Opinion
No. 27673.
January 17, 1950. Rehearing Denied February 17, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, WILLIAM H. KILLOREN, J.
G. W. Marsalek, St. Louis, Moser, Marsalek, Carpenter, Cleary Carter, St. Louis, for appellants.
Lawrence J. McKim, St. Louis, Champ C. Stonebraker, St. Louis, Orville Richardson, St. Louis, for respondent.
The appeal is from a judgment of the circuit court affirming an order of the Workmen's Compensation Division of the Industrial Commission of Missouri awarding compensation and medical aid to claimant in the sum of $2,369.60. The order of the commission was a reversal of an award in favor of the employer and insurer, which had been made by the referee.
The claim stated that the accident happened while claimant was operating a clicking machine, and when setting the machine, the spring broke, and released the machine, jerking her left arm. The answer denied that the employee suffered any accident or injury arising out of or in the course of her employment; denied that any accident occurred in the manner stated in the claim or in any manner whatsoever, and alleged that any disability suffered by employee is not connected in any way with her employment by this employer.
Claimant was operating a clicker or cutting machine. This is a complicated machine designed to cut various shapes of leather used in the manufacture of shoes. Before describing how claimant was injured we should describe at least in a general manner the operation of a clicker machine.
It consists of a large C-frame, attached to which and on the hollow side of the C there is a table with a wooden surface. The leather to be cut is placed on the table, and a die placed on the leather, which is shaped to cut the piece desired. The cutting is done by means of a large hammer which is immediately over the table, and which may be swung by the operator to the right or left so that it is directly over the die. The operator then pulls a trigger which causes the hammer to descend with sufficient force upon the die to cut the leather. The hammer is caused to descend by power from a large flywheel driven by an electric motor. This flywheel is in a vertical position and revolves about 250 revolutions a minute. There is a horizontal shaft which connects with the flywheel by means of a clutch, and when connected this horizontal shaft revolves with the same speed as the flywheel. At the opposite end of the horizontal shaft from the flywheel there is a connection with a vertical shaft which is caused to move up and down. It is to this vertical shaft that the hammer is attached. When the operator has the hammer adjusted over the die, a trigger is pulled which causes the clutch in the horizontal shaft to connect it with the revolving flywheel, and the revolution of the horizontal shaft is transmitted to the vertical shaft to which the hammer is attached so that the hammer descends with sufficient force to cut the leather. There are two springs which are used with the clutch and by the use of these springs a pull of the trigger causes the hammer to descend one time only and then to be raised and stand idle until the trigger is again pulled. If anything "jammed" the clutch it might put the machine into continuous operation, that is, keep right on running, and the hammer going up and down.
The distance of the hammer above the die is adjusted by means of a wheel at the top of the vertical shaft. There is no power connection which will cause this wheel to rotate independently of the action of the operator in manually turning it; however, the vertical shaft to which this wheel is attached does move up and down when the horizontal shaft is engaged with the flywheel.
Claimant testified that she was forty-five years old and had been operating clicker machines since she was sixteen; that the adjustment wheel had to be turned to the left to raise it and to the right to lower it; on the occasion in question, wishing to lower the hammer, she used her left hand, "because I am so short I could not reach it otherwise, and would have to stretch up so, and had my right hand on the block;" that this was a very old machine; that the adjustment wheel was stiffer, tighter and harder to operate than others; on some occasions she could not adjust it and called on a man at another machine to adjust it for her; on this occasion she reached up with her left hand to lower the hammer and pulled on the wheel; she said, "it was hard, in other words the machine worked stiff and that is when I pulled several times real hard and all at once it seems like — well, I don't know — like a thousand needles stuck in my arm and it jerked me"; she said it seemed like the wheel gave a jerk and jerked her over sideways; when asked again if the wheel had jerked she said: "I would say it did. It happened so quick and hurt so bad I would not be positive, but I know something happened to it;" she said, "It just jerked like, I guess you would call it. More of a jerk than anything else, I guess, and I know I was off balance." She was asked the question, "Is there any better way you can explain how that wheel moved, than what you have done?" Her answer was, "Well, I don't know just how to explain it. That is my trouble. The way it was when I pulled that as I said it jerked so bad — I don't know what caused it to jerk but it was just like a thousand and one needles ripped that arm out of the socket; that is just how it felt. But I do know it never did that way before regardless of what those old or new machines were made of." She said that Mr. Hartman came to her and she told him what happened and he said for her to sit down and she sat there for the rest of the day. A few days later she returned and worked a day and a half but was in so much pain and misery she had to quit. She had good use of her arm and never had any difficulty with her arm before. She said that while she was sitting there the foreman, Mr. Nestor, came in and asked her what was wrong and she told him; he gave a little grin and told her to be careful. She said, "They told me to take the back machine and use that because there was something wrong with my machine." She further said there was a small spring on the floor that belonged to her machine, and Mr. Hartman showed where it belonged; that she is not a machinist and could not say whether that had anything to do with it.
Charles Hartman, another employee, described his duties as instructor and leather expert. He was within six or eight feet of claimant, when he heard her outcry, and then he looked in her direction and she had her hand up to the adjustment wheel and was just lowering it when she let out the yell, and she said she had hurt her arm or shoulder. He said that this machine may automatically start operating with the operator either at or away from it. That is caused by the little spring enclosed inside the dog that fits into the pulley. He did not remember that the spring regulating the clutch on this machine was broken at that time. That a defect in the clutch can cause the hammer to "repeat"; there is also a set screw that sometimes loosens up and sometimes causes it to "repeat".
Bernard Nestor and Janet Koeneker, testifying for the appellants, said that they had never known the machine to "repeat" by itself. Another witness, Mrs. Vera Harris, had seen this occur and then been remedied by tightening the brake bands. The machine may keep repeating or just "click" a few times depending upon how loose the bands are.
Dr. Erwin Crecelius first saw claimant early in November, 1946, and has treated her since. Both he and Dr. Oscar P. Hampton, who examined claimant and testified as a witness for the employer and insurer, found that claimant had a tearing of the musculotendinous cuff of her left shoulder. Dr. Crecelius said the condition was due to trauma, and he estimated claimant's disability to the left shoulder and arm at seventy per cent to seventy five per cent. Dr. Hampton said trauma could bring about the condition, and he estimated her disability to be two-thirds to three-fourths. Dr. Crecelius said her injury was permanent. Dr. Hampton said that without a surgical operation the condition was permanent and that he could not say she would get a cure from an operation.
The finding of fact of the commission was that while the employee was operating a machine and while setting the machine the spring broke and released the machine, jerking the employee's arm, and caused sixty per cent permanent partial disability of the left minor arm at the shoulder.
It is appellants' contention that claimant's testimony that the machine "jerked" her arm is contrary to physical facts and should be disregarded and in support thereof cites the following authorities: Carner v. St. Louis-San Francisco Ry. Co., 338 Mo. 257, 89 S.W.2d 947, 950; Roseman v. United Rys. Co., Mo.App., 251 S.W. 104, 106; Hook v. Missouri Pac. R. Co., 162 Mo. 569, 581, 63 S.W. 360, 362; Highfill v. Wells, Mo.Sup., 16 S.W.2d 100, 103; Dunn v. Alton R. Co., 340 Mo. 1037, 104 S.W.2d 311, 314; Davidson v. Missouri Orpheum Co., 236 Mo.App. 1025, 161 S.W.2d 707, 709; Bauer v. Wood, 236 Mo.App. 266, 154 S.W.2d 356, 359. The facts in those cases were so different from the facts in this case that they are of little or no aid in the determination of this case, except the abstract statement of the law that "When established physical facts and common observation and experience conflict with the testimony of a witness, such testimony does not amount to substantial evidence of the alleged facts testified to and cannot be accepted as the basis of a verdict and judgment." Kibble v. Quincy, O. K. C. R. Co., 285 Mo. 603, 227 S.W. 42, loc. cit. 46. But the Kibble case, and the case of Schupback v. Meshevsky, Mo. Sup., 300 S.W. 465, as well as many other cases, hold that such rule applies only when such legal conclusion is so clear and irrefutable that no room is left for the entertainment by reasonable minds of any other conclusion. The first three cases appellants cite, and which we assume are the three authorities principally relied on, as required by Rule 1.08 of the Practice and Procedure in the Supreme and Appellate Courts, are not workmen's compensation cases. The decisions in the Carner case and the Hook case are based on the theory that when to look is to see, the statement of a plaintiff that he did look and did not see will be disregarded. The Roseman case presented an impossible conclusion based on plaintiff's evidence alone of speed and distances.
One of the applicable principles of the law as stated in the case of Lovell v. Williams Bros., Mo.App., 50 S.W.2d 710, loc. cit. 713, is as follows: "The cardinal purpose of the Compensation Act is to insure the employee against accidental injury arising out of and in the course of his employment. To this end the act should be liberally construed. To exclude any accidental injury to an employee, arising out of and in the course of his employment, this intention should clearly appear from the language used. A strict construction against the employee should not be resorted to in order to accomplish such exclusion."
It is the duty of the commission, as well as of the courts to construe the compensation act with a liberality calculated to effectuate its purpose and with a view to the public welfare. Any doubts regarding the right of compensation should be resolved in favor of the employee. If the finding could be either way then the finding of the commission is conclusive on the courts, unless contrary to the overwhelming weight of the evidence. These and other cardinal principles have been so often stated by appellate courts that citation of cases is unnecessary. And so the question of cases is unnecessary. And so the question here is not so much a difference of opinion as to the law as it is how to apply the law to the given facts.
It is not of much importance as to whether the wheel that the claimant pulled on to adjust the hammer of the machine rotated or moved up and down. If the witnesses of the employer-insurer are to be credited, the wheel could not and did not move sideways or rotate. But it must also be borne in mind that the claimant made no positive assertion that it did jerk sideways. She did not know exactly what occurred, and repeatedly said so. Her testimony was that it seemed like the wheel gave a jerk and jerked her sideways; when again asked if the wheel jerked, she said, "I would say it did. It happened so quick and hurt so bad I would not be positive, but I know something happened to it;" "it just jerked like, I guess you would call it. More of a jerk than anything else, I guess, and I know I was off balance;" she then said, "Well, I don't know just how to explain it. That is my trouble."
Little or no significance should be attached to the answer of claimant on cross-examination to the effect that the machine did not "trip". Often a segregated answer of a witness, standing alone and unexplained, leaves a false impression of such witness' testimony. On cross-examination the following took place:
"Q. On the occasion you say your arm was injured, Mrs. Schmidt, did you say the machine jerked? A. Yes, sir.
"Q. You reached up, (correct me if I am wrong), took the adjusting wheel in your left hand and turned it around? A. Yes, sir.
"Q. And felt as though the wheel jerked you around; is that it? A. Seemed just like it was a jerk and I just went all to pieces and the pain was terrible.
"Q. The wheel jerked your arm; is that right? A. Yes, sir.
"Q. The machine didn't trip at the time, go up and down? A. Oh no."
It is clear from these questions and answers, and from the whole of the claimant's testimony, that she did not know and was not intending to tell just what happened to cause a jerking sensation in her arm. She knew something out of the ordinary occurred, and immediately she felt the pain as though caused by a thousand and one needles had ripped the arm out of its socket.
That the claimant was standing in a strained position and pulled on the wheel real hard several times when it "seemed" like the wheel gave a jerk is not contradicted by any other evidence in the case. All of the testimony is to the effect that the hammer on this machine may operate automatically. This could only be caused by something unusual happening that caused the clutch becoming "jammed". It could be caused by a set screw that sometimes loosens up and causes the hammer to repeat. It is a fair inference that one or more of these things did occur and caused the machine to click right at the moment the claimant was in the strained position with her left hand stretched up and pulling at the wheel. That would have caused the wheel to jar or jolt and leave the sensation of a jerk.
There is nothing to dispute or contradict claimant's testimony that she at once cried out in pain and misery, and although she had worked regularly for twenty-nine years, she has not worked since the accident except for a day and a half that she tried to resume her work and could not because of the pain. That she had objective signs of injury is shown by her own doctor and by the doctor who was called by the employer-insurer. The tendons or ligaments were torn loose from the left shoulder. The doctors say she has lost from sixty per cent to three-fourths of the use of her left arm.
Not only so, but there is no physical fact shown by the other evidence which proves claimant's testimony to be false. As said by this court in Robertson v. Wall, Mo.App., 195 S.W.2d 894, loc. cit. 899, "A physical fact which would establish the falsity of plaintiff's version of how the accident occurred should be a physical fact appearing from plaintiff's evidence, or a fact admitted by plaintiff, and which would disprove her oral testimony." Or, it might be a fact of such universal or common knowledge and experience as to require no other evidence than the fact itself of its existence. If the so-called physical fact must be proved to exist by oral testimony of witnesses then it is not such a physical fact as destroys the testimony of a witness to the contrary, but amounts to nothing more than a conflict in the testimony, and the ultimate fact is to be found by the triers of fact.
It is common observation and experience that a complicated machine which has been in use for many years may not always operate as it is designed or intended to, and may jerk or jar or jolt, and the operator, such as claimant here, not being a machinist, would be unable to tell what caused it to do so. In this age of complicated machinery and fast travel there are few of us who do not know how to start and stop and operate an automobile, but there are also few who know what is the cause when the mechanism fails to work as is intended, and we find expert mechanics along the roads and highways earning a living as trouble fixers for balking machines.
In the case of King v. F. W. Woolworth Co., Mo.App., 132 S.W.2d 668, 669, and in the case of Hickman v. Metropolitan Life Ins. Co., 238 Mo.App. 588, 185 S.W.2d 840, loc. cit. 841, the Springfield Court of Appeals stated the rule of law that should control the decision in this case and which is as follows: "In determining whether the Commission's award is justified by the evidence, the reviewing court will look only to the evidence most favorable to the award, together with all reasonable inferences that may be drawn therefrom that seem to support the award and must disregard all opposing and unfavorable evidence; and this is true even though the finding of the Commission to the contrary would also have been supported by the evidence; and that the weight of the evidence and the credibility of the witnesses are for the Commission to determine."
The judgment of the circuit court should be and is affirmed.
ANDERSON, P. J., and McCULLEN, J., concur.