Zickefoose v. Walker and Williams et al.

• Decision Date: 04 March 1935
• Docket Number: No. 5539.,5539.
• Court: Missouri Court of Appeals
• Parties: R.W. ZICKEFOOSE, APPELLANT, v. WALKER AND WILLIAMS AND HARTFORD ACCIDENT & INDEMNITY CO., APPELLANTS.

79 S.W.2d 511

R.W. ZICKEFOOSE, APPELLANT, v. WALKER AND WILLIAMS AND HARTFORD ACCIDENT & INDEMNITY CO., APPELLANTS.

No. 5539.

Springfield Court of Appeals. Missouri.

March 4, 1935.

Appeal from the Circuit Court of Butler County. — Hon. Robert I. Cope, Judge.

REVERSED AND REMANDED (with directions).

Phillips & Phillips and David W. Hill for appellant, employee.

The circuit court should have modified the award by increasing the same, according to the uncontradicted evidence of the employees permanent total disability, and should have rendered final judgment then and there. Kristanik v. Chevrolet Motor Co., 70 S.W. (2d) 890. When the uncontradicted substantial competent evidence shows that the award of the Commission is too low, it is the duty of the court to "modify" the award by increasing it to the proper amount under the law. Johnson v. Reed, 224 Mo. App. 1120, 30 S.W. (2d) 107. Any doubts about the employee's rights should be resolved in his favor. Kinyon v. Kinyon, 71 S.W. (2d) 78.

Henson & Woody for appellant, employer and insurer.

Proceedings under the Workmen's Compensation Law are purely statutory. The act is special and entirely out of the course of the common law, and the code of civil procedure is not applicable thereto. It is a code unto itself. The rights and remedies of the parties and the manner of invoking and procuring them must be determined by the provisions of the act alone. Kristanik v. Chevrolet Motor Co., 40 S.W. (2d) 911; Kemper v. Gluck, 21 S.W. (2d) 922, affirmed, 327 Mo. 733, 39 S.W. (2d) 330, certiorari denied, 284 U.S. 649, 76 L. Ed. 551. Under the Workmen's Compensation Act, on appeal, no additional evidence as to the physical condition or the extent of claimant's disability can be offered by either party. Sec. 3342, R.S. 1929; Ritchie v. Rayville Coal Co., 224 Mo. App. 1128, 33 S.W. (2d) 154. In determining whether the commission's finding and award is justified by the evidence, on appeal the court considers only evidence in support of such finding and award, together with all reasonable inferences which may be drawn therefrom to support the conclusions of the commission, and disregards any unfavorable testimony where it is contradicted by evidence supporting such conclusions. State ex rel. v. Haid, 62 S.W. (2d) l.c. 871; King v. Mark Twain Hotel, 60 S.W. (2d) 675; Seebers v. O'Dell, 60 S.W. (2d) 678; Glenn v. Joseph Kesl & Sons, 74 S.W. (2d) 253. On appeal the court cannot pass upon the credibility of the evidence, nor upon the weight thereof. Weiler v. Peerless White Lime Co., 64 S.W. (2d) 125; Seepers v. O'Dell, supra; Ritchie v. Rayville Coal Co., 33 S.W. (2d) 154; Beecham v. Greelease, 225 Mo. App. 619, 38 S.W. (2d) l.c. 537; Shumate v. American Asphalt Roofing Corp., 66 S.W. (2d) 949.

BAILEY, J.

This is an appeal by all parties concerned from a judgment of the circuit court reversing an award made by the Workmen's Compensation Commission and in remanding the cause to the said commission for a rehearing. The claimant, R.W. Zickefoose, was, on August 5, 1929, in the employ of Walker and Williams and at that time engaged in roofing a building in Poplar Bluff, Missouri; both claimant and employer were carrying on said work under the provisions of the Workmen's Compensation Act. The Hartford Accident & Indemnity Company was the insurer of said employer. Claimant suffered an injury from an accident arising out of and in the course of his said employment on the date above mentioned. He was paid compensation at the rate of $20 per week from the date of his injury until October 2, 1933, or a total sum of $4340. It was agreed that the claimant's weekly wage was $35. It further appears that after due notice to all parties concerned, a hearing was had before referee Spencer H. Givens, on October 11, 1933, upon the sole question of the nature and extent of employee's disability. On the 17th of October, 1933, Referee Givens made his finding and award to the effect that said employee was permanently disabled to the extent of sixty-five per cent loss of the use of his back; that he was entitled to compensation for 260 weeks at the rate of $20 per week or a total of $5200; that the amount of said compensation paid to that date by the employer or insurer was $4340, leaving a balance due the employee in the sum of $860. Thereafter, both the employee and the employer filed an application for review by the whole commission and on October 28th, after due hearing, the award of the referee was affirmed. The employee, referred to herein as claimant, thereafter appealed to the circuit court from said final award. A complete transcript of all the record and evidence taken before the commission was filed with the circuit court, and a hearing of said appeal was had on April 27, 1934, resulting, as heretofore stated, in an order reversing the commission and remanding the cause, which order was based upon certain grounds stated therein, as follows:

"1. Because there is no substantial evidence to sustain the finding of said commission that plaintiff was only partially disabled from returning to any employment on account of his physical injuries.

"2. Because all the competent evidence in the case shows that plaintiff was and is permanently and totally disabled from returning to any employment on account of his physical injuries.

"3. Because the testimony of all the physicians is so indefinite as to be valueless, on the question of disability.

"4. Because the final award was the result of fraud shown by the evidence; the plaintiff was told by the commissioner who took the testimony that the plaintiff did not need an attorney to represent him in this case; that plaintiff relied upon the advice of the commissioner, and the result was that incompetent testimony was permitted to be given in the case against plaintiff."

The appeals of all parties are now lodged in this court.

We shall first consider the appeal of claimant. It is urged that the trial court erred in remanding the cause to the commission for rehearing when, it is said, all the evidence, which is uncontradicted, authorized the court, not only to set aside the award of the commission, but to modify the award, and grant to claimant compensation based upon permanent total disability. It is further urged that the award made was procured by fraud for the reason that the referee informed claimant, before the first hearing, that he did not require the services of a lawyer and for that reason, claimant, having relied upon that statement, was not represented at the hearing by attorney and as a result incompetent evidence was introduced.

At the trial in the circuit court claimant was permitted to introduce evidence for the purpose of attempting to prove that the award of the commission was procured by fraud. This evidence was to the effect that the commissioner or referee before whom claimant's case was first heard, informed him that he, "wouldn't need any lawyer;" that he took his word for it and did not get a lawyer until two days before his time ran out for appeal, when he consulted the lawyers who now represent him; that claimant was not a lawyer and was not qualified to know about, "questions that were asked the doctors as to whether or not you could do light work."

The charge of fraud is, we think without reasonable foundation. The statement attributed to one of the commissioners that claimant would not need a lawyer is in point of fact not a mis-statement. Under the law proceedings before the commission are required to be, "simple, informal and summary, and without regard to the technical rules of evidence, etc." [Sec. 3349, R.S. Mo. 1929.] This of course does not mean that the award of the commission may be based upon incompetent evidence. [Woods v. American Coal & Ice Co., 25 S.W. (2d) 144.]

It does mean however, that such hearings are not to be tried as ordinary suits in circuit court and the provision was no doubt made looking forward to the probability that neither members of the commission making the awards nor the parties to the proceedings would necessarily be lawyers. It might as well be said that if in a suit before a justice of the peace, or the probate court or county court, a litigant were advised by the judge that he would not need a lawyer, such advice would render the proceedings fraudulent no matter what the motive for such advice might have been. We have no means of knowledge as to what the motive of the commissioner making the statement, plaintiff says he made, may have been in this case. We can conceive of no other motive in making such a remark to a claimant than to save him the expense of hiring a lawyer. Moreover, the record does not show whether or not the statement was made in reply to a question or as unsolicited advice. If the latter we say it might be considered unfair if not unethical. Outside of his own testimony the evidence consisted almost entirely of medical testimony. We are unable to find in that testimony any evidence of fraud, although some of the evidence is said to be incompetent. Granting for the sake of argument that it was, it is not an unusual circumstance even in trials where clients are represented by counsel. To our minds the charge of fraud is untenable.

Claimant, through able counsel who now represents him, takes the further position, however, that under the evidence before the commission the circuit court should have declared as a matter of law that claimant was permanently and totally disabled, entitling him to all the benefits accruing under the provisions of Section 3316, Revised Statutes of Missouri, 1929. It thus appears that although claimant seems to claim that undue advantage was taken of him as to his legal right to be represented before the commission by attorneys, yet he further claims that the evidence actually taken entitled him as a matter of law to the full and complete relief, in fact the maximum relief, afforded by the Workmen's Compensation Law. It is rather an...