Waring v. Metropolitan Life Ins. Co.

• Decision Date: 04 May 1931
• Citation: 39 S.W.2d 418,225 Mo.App. 600
• Parties: CECIL WARING, RESPONDENT, v. METROPOLITAN LIFE INSURANCE, AND TRAVELERS INSURANCE COMPANY, APPELLANTS
• Court: Kansas Court of Appeals

39 S.W.2d 418

225 Mo.App. 600

CECIL WARING, RESPONDENT, v. METROPOLITAN LIFE INSURANCE, AND TRAVELERS INSURANCE COMPANY, APPELLANTS

Court of Appeals of Missouri, Kansas City

May 4, 1931

Appeal from the Circuit Court of Jackson County.--Hon. Clarence A Burney, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Morrison Nugent, Wylder & Berger for respondent.

Mosman Rogers & Buzard for appellants.

BOYER, C. Campbell, C., concurs. Trimble, P. J., absent.

OPINION

BOYER, C.

Proceeding under Workmen's Compensation Law. Cecil Waring filed a claim for compensation July 30, 1928, in which he stated that he was injured on or about March 12, 1927, by an accident arising out of and in the course of his employment. The employer was the Metropolitan Life Insurance Company, and its insurer the Travelers Insurance Company. He reported that the parts of his body injured were the "lower part of spine and both knees," and that the nature of permanent injury was "continuous pain in both knees and lower part of spine," and in describing how the accident happened reported that he "slipped and fell on the stair steps, steps being wet and slippery, was reporting at district office for weekly meeting of the agents."

The answer of the employer and insurer denies that the employee's condition was the result of an accident, and alleges that it is the result of a health condition, and also alleges that the employee failed to notify the employer of his alleged accident as provided by section 38 of the Act, and also neglected to file a claim for compensation within the statutory period as provided in section 39 of the Act. The first hearing in the case was begun and held before a single member of the commission on September 27, 1928. The hearing was adjourned to October 29th, at which time further evidence was received by the same commissioner and apparently both sides introduced all the evidence desired. Thereafter on November 22, 1928, the commissioner made an award in which he found in favor of the employer and the insurer and against the employee and allowed no compensation. The award of the commissioner contains the following:

"1. Employee has failed to prove from the evidence that his disability is caused from an accident arising out of and in the course of his employment.

"2. Where the employee lost no time from work on account of the accident, compensation must be denied."

The foregoing is all there is in the award in the nature of findings of fact and rulings of law. In due time claimant filed application for review by the full commission, and thereafter filed a request for a submission on review under date of December 4, 1928, received by the commission December 6, 1928, in which it is stated:

"The undersigned hereby requests the Missouri Workmen's Compensation Commission to take the pending application for review as submitted, and to determine the same on the record as it stands, without further evidence or arguments."

Thereafter on December 11, 1928, the commission received an additional request for submission on review filed by claimant in which he requested the opportunity to present further testimony, and in which it is alleged that the finding of the commissioner is based on an examination of a Dr. Diveley who did not testify and there was no opportunity afforded for cross-examination. All parties in interest were notified that a hearing on review would be held February 5, 1929, at which time the commissioner who had previously received the evidence appeared and conducted a further hearing. Plaintiff introduced the testimony of five witnesses. At this last hearing it appears from the statements of the commissioner, the claimant, and his attorney that at the close of the evidence on previous hearing the commissioner had stated that there was a dispute among the doctors, and the commissioner suggested an examination and report by some disinterested doctor other than those who had been called by the claimant and by the other parties; that in pursuance to such suggestion the commissioner at the time telephoned to a doctor and arranged for him to examine claimant. Claimant appeared at the doctor's office and was examined. The commissioner proposed to claimant that he might use the testimony of the last doctor if he so desired before the award was written, but the attorney for claimant said no, to go ahead and write the award. At this last hearing held February 5th, the commissioner proposed to claimant or to his attorney: "If you want to bring Dr. Diveley over here, we will have him over here to testify and you can cross-examine him." The attorney replied: "I believe we would like to have him over here then." Following this the doctor in question was called and testified and the evidence was closed.

Thereafter under date of February 26, 1929, all members of the commission signed a final award in which it is recited:

"The above parties having submitted their disagreement or claim for compensation for the above accident to the undersigned members of the Missouri Workmen's Compensation Commission, and after hearing the parties at issue, their representatives, witnesses and evidence, the undersigned hereby find in favor of the above employer and insurer and against the above employee and award no compensation for the above accident.

"On review the findings, statement, rulings and award dated November 22, 1928, are affirmed by the full commission."

Thereafter on March 11, 1929, the commission received a further application for review from the claimant wherein it is stated:

"It is desired that the testimony of Dr. Frank R. Teachenor and Dr. F. M. McCallum be included in the transcript."

An attorney for claimant, by letter, also requested the commission to reopen the case in order to receive the testimony of the doctors named, which letter further stated:

"If it is inconsistent for you to give this additional testimony consideration, we respectfully call your attention to the notice of appeal to the circuit court of Jackson county, which was filed with you under date of March 9, 1929."

In reply to the application for further review and to reopen the case the commissioner wrote the attorney for claimant declining to take further testimony except by consent of all parties. No further hearing was held. A timely notice of appeal had been filed. The transcript and records were sent to the Jackson circuit court at Kansas City.

At the hearing in the circuit court the transcript of the proceedings before the commission was offered in evidence and claimant's attorney offered the testimony of Dr. McCallum in the form of a report by him to claimant. The report of the doctor is printed in the abstract and was offered over the objection of the attorney for defendants. No ruling of the court appears. At the close of the hearing in the circuit court defendants demurred. The court heard statements of counsel, took the case under advisement, for review of the transcript, and thereafter rendered its judgment wherein it was ordered and adjudged that the award by the commission be reversed and the case remanded. The judgment entry recites:

"And this court duly reviewed and considered all questions of law herein, said court doth find that said Missouri Workmen's Compensation Commission, in making said award, acted without and in excess of its powers in refusing to permit the introduction in evidence, or consider, the testimony of Dr. F. M. McCallum and Dr. Frank R. Teachenor, and doth further find that the facts found by the commission do not support the award, and there was not sufficient competent evidence in the record to warrant the making of the award."

From the foregoing judgment the employer and the insurer duly appealed and allege error therein for the reason that the findings and judgment are erroneous under the law and the evidence.

The record of the evidence is voluminous. We will state the substance of it with a view of ascertaining whether there was sufficient competent evidence to support the conclusion reached by the commission.

Claimant was employed as a solicitor and collector for the Metropolitan Life Insurance Company at Excelsior Springs and vicinity. It was the custom of the employer to hold weekly meetings of its agents on Saturday morning. The claimant and others were expected to attend. On March 5, 1927, while attempting to ascend a stairway leading to the district office of the employer to attend one of these meetings, claimant slipped and fell on the steps. Two companions were accompanying him. He was assisted up the stairs where his employer's assistant manager saw him and learned that he had received a fall. Claimant attended the scheduled meeting and went about his work in the usual way for about one week when he became partially paralyzed.

On the day of claimant's injury an assistant manager of his employer took him to a doctor for examination and he was examined on that day. The doctor testified that Waring gave a history of having had the "flu" in January; said he had been pretty sick for three or four days with high fever and headaches and so on; complained of not being able to sleep; that he had headaches at nighttime, weakness in the legs; numbness in the legs and arms. The doctor said there were lots of knots in his legs and he wasn't able to walk steady. The patient said nothing at all about an injury. He made a Wassermann test which was negative.

Plaintiff drove his own automobile from Kansas City to Liberty and continued about his usual duties, although he complained of pain and suffering on account of his fall. After he became disabled by paralysis he had many doctors. One of the first was a Dr. James, called by defendants, who testified that h...