Yancey v. Egyptian Tie & Timber Co.

• Decision Date: 07 July 1936
• Docket Number: No. 24127.,24127.
• Court: Missouri Court of Appeals
• Parties: YANCEY v. EGYPTIAN TIE & TIMBER CO.

95 S.W.2d 1230

YANCEY v. EGYPTIAN TIE & TIMBER CO.

No. 24127.

St. Louis Court of Appeals. Missouri.

July 7, 1936.

Rehearing Denied July 20, 1936.

Appeal from Circuit Court, St. Francois County; Taylor Smith, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Firman Yancey, claimant, opposed by the Egyptian Tie & Timber Company, employer. From a judgment of the circuit court reversing an award of the Workmen's Compensation Commission in favor of the employer, the employer appeals.

Affirmed and remanded.

A. H. Mansfield and Albert I. Graff, both of St. Louis, for appellant.

Robert W. Herr, of St. Louis, for respondent.

McCULLEN, Judge.

This is an appeal from a judgment of the circuit court of St. Francois county, Mo., reversing a final award of the Missouri Workmen's Compensation Commission in favor of the employer, appellant herein.

Firman Yancey, respondent herein, filed a claim for compensation within the time prescribed by law for injuries which he claimed were sustained by accident arising out of and in the course of his employment as an employee of appellant. The claim for compensation alleged that at the time of the accident "employee was standing on a railroad tie in bottom of box car and lifting another tie to adjoining stack when tie on which he was standing rolled over, causing him to twist and strain self in attempt to prevent second tie from falling and causing, as a result, immediate internal pain."

The appellant filed an answer to the claim for compensation wherein it denied that respondent sustained an accident arising out of and in the course of his employment, and further denied that the condition complained of by respondent was caused by the accident as alleged by respondent.

The final award on hearing made by the full commission affirming the award of the referee is as follows: "We find from the evidence that the condition complained of by the employee was not the result of an accident as alleged on June 26, 1934, therefore compensation must be denied."

Upon appeal to the circuit court of St. Francois county, that court entered a judgment reversing the award of the Workmen's Compensation Commission in favor of the employer and against employee and remanding the cause to the compensation commission for further proceedings.

Appellant contends that the circuit court erred in reversing the award of the Workmen's Compensation Commission because there was sufficient competent evidence in the record to sustain the award denying the respondent employee compensation, and because the facts found by the Workmen's Compensation Commission supported the award.

There can be no doubt that an employee seeking to recover compensation for injuries has the burden to establish that the condition complained of resulted from an accident arising out of and in the course of his employment, as contended for by appellant. Noto v. Hemp & Co. (Mo.App.) 83 S.W.(2d) 136; DeLille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W. (2d) 834.

It is also well-established law in this state, as appellant contends, that in a compensation case the weight and credibility of the testimony of witnesses are for the commission to determine. De Moss v. Evens & Howard Fire Brick Co. (Mo. App.) 57 S.W.(2d) 720; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.(2d) 601.

Furthermore, we agree with appellant's statement of the law to the effect that in testing the sufficiency of evidence to support the findings and award of the Workmen's Compensation Commission, the court will look only to the evidence most favorable to bear out the view of a case which the commission saw fit to take even though a finding by the commission to the contrary would also have been supported by the evidence. Gantz v. Brown Shoe Co. (Mo.App.) 90 S.W.(2d) 168; Shroyer v. Missouri Livestock Commission Co., 332 Mo. 1219, 61 S.W.(2d) 713.

However, the award of the compensation commission is not binding on the circuit court on appeal unless there be substantial competent evidence in the record to support such award. It is the duty of the circuit court to examine the record in a compensation case, and, even though there be some evidence which supports the award of the commission, if it be not legally sufficient or if it be of such a character as to be lacking in sufficient probative force to sustain the award of the commission, it is the duty of the court to reverse such award and remand the cause to the commission for further proceedings. Section 3342, R.S.Mo.1929 (Mo.St.Ann. § 3342, p. 8275); Kenser v. Ely & Walker Dry Goods Co., 226 Mo.App. 1016, 48 S.W.(2d) 167; Adams v. Lilbourn Grain Co., 226 Mo.App. 1030, 48 S.W.(2d) 147; Thurman v. Fleming-Young Coal Co. (Mo.App.) 49 S.W.(2d) 288.

With the foregoing rules in mind, we proceed to a consideration of the evidence shown in the record herein.

Respondent testified that on June 26, 1934, at about 1:30 or 2 o'clock in the afternoon, he was loading ties from the ground on to a railroad box car for appellant, and that in doing so he stepped up on a little stack of ties about 18 inches high and was holding a tie over his head when a tie turned under his feet and threw him; that he held the tie in his hands over his head to keep it from falling on him and when he could get to where he could lay it down, he did so and felt a pain in his rectum; that the ties weighed 70 to 100 pounds each; that no one was in the box car with him at the time; that after he laid the tie down, he took one more tie off the man's shoulder at the door and told him to wait a while; that he was sick, and after resting about 30 or 40 minutes, he had a severe headache and tried to buy some aspirin, but failing in that, he traded jobs with one of the men on the ground and helped finish the car; that he finished out the day but did not work the next day; that he went to Dr. Watkins on June 28, 1934; that he has not worked since the accident; that he thought he had piles and that he had continual pain in the rectal region; that he was operated on by Dr. Watkins on July 18th following the accident, and still sees the doctor twice a week; that he has not been able to work since the operation and has pain in the rectal region; that he told Dr. Watkins on June 28th about having the tie and falling with it; that he had never had piles or constipation or trouble with his rectum prior to the accident. Respondent testified on cross-examination that after he came out of the hospital on July 24th, he had a conversation with Mr. Vincent, the foreman, and that he told him in that conversation that he thought he had piles, but that when he went to the doctor the doctor had found that he had a tear in the rectum; that he told Vincent he had fallen down there that day and was not able to do anything since. When asked on cross-examination why he thought he was unable to work at the time of the trial respondent answered that his rectum bothered him and gave him pain. In that connection respondent testified:

"Q. When you were putting these — rather, when this accident you describe happened, you fell to your knees on the low tie? A. Yes, sir.

"Q. And this thing was still above you? A. Yes, sir.

"Q. Holding it up? A. Yes, sir.

"Q. How much did that weigh? A. Between 70 and 100 pounds.

"Q. Did you get any pain or straining or pull in your back? A. Yes, sir.

"Q. Is that when you felt the pain? A. Yes, sir. * * *

"Q. Do you — you say you told one of the men following this fall that you were sick? What man was that? A. I said that in front of all three of them.

"Q. That you were sick? A. I told them I was sick and my rectum hurt.

"Q. You didn't say anything about the fall? A. No, but they told me it was stomach worms."

Annabelle Murphy, superintendent of the Bonne Terre Hospital, referring to the original hospital record of respondent, testified that respondent was admitted to the hospital on July 17th and discharged July 23, 1934; that the diagnosis was fissure in the anus.

Dr. George Watkins, a witness for respondent, testified that he is a graduate of Washington University; that he resides in Farmington, Mo., and has been practicing his profession as a physician and surgeon in that city since his graduation in 1912; that he examined respondent on June 28th or 29th, at which time respondent was complaining of severe pain and burning in the rectum; that the examination disclosed a fissure or break in the continuity in the tissue in the rectum; that the fissure was in the internal sphincter and extended upward possibly an inch or an inch and a quarter; that he cauterized it, but as that did not relieve the condition, he advised an operation, which was performed by him on respondent on July 18th; that he had to give respondent narcotics prior to the operation because respondent was in pain; that the operation consisted of removing the edges of the ulcer and drawing it together with sutures; that respondent was discharged from the hospital after six and one-half days, but the doctor still continued to treat him because the lower end of the wound was not healed; that from the time he first saw respondent to the time of the trial, in the doctor's opinion respondent was unable to work; that after the operation respondent had to be kept quiet because a straining might cause the whole thing to come open; that when he first saw respondent he gave a history of lifting and that he slipped when he was lifting and thought he had hemorrhoids that gave him pain. The doctor stated that he did not see any hemorrhoids, piles, or fistula, nor was the condition in any way related to hemorrhoids, piles, or fistula. The doctor further testified that considering the history respondent gave him of an accident, and further the history of no previous trouble in that region, and also considering the condition which he found on examination on June 28th, coupled with the complaint of pain immediately following the lifting, in his...