State ex rel. Sei v. Haid

• Decision Date: 12 June 1933
• Docket Number: 32386
• Citation: 61 S.W.2d 950,332 Mo. 1061
• Parties: State ex rel. W. Sei, Relator, v. George F. Haid, William Dee Becker, Simon G. Nipper, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

61 S.W.2d 950

332 Mo. 1061

State ex rel. W. Sei, Relator, v. George F. Haid, William Dee Becker, Simon G. Nipper, Judges of the St. Louis Court of Appeals

No. 32386

Supreme Court of Missouri

June 12, 1933

Writ quashed.

Hall & Dame for relator.

(1) The opinion and ruling of respondents fails to follow last controlling decisions of this court. The evidence last taken indisputably showed present and continuing total disability which is a showing of more serious injury than that first found by the Compensation Commission. In the case of Wheeler v. Mo. Pac. Railroad Co., 42 S.W.2d 582 this court has given a meaning and effect to Section 42 of the Workmen's Compensation Act (Sec. 3340, R. S. 1929) with which, on the facts, respondents' said opinion and ruling is in conflict. (2) The ruling of this court is that said Section 42 authorizes and empowers the Workmen's Compensation Commission to change an award previously made when it transpires that the injury received has developed into a more serious injury than was found by this Commission at the previous hearing, and that this co-ordinates with the purpose of the Legislature in requiring that the claim should be filed within six months after the receipt of a compensable injury by the employee, while respondents' opinion rules and holds that "this statute was not intended to afford a method of correcting errors made in fixing the amount of the original award," and that a continued incapacity of the same kind and character (which necessarily shows a more serious injury) is not a change in condition within the meaning of this statute. Wheeler v. Railroad Co., 42 S.W.2d 579. (3) In the case of Elsas v. Montgomery Elevator Co., 50 S.W.2d 130 (and in other cases), this court has ruled that findings of fact by the Compensation Commission, when supported by any substantial evidence, are binding upon the appellate courts. The Compensation Commission found that employee had proved a change in his condition for the worse since the former award and this finding is supported by substantial evidence, which is set out in respondents' opinion. (4) There was substantial evidence adduced by employee, relator, to support the finding of the Commission that employee had proved a change in his condition within the meaning of the phrase "change in condition" as used in said Section 42, as interpreted by this court. Wheeler v. Railroad Co., 42 S.W.2d 579. (5) The finding of fifty-five weeks disability at the first hearing carried with it a finding that the disability ceased after fifty-five weeks. The finding then at the later hearing on Section 42 (change of condition), that disability from the same injury was present and continuing and of indefinite duration was a finding of change of condition, being a change from no disability to disability. Helle v. Eyerman Contracting Co., 44 S.W.2d 237; Elsas v. Montgomery Elevator Co., 50 S.W.2d 130.

Woodward & Evans for respondents.

(1) On certiorari to review an opinion of the Court of Appeals, the jurisdiction of this court is limited to a determination of the question of conflict between the opinion and the controlling decisions of the court. State ex rel. Coal Co. v. Trimble, 325 Mo. 277, 28 S.W.2d 1028; state ex rel. City v. Haid, 325 Mo. 107, 28 S.W.2d 102; State ex rel. Ins. Co. v. Trimble, 323 Mo. 458, 20 S.W.2d 46; State ex rel. Automobile Co. v. Daues, 323 Mo. 388, 19 S.W.2d 703. Where the opinion of the Court of Appeals deals with the construction of a statute, this court will not disturb the ruling unless the identical statute has been given a different construction in a controlling decision. State ex rel. Harrington v. Trimble, 326 Mo. 623, 31 S.W.2d 783; State ex rel. Ott v Trimble, 28 S.W.2d 75. Certiorari will not lie to quash an opinion of the Court of Appeals merely because the opinion is considered to be an incorrect statement of law. State ex rel. Weisheyer v. Haid, 26 S.W.2d 939; State ex rel. Insurance Co. v. Allen, 305 Mo. 607, 267 S.W. 379. (2) The court will not look beyond the facts set out in the opinion of the Court of Appeals in passing upon the question of conflict. State ex rel. Insurance Co. v. Allen, 306 Mo. 197, 267 S.W. 837; State ex rel. Greer v Cox, 274 S.W. 373; State ex rel. Ward v. Trimble, 327 Mo. 773, 39 S.W.2d 372; State ex rel. Silverforb v. Smith, 43 S.W.2d 1057. (3) The opinion of the Court of Appeals is not in conflict with the controlling decisions of this court, but, on the contrary, is in absolute conformity therewith. It gives a sound construction to a statute which has not been heretofore fully defined, and follows the general trend of construction of similar statutes in other jurisdictions. Cox v. Industrial Comm., 282 P. 610; Independence Indemnity Co. v. White, 27 S.W.2d 529; Hartford Hosiery Mills v. Jernigan, 259 S.W. 546; Mullen v. Department of Labor, 288 P. 926; Home Accident Ins. Co. v. McNair, 161 S.E. 131; Casper v. U.S. F. & G. Co., 33 S.W.2d 189; Brown v. Leard, 131 So. 311; Graney's Case, 123 Me. 571, 124 A. 204; Belleville Brick & Tile Co. v. Industrial Comm., 305 Ill. 577, 137 N.E. 401; State v. Industrial Comm., 125 Ohio St. 27, 180 N.E. 376; Yonirenka v. Am. Steel & Wire Co., 137 A. 26.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This is a proceeding in certiorari to quash the opinion of the St. Louis Court of Appeals in the case of Sei v. Guthrie & Company, 50 S.W.2d 664. The St Louis Court of Appeals there reversed a judgment of the circuit court in favor of relator and remanded the cause with directions to set aside the award of the Commission. The facts, hereinafter stated, are shown by the opinion of the St. Louis Court of Appeals, where we must go to get them. [State ex rel. Koenen v. Daues, 288 S.W. 14; State ex rel. Arndt v. Cox, 327 Mo. 790, 38 S.W.2d 1079; State ex rel. Silverforb v. Smith, 43 S.W.2d 1054; see, also, State ex rel. Union Biscuit Co. v. Becker, 316 Mo. 865, 293 S.W. 783.] Relator, on August 11, 1928, sustained a fractured skull and other bruises when an iron rod fell on his head. He was provided medical attention and paid compensation by his employer through its insurer. He filed a claim with the Workmen's Compensation Commission in due time and was given a hearing in September, 1929. On September 26, 1929, after a hearing, followed by a review by the full Commission, an award was entered for fifty-five weeks of temporary total disability which was for such disability from the date of the accident to the first day of September, 1929. The Commission's finding of fact was that there was no further disability, either permanent or temporary, total or partial, after that date. Relator did not appeal and was paid this compensation. The evidence upon that hearing is stated in the opinion of the St. Louis Court of Appeals, as follows:

"The employee testified. . . . He was temporarily dazed, and was taken immediately to the office of Dr. Webb, who sewed up the cut in his head and sent him to St. Mary's Hospital. He remained in this hospital for a short time, and then reentered another hospital, where he was placed under the care of Dr. Carrol Smith. He testified that he had been unable to do any work since the date of the accident, and at the time of the hearing was growing weaker and suffered from dizziness, headaches, pressure in his head, and a jerking in his throat, which caused him to vomit.

"Dr. Smith testified that he first saw the claimant on August 16, 1928, and commenced to treat him on October 2, 1928, and from that time he was under the doctor's care, until February 2, 1929. This doctor also made an examination on September 3, 1929, a day before the hearing. When the claimant was first examined he was found to be suffering from laceration of the scalp, a fractured skull, and a bruise on the left arm just below the shoulder joint. The care and treatment given him between October, 1928, and February, 1929, was mostly systematic treatment. The claimant complained of dizziness, darkness before his eyes, pressure about his temples and the back of his head, numbness about the feet and arms, and general weakness. There was no evidence of organic brain injury, and on February 2, 1929, there was no evidence of any physical injury. At this time claimant was suffering from psychoneurosis. At the examination on September 3, 1929, claimant complained of tightness in his chest and inability to talk well. He said that he would choke up in his throat and have dizzy spells and at time would shake all over. He again complained of weakness, pressure on the side of his head, and difficulty in swallowing. There was no sign of injury, but some increased activity in the reflexes. The same diagnosis of psychoneurosis was made. After this examination, Dr. Smith's opinion was that if the claimant had engaged in some light form of work his condition would have been normal at the time of the hearing.

"Dr. Unterberg stated that he examined the claimant on January 22, 1929. He said claimant then complained of pressure on the top of his head and of pain in his head, which moved over to his eyes, and stated that he was growing weaker and that his arms and legs were numb; that when he walked for any distance he became nauseated and sometimes vomited; that it was necessary for him to go through peculiar movements with his mouth and throat in order to swallow. The reflexes were normal, with the exception of some tremor of the eyelids, lips and tongue. The claimant was very emotional, but not suffering from any organic injury. This doctor stated he was suffering from psychoneurosis, with emotional instability, but this was not permanent, and should be cured with proper treatment and a settlement of any claims he might have."

More than a year after this final award, relator...