Opinion
January 5, 1937.
1. WORKMEN'S COMPENSATION COMMISSION: Review: Motion for a New Trial. A proceeding in the circuit court to review the record and proceeding before the Public Service Commission is not a trial and where that court reversed an award of the commission, a motion for a new trial was not necessary in order that the Supreme Court on appeal might review the judgment of the circuit court.
Although the claimant on review of the award of the commission, allowing no compensation for a death, filed an affidavit purporting to present an issue of fraud within the meaning of the Compensation Act and when the court sustained a motion to strike it out, claimant made an offer of proof, objection to which was sustained, the claimant was not required to file a motion for a new trial on that ruling.
2. WORKMEN'S COMPENSATION COMMISSION: Award: Substantial Evidence. Where on a death claim the evidence showed that deceased suffered hernia while in the course of his employment and physicians differed as to whether subsequent complications and a softening of the brain which caused the death was the result of the hernia, the ruling of the Compensation Commission that the death was not due to an accident arising out of and in the course of his employment was supported by substantial evidence.
The courts are without authority to disturb an award supported by substantial evidence.
Appeal from Circuit Court of City of St. Louis. — Hon. John W. Joynt, Judge.
REVERSED AND REMANDED ( with directions).
Fordyce, White, Mayne Williams and G. Carroll Stribling for appellants.
(1) The commission's finding that the death of the employee, Sylvester P. Jennemann, was not caused by the accident on May 1, 1930, or by the subsequent operation, was a finding of fact. Doughton v. Marland Refining Co., 53 S.W.2d 236, 331 Mo. 280; Decker v. Raymond Concrete Pile Co., 82 S.W.2d 267, 336 Mo. 1116; Bolin v. Swift Co., 73 S.W.2d 774, 335 Mo. 732. (2) In reviewing the commission's finding that the death was not caused by the accident or the operation, this court, as in reviewing any other finding of fact by the commission will draw every reasonable and legitimate inference from such evidence in support of the award, and will look only to the evidence most favorable to support the award. Phillips v. Air Reduction Sales Co., 85 S.W.2d 551; Decker v. Raymond Concrete Pile Co., supra; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 52 S.W.2d 1019, 331 Mo. 169; Shroyer v. Mo. Liverstock Comm. Co., 61 S.W.2d 713, 332 Mo. 1219. (3) The findings of fact and award of the commission to the effect that the employee's death was not caused by the accident or the later operation have the force and effect of a special verdict by a jury, and since they were supported by substantial and competent evidence in the record are binding on appeal. Decker v. Raymond Concrete Pile Co., supra; Doughton v. Marland Refining Co., supra; Leilich v. Chevrolet Motors Co., 40 S.W.2d 601. (a) The testimony of medical experts to the effect that the employee's death did not result from the accident or the operation amounted to substantial and competent evidence. Doughton v. Marland Refining Co., supra; Decker v. Raymond Concrete Pile Co., supra. (4) The circuit court properly struck the affidavit claiming fraud from the files, because the facts set forth in the affidavit, even if taken to be true, were not sufficient to show fraud within the meaning of Revised Statutes 1929. Phillips v. Air Reduction Sales Co., supra; Schmelzle v. Ste. Genevieve Lime Quarry Co., 37 S.W.2d 482.
R.J. Schroeder for respondents.
(1) While the court made a general and not a specific finding in favor of the respondent, it doubtless took into consideration the question of fraud, together with the finding made by the Workmen's Compensation Commission in favor of appellant. Phillips v. Air Reduction Sales Co., 85 S.W.2d 551. (2) The appellants' abstract of the record cannot be considered by this court, for they (appellants) failed to file a timely motion for new trial and bill of exceptions to adverse verdict to appellants. Phillips v. Air Reduction Sales Co., 85 S.W.2d 551. (3) The proceedings in the circuit court are in the nature of an equitable proceeding to set aside a judgment and there is no reason why the usual rulings as to bills of exceptions and motions for a new trial should not apply to them. Phillips v. Air Reduction Sales Co., 85 S.W.2d 551. (4) The law does not impose upon a successful litigant the burden of preparing and filing a bill of exceptions in order to preserve his rights on his adversary's appeal. Klene v. Ry. Co., 9 S.W.2d 950. (5) Appellate court has the right to reverse, if it finds commission's findings are incomprehensible. Adams v. Lilbourn Grain Co., 48 S.W.2d 147.
Respondents (dependents) filed a claim with the Workmen's Compensation Commission to recover for the death of Sylvester Jenneman. The commission made an award denying compensation on the theory that his death was not the result of an accident arising out of and in the course of his employment. On the circuit court reversing the award and remanding the claim, defendants (employer and insurer) appealed. Under the Compensation Act the amount in dispute is in excess of $7500.
I. Respondents contend that the record presents nothing for review for the reason appellants did not file a motion for a new trial in the circuit court. The circuit court only reviewed the record of the proceedings before the commission. Absent a trial in said court, a motion for a new trial was unnecessary. [State ex rel. Department Stores v. Haid, 327 Mo. 567, l.c. 581, 38 S.W.2d 44; Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551, 556, 558.] It should be stated that respondents filed an affidavit in the circuit court purporting to present an issue of fraud within the meaning of the Compensation Act. On the court sustaining appellant's motion to strike same from the files, respondents made an offer of proof with reference to the matter. Appellants' objection to the offer was sustained and respondents excepted. Of course, appellants were not required to file a motion for a new trial on the ruling on the affidavit. The ruling was in their favor. The contention is overruled. (Cases cited, supra.)
II. Appellants contend that the award of the commission denying compensation was supported by substantial evidence and should not have been disturbed. The facts follow:
In February, 1929, deceased received a hernia while in the service of the Scullin Steel Company. After a successful operation he returned to work wearing a truss, which he soon discarded. On May 6, 1930, while in the course of his employment, there was a recurrence of the hernia. He continued to work until December 1, 1930, when he was again operated on by Dr. Will, the company's physician. In the hospital he contracted a cold, pleurisy in the right side, phlebitis in the left leg, headaches and a temperature. On two occasions as he walked about the room in the hospital his right side became numb, right leg weakened, and he fell. On these occasions he continued in a weakened condition for forty-five minutes. On January 24, 1931, he returned home, reported to Dr. Will, and, on the doctor's suggestion, went through the Barnes Hospital Clinic. On April 15, 1931, he returned to work and continued in the service for fifteen days. In the meantime he lost interest in his personal appearance and family, constantly suffered pain on the left side of his head, could not use his right hand, and in walking dragged his right foot. On May 15, 1931, he entered the Veterans Hospital in St. Louis. At this time he spoke with difficulty, could not write and continued to suffer pain in his head. Finally he was removed to the Veterans Hospital in Chicago. He grew worse and died in said hospital May 14, 1932. On May 19, 1932, an autopsy was performed by Dr. D.L. Harris in the presence of Dr. Francis M. Barnes, Jr., who attended at the request of the attorney for respondents.
The question presented to the commission was purely medical. It is unnecessary to set forth the testimony of the physicians. All agreed that the cause of death was softening of the brain, which condition existed for two weeks before death; that it was caused by a thrombosis in the branch of the middle cerebral artery; that the thrombosis was caused by arteriosclerosis, and the hernia did not directly cause death. The physicians called by respondents testified that the last operation for hernia caused the cold, pleurisy and phlebitis; that the pleurisy or phlebitis, or both, either caused or aggravated the condition of arteriosclerosis, which in turn caused the thrombosis. On the contrary the physicians called by appellants testified that neither the hernia, cold, pleurisy nor phlebitis in any manner caused or aggravated said condition. They also testified that the pain, dizziness and suffering experienced by deceased after the last operation were due to cerebral angiospasms.
Respondents challenge the testimony of Dr. Harris for the reason that he submitted two reports of the autopsy. The first report disclosed no arteriosclerosis in the region of the cerebral artery. In explanation, he testified that after submitting the first report he continued the examination with the aid of a microscope, which disclosed arteriosclerosis. He submitted specimens to other physicians, who made microscopic examinations, and all agreed that the microscope disclosed arteriosclerosis in said region. Furthermore, his submission of two reports on the autopsy was for the consideration of the commission in weighing his testimony. In this connection it may be stated that the autopsy showed a cancerous colon and a diseased kidney.
Thus it appears that the ruling of the commission was supported by substantial evidence. [Decker v. Raymond Concrete Pile Co., 336 Mo. 1116, 82 S.W.2d 267.] It follows that the courts are without authority to disturb the award. The judgment of the circuit court is reversed and the cause remanded with directions to affirm the award of the commission.
All concur.