of Appeals.

126 S.W.2d 1189

STATE OF MISSOURI at the relation of MELBOURNE HOTEL COMPANY, Employer, and HARTFORD INSURANCE COMPANY (Hartford Accident & Indemnity Company), Insurer, Relators, v. JEFFERSON D. HOSTETTER ET AL., Judges of the St. Louis Court of Appeals.

No. 36201.

Supreme Court of Missouri.

Court en Banc, April 4, 1939.

Certiorari.

OPINION OF COURT OF APPEALS QUASHED IN SO FAR AS IT GIVES SPECIFIC DIRECTIONS TO THE COMMISSION WITH REGARD TO ITS FUTURE ACTION.

Moser, Marsalek & Dearing for relators.

(1) The opinion of respondents is in conflict with controlling opinions of this court, in that it appears from the face of the opinion that respondents failed to accept as true the testimony in support of the findings and award of the Missouri Workmen's Compensation Commission, failed to draw all reasonable inferences arising from the evidence in support of the award, and failed to reject countervailing evidence and inferences. The respondents, on the contrary, based their decision on evidence and inferences unfavorable to the award and finding of the commission. (a) This court has held repeatedly that the findings and award of the commission are to be accorded the force and effect of the verdict of a jury; that the findings made are conclusive upon the reviewing court if sustained by sufficient competent evidence, and the appellate court must, in testing the sufficiency of the evidence, consider the matter as they would a demurrer offered at the close of the case in a law action, considering only such evidence as tends to support the findings of the commission, together with all reasonable inferences to be drawn therefrom. That the respondents did not so proceed, in determining the case before them, appears from the face of their opinion, and thus brings the opinion in conflict with the statutes and the controlling decisions of this court, construing said statutes. Secs. 3339, 3342, R.S. 1929; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W. (2d) 236; Gillick v. Fruin-Colnon Const. Co., 334 Mo. 135, 65 S.W. (2d) 927; Burgstrand v. Crowe Coal Co., 336 Mo. 119, 77 S.W. (2d) 97; Shroyer v. Mo. Livestock Comm. Co., 332 Mo. 1219, 61 S.W. (2d) 713; Adams v. Continental Life Ins. Co., 101 S.W. (2d) 82; Gould v. C.B. & Q. Ry. Co., 315 Mo. 723, 290 S.W. 135; Buesching v. Laclede Gas Light Co., 73 Mo. 231. (b) The facts stated in the opinion of the respondents, and also the excerpts from the testimony contained in relator's motion for hearing, should be considered by this court, since the testimony set out in the motion was incorporated by respondents into their opinion by reference, and forms part of the basis of their decision. State ex rel. Union Biscuit Co. v. Becker, 316 Mo. 865, 293 S.W. 783; State ex rel. Talbott v. Shain, 66 S.W. (2d) 826. (c) "If an opinion of the Court of Appeals either rules differently from this court's ruling as to the legal effect of the same or substantially similar facts, or contravenes a general principal of law stated in this court's decisions, then there is a conflict of decision." State ex rel. Heuring v. Allen, 112 S.W. (2d) 843; State ex rel. Kroger Gro. & Baking Co. v. Haid, 323 Mo. 9, 18 S.W. (2d) 478. (d) Sections 3339, 3342, Revised Statutes 1929, have frequently been construed by this court to require the reviewing court, in a compensation case, to consider only the evidence and inferences supporting the award. The failure of respondents to follow this court's construction of said statute is cognizable on certiorari. State ex rel. Conn. Fire Ins. Co. v. Cox, 306 Mo. 537, 268 S.W. 87; State ex rel. Arndt v. Cox, 327 Mo. 790, 38 S.W. (2d) 1079. (2) The opinion of the respondents further conflicts with the controlling decisions of this court in that the respondents, in their disposition of the case before them, reversed the judgment of the circuit court with instructions to that court, to be transmitted by it to the commission, directing the findings of fact to be made and procedure to be followed by the commission. (a) It is definitely settled by the decisions of this court that in the disposition of an appeal in a compensation proceeding the reviewing court has no authority to make a finding of facts and enter a judgment awarding compensation, or to direct the commission to make an award in accordance with the court's findings. Burgstrand v. Crowe Coal Co., 336 Mo. 119, 77 S.W. (2d) 100; Schultz v. Great Atl. & Pac. Tea Co., 331 Mo. 616, 56 S.W. (2d) 129; Russell v. Ely & Walker D.G. Co., 332 Mo. 645, 60 S.W. (2d) 44; State ex rel. Randall v. Shain, 108 S.W. (2d) 122.

William A. Dorsey and Edward C. Friedewald for respondents.

(1) The question of whether the evidence before the Compensation Commission sustained the award made by the commission was a question entirely within the jurisdiction of the St. Louis Court of Appeals, as an original proposition, and is not for consideration on certiorari. State ex rel. v. Ellison, 190 S.W. 274, 269 Mo. 151; State ex rel. Hancock Mut. Life Ins. Co. v. Allen, 282 S.W. 46; State ex rel. Shaw Transfer Co. v. Trimble, 250 S.W. 396. (2) Only when the Court of Appeals exceeds its jurisdiction by failing to follow a decision by the Supreme Court, on the same or similar facts does the Supreme Court have the right to quash the opinion on certiorari, and the proceeding is limited to the sole question of whether there is a conflict, and the Supreme Court never has the right to correct errors of the Court of Appeals on certiorari except where there is such a conflict. State ex rel. Gillman v. Robinson, 264 Mo. 661, 175 S.W. 610; State ex rel. Mechanics Amer. Natl. Bank v. Sturgis, 276 Mo. 549, 208 S.W. 458. (3) The Court of Appeals can construe and define for itself the provisions of a statute of this State where the Supreme Court has not previously passed and defined such provision. State ex rel. Tummons v. Cox, 282 S.W. 694; State ex rel. Wabash Railroad Co. v. Ellison, 204 S.W. 396; State ex rel. Majestic Mfg. Co. v. Reynolds, 186 S.W. 172. (4) When evidence is reasonably susceptible to but a single inference, question was reviewable by appellate court as one of law, regardless of whether question was of law or fact as presented to the Compensation Commission. Maltz v. Jackoway-Katz Cap Co., 82 S.W. (2d) 909; Higgins v. Heine Boiler Co., 41 S.W. (2d) 565; Teague v. Laclede Christy Clay Products Co., 52 S.W. (2d) 880. (5) The ascertainment of facts as a prerequisite to the application of the law is a necessary incident of the jurisdiction conferred upon the appellate court, and the Court of Appeals has the right to examine into the details of the evidence to determine the sufficiency of the evidence to support the award, and to reverse the award of the Compensation Commission if not supported by sufficient competent evidence. The ascertainment of the facts of a given case being wholly within the competence of the Court of Appeals, upon a review of its decision in a certiorari proceeding, the Supreme Court is bound by its conclusion in that respect. State ex rel. Kroger Gro. & Baking Co. v. Hostetter, 98 S.W. (2d) 683.

HAYS, J.

Certiorari to the judges of the St. Louis Court of Appeals by which it is sought to quash the opinion of said court in the cause of Maude Caldwell, Appellant, v. Melbourne Hotel Company and Hartford Accident & Indemnity Company, Respondents, 116 S.W. (2d) 232.

The case before the respondent judges was an appeal by Mrs. Caldwell from a judgment of the Circuit Court of the City of St. Louis affirming the final award of the Missouri Workmen's Compensation Commission, whereby Mrs. Caldwell was awarded compensation of $10 per week for 207 weeks for permanent partial disability. Respondents reversed the judgment of the circuit court and remanded the case with instructions to that court to remand the case to the commission "with instructions to make a temporary partial award of compensation for temporary total disability; and with further instructions to the commission to retain jurisdiction of the cause and keep the same open until a final award can be made, after a hearing, upon application of any party or upon the commission's own motion."

On May 17, 1934, Mrs. Caldwell, while in the employ of relator Melbourne Hotel Company, suffered a fall in which she sustained a fracture through the neck of her left femur. After a hearing, on March 24, 1936, a referee of the commission made an award finding that the employee had suffered a permanent partial disability and allowing her compensation at the rate of $10 per week for 207 weeks. As the nature of the injury, the referee found as follows: "Parts of the body injured by accident: left hip. Exact nature of any permanent injury: complete loss of left leg at hip joint." On November 6, 1936, the employee, at her own request appeared before the full commission, walking on crutches, and was viewed by the commission. After a hearing before the full commission, on November 12, 1936, that body, on January 13, 1937, rendered its final award unanimously affirming the award of the referee. This is the background of the case as stated in respondents' opinion.

Said opinion states the issue on appeal as follows: "Employer and insurer contend that the disability of the plaintiff was and is confined to her left leg, and that she has been awarded the maximum amount she would be entitled to receive for the total and permanent loss of said leg by amputation at the hip joint." The opinion proceeds to state in detail the testimony as given at the final hearing before the commission by the five witnesses examined, namely, the employee and her attending physician and three physicians who testified for the employer.

Next respondents' opinion states the well-established rules governing awards made by the commission, citing several authorities which announce and apply those rules. After which the court made the following ruling: "Giving the principles announced in the abovecited cases their...