Wood v. Wagner Elec. Corp.

Decision Date11 November 1946
Docket Number39927
Citation197 S.W.2d 647,355 Mo. 670
PartiesW. D. Wood v. Wagner Electric Corporation et al., Appellants
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis; Hon. Francis E Williams, Judge.

Affirmed and remanded.

Albert I. Graff and Malcolm I. Frank for appellants.

(1) Whether or not a refusal to submit to a hernia operation is unreasonable, is a question of fact to be determined by the Workmen's Compensation Commission, and when so determined it has the effect of the verdict of a jury and is binding upon an appellate court where supported by competent evidence. Ritchie v. Rayville Coal Co., 224 Mo.App 1128, 33 S.W.2d 154; Cuchi v. Geo. C. Prendergast & Sons, 72 S.W.2d 136; Payne v. Sullivan County, 225 Mo.App. 126, 36 S.W.2d 127; Perry v. Kreis, 49 S.W.2d 220; Strong v. Sonken-Galamba Iron & Metal Co., 109 Kan. 117, 198 P. 182; Whittika v Industrial Comm., 322 Ill. 368, 153 N.E. 708; Pipkin v. Continental Steel Corp., 105 Ind.App. 669, 16 N.E.2d 984; Gentry v. Williams Bros., 134 Kan. 408, 10 P.2d 856; Schiller v. B. & O. Ry. Co., 137 Md. 235, 112 A. 272; Yukanovitch v. Mass. Employees Ins. Assn., 2 Mass. Workmen's Comp. Cases 787; O'Brien v. Albert A. Albrecht Co., 206 Mich. 101, 172 N.W. 601; Pritchard v. Ford Motor Co., 276 Mich. 246, 267 N.W. 622; Palloni v. Brooklyn Manhattan Transit Corp., 215 A.D. 634, 214 N.Y.S. 240; Sun Coal Co. v. Wilson, 147 Tenn. 118, 245 S.W. 547; Danziger v. Industrial Acc. Comm., 109 Cal.App. 71, 292 P. 525; O. W. Rosenthal & Co. v. Industrial Comm., 295 Ill. 182, 129 N.E. 176; Zikking v. Thos. Swift & Co. (1933), W.C. & Ins. Rep. (Eng.) 73, 26 B.W.C.C. 53; Tutton v. S.S. Majestic, 2 K.B. 54, 78 L.J.K.B. 530; 100 L.T. 644; 25 T.L.R. 482; 53 Sol. J. 447, 2 B.W.C.C. 346; Donnelly v. Wm. Baird & Co., 45 Scotch Rep. 394, 1 B.W.C.C. 95. (2) Appellate courts should not weigh the evidence. Ullman v. Chevrolet St. Louis Div. General Motors, 349 Mo. 906, 163 S.W.2d 778; Jackson v. Curtiss Wright Co., 334 Mo. 805, 68 S.W.2d 715; Kane v. St. Louis Refrigerator Transit Co., 83 S.W.2d 593. (3) The Workmen's Compensation Commission was not acting in excess of its powers, but acted in accordance with Sec. 3701 (d), R.S. 1939, in denying all compensation for unreasonable refusal to submit to a hernia operation. Ritchie v. Rayville Coal Co., supra; Von Cloedt v. Yellow Taxicab Co., 223 Mo.App. 376, 18 S.W.2d 84; Guillod v. Kansas City P. & L. Co., 224 Mo.App. 382, 18 S.W.2d 97; State ex rel. v. Becker, 289 Mo. 660, 233 S.W. 641; State ex rel. v. State Board of Health, 334 Mo. 220, 65 S.W.2d 943; Haynes v. Unemployment Compensation Comm., 183 S.W.2d 77; Danziger v. Industrial Accident Comm., supra; O. W. Rosenthal & Co. v. Industrial Comm., supra; Joliet Motor Co. v. Industrial Board, 280 Ill. 148, 117 N.E. 423; Pipkin v. Continental Steel Corp., supra; Gentry v. Williams Bros., supra; O'Brien v. Albrecht Co., supra.

J. Harry Pohlman and William Kohn for respondent.

(1) The Commission found that claimant sustained an accident arising out of and in the course of his employment, resulting in injury. In forfeiting all compensation for the injury, the Commission acted in excess of its powers, since Sec. 3701 (d), R.S. 1939, authorized forfeiture of compensation only for disability "caused, continued or aggravated" by an unreasonable refusal to submit to a surgical operation. The forfeiture was not only of the latter, but of all compensation, including compensation for the injury itself, for which, under the Commission's finding of fact, claimant was entitled to recover by reason of the Missouri rule allowing recovery for the injury alone, without disability to work, or loss of earning power. Secs. 3701 (d), 3705, R.S. 1939; Betz v. Columbia Tel. Co., 224 Mo.App. 1004, 24 S.W.2d 224; Sleets v. St. L. Material & Sup. Co., 39 S.W.2d 821; Graf v. Natl. Steel Products Co., 38 S.W.2d 518; Lynch v. Gleaner, etc., Corp., 17 S.W.2d 554, 233 Mo.App. 196; Von Cloedt v. Taxicab Co., 223 Mo.App. 376, 18 S.W.2d 84; Lawrence v. Stark Bros., 18 S.W.2d 89. (2) Although the Commission found as a fact that claimant "sustained an accident arising out of and in the course of his employment," causing him to suffer a left inguinal hernia, it failed to award him compensation for the physical impairment, authorized by Sec. 3705. Therefore, the facts found by the Commission do not support the award. See cases cited under Point (1). (3) A statute providing for forfeiture must be strictly construed, and applied only in cases free from doubt, and when invoked, the burden of proof is on the employer and insurer to show facts leaving no alternative but to declare the forfeiture. Cuchi v. Geo. C. Prendergast & Sons, 72 S.W.2d 136. (4) The evidence shows that a risk of life is involved. Even though this might not be considerable, in view of the fact that claimant can get relief through the wearing of a truss, the refusal to submit to an operation was not unreasonable. McNally v. Hudson M.R. Co., 95 A. 122; Western Ind. Co. v. Millam, 230 S.W. 827; Utah Copper Co. v. Ind. Comm., 255 P. 397; Marshall v. Ransione Concrete Co., 165 P. 846; Bruce v. Taylor, etc., 158 N.W. 153; Gen. Accident, etc., v. Ind. Acc. Co., 246 P. 570; Zant v. U.S.F. & G. Co., 148 S.E. 764; Amer. Mut., etc., v. Braden, 149 S.E. 98; Haakes v. Richard Coles & Sons, 3 B.W.C.C. 163, 6 Neg. & Comp. Cases A. 678; Grant v. State Ind. Acc. Commission, 201 P. 438; Hendley v. Okla., etc., Ry. Co., 197 P. 488; Martin v. Wyatt Lumber Co., 4 La. App. 157; Wood v. People's etc., 173 So. 466; See also Schneider on Workmen's Compensation, sec. 496, p. 165, note 19. Since adoption of the new Constitution (effective March 30, 1945), the rule contended for by appellants under their point II is no longer in effect. In reviewing the findings of the Commission this court has the power to determine for itself, like it does in equity cases or as it must now do under the new Constitution in non-jury cases, "whether the same are supported by competent and substantial evidence upon the whole record." The rule being procedural, the power thus vested by the new Constitution operates prospectively as well as retrospectively and is effective in cases pending at the time of its adoption. State ex rel. v. Bland, 189 S.W.2d 542; New Missouri Constitution, Art. V. Sec. 22.

OPINION

Hyde, J.

This is a Workmen's Compensation case. The Commission found that claimant sustained an accident arising out of and in the course of his employment causing a left inguinal hernia, and made a temporary or partial award requiring the employer to furnish surgical treatment to cure this injury. Claimant refused the operation tendered; and the Commission then made a final award finding his refusal unreasonable and denying all compensation. Claimant appealed to the circuit court which reversed the award and defendants appealed from this judgment of reversal.

Defendants' appeal went to the St. Louis Court of Appeals which affirmed the judgment of the circuit court and ordered the cause remanded to the Commission. [Wood v. Wagner Electric Corporation, 192 S.W.2d 579.] Reference is made to that opinion for a full statement of the facts. Upon defendants' application, under Section 10, Article V, 1945 Constitution, we ordered the cause transferred here.

The circuit court reversed this award (denying any compensation) on the grounds that the Commission acted in excess of its powers; that the facts found by the Commission do not support the award; and that there was not sufficient competent evidence in the record to warrant the making of the award. The question is raised as to the scope of review under Section 22, Article V. 1945 Constitution. We cannot agree with the conclusion of the court of appeals that "Section 3732 has not been affected by the new Constitution." (This and all other references are to R.S. 1939 and Mo. Stat. Ann.) It is true that it had not been affected on the date of the court of appeals opinion because of the provision of Section 2 of the Schedule that "all laws inconsistent with this Constitution, unless sooner repealed or amended to conform to this Constitution, shall remain in full force and effect until July 1, 1946." However, as of July 1, 1946, there has been written into Section 3732, in lieu of the narrow review ground No. 4 "that there was not sufficient competent evidence in the record to warrant the making of the award," the broader ground that the award (and any finding supporting it) was not "supported by competent and substantial evidence upon the whole record." This is true because the Constitution makes this broader review the minimum standard which may be established for review in any case decided on a hearing before an administrative officer or body. This is the same review provision as that now stated in our new Administrative Review Act, S.C.S.S.B. 196, Mo. Stat. Ann. 1140.110(f), also effective July 1, 1946. (See also the new Federal "Administrative Procedure Act." Public Law No. 404, 79th Congress, known as the McCarran-Sumners Act; U.S.C.A. Title 5, Chapter 19, Section 1009(e).)

The provision in Section 22 that administrative decisions "shall be subject to direct review by the courts as provided by law" refers to the method of review to be provided (certiorari, appeal, etc.) and not to the scope of the review "in cases in which a hearing is required by law." For the latter, this stated minimum standard ("supported by competent and substantial evidence upon the whole record") is mandatory and requires no legislation to put it into effect. This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its...

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