Opinion
Opinion filed June 6, 1939.
Workmen's Compensation — Appeal and Error. In appeal from Circuit Court affirming an award of the Workmen's Compensation Commission held that appellate court was not authorized to direct the Commission as to its future action with respect to employee's claim.
Appeal from the Circuit Court of City of St. Louis. — Hon. Wm. S. Connor, Judge.
REVERSED AND REMANDED ( with directions).
Kenneth A. Osborn, A.B. Lansing and Moser, Marsalek Dearing for respondents.
(1) Secs. 3339, 3342, R.S. Mo. 1929; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601. The findings of the commission must be accorded the force and effect of the verdict of a jury. The award must be sustained if there is evidence to support it, even though there is evidence in the record which would support an award to the contrary. Jones v. Century Coal Co. (Mo. App.), 46 S.W.2d 196, 198; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236. It is the province of the commission to pass upon the credibility of the witnesses and the weight to be given to their testimony. Adams v. Continental Life Ins. Co. (Mo.), 101 S.W.2d 75, 77, 82; Noto v. Hemp Co. (Mo. App.), 83 S.W.2d 136, 139; Gould v. C.B. Q.R. Co., 315 Mo. 713, 723, 290 S.W. 135. (2) The contention that the employee is totally disabled cannot be sustained, in view of the evidence in the record, and the finding of the commission, that her disability is confined to her left leg, and is partial. Sec. 3305, R.S. Mo. 1929; O'Donnell v. South Fayette Township School District (Pa.), 161 A. 887; Lente v. Luci, 275 Pa. 217, 119 A. 132, 24 A.L.R. 1462; Rakiec v. Delaware, L. W.R. Co. (N.J.), 88 A. 953; Hull v. United States F. G. Co. (Neb.), 166 N.W. 628; Aetna Life Ins. Co. v. Ind. Com. (Utah), 228 P. 1081; Ujevich v. Inspiration Cons. Coal Co. (Ariz.), 25 P.2d 273; Fitzgerald v. Southern Surety Co. (Tex. Civ. App.), 75 S.W.2d 298. (3) The commission properly awarded the employee compensation under the section of the law governing permanent partial disability. Sec. 3315, R.S. Mo. 1929; Reay v. Elmira Coal Co., 225 Mo. App. 102, 34 S.W.2d 1015.
William A. Dorsey and Edw. C. Friedewald for appellant.
(1) For total disability, compensation shall be paid for not more than 400 weeks. Sec. 3313, R.S. Mo. 1929. (2) Sec. 3305, par. E, R.S. Mo. 1929. (3) Maddux v. Kansas City Public Service Co., 100 S.W.2d 535; Kinyon v. Kinyon, 71 S.W.2d 78, l.c. 82. (4) Disability should be deemed "total disability," whenever the employee is unable to obtain work of the type she is able to do, and the burden is upon the employer to show that work of the kind employee can do is obtainable. Fennell's Case, 193 N.E. 885; Lupoli v. Atlantic Tubing Co., 111 A. 766; Texas Employers Insurance Ass'n v. Ray, 68 S.W.2d 290; Pellitteri v. Blackmer Post Pipe Co., 50 S.W.2d 662; Kinyon v. Kinyon, 71 S.W.2d 78. (5) Where injuries cause the loss of use of a leg, and the leg cannot be amputated, but remains as a member to the hindrance of the body and incapacitates the use of the entire body so as to prevent the employee from engaging in an occupation which would bring an income, the employee is totally disabled. Kingsport Silk Mills v. Cox, 33 S.W.2d 90; Clark v. Clear Opera House, 275 Pa. 244; Central Surety Insurance Co. v. Court, 36 S.W.2d 907; Farmers Co-op. v. Beagley, 12 P.2d 544. (6) Standard Accident Insurance v. Williams, 14 S.W.2d 1015; Norwick Union Indemnity Co. v. Wilson, 17 S.W.2d 68; Texas Employers Insurance Ass'n v. White, 79 S.W.2d 911. (7) Yancy v. Egyptian Tie Lbr. Co., 95 S.W.2d 1230.
This is a proceeding under the Workmen's Compensation Act in which Maude Caldwell, employee, appellant, appealed from a judgment of the Circuit Court of the City of St. Louis, Missouri, affirming an award made by the Missouri Workmen's Compensation Commission in her favor and against respondents, employer and insurer.
The award of the Missouri Workmen's Compensation Commission which was affirmed by the judgment of the circuit court allowed the employee compensation of $10 per week for 207 weeks for permanent partial disability. After a hearing in this court on appeal, this court reversed the judgment of the circuit court and remanded the case with instructions to that court to remand the case to the commission "with instructions to make a temporary or partial award of compensation for temporary total disability; and with further instructions to the commission to retain jurisdiction of the cause and keep the same open until a final award can be made, after a hearing, upon application of any party or upon the commission's own motion." [See Caldwell v. Melbourne Hotel Co. et al. (Mo. App.), 116 S.W.2d 232.]
Thereafter, the employer and insurer applied to our Supreme Court for a writ of certiorari, which was granted. After a hearing in the Supreme Court on certiorari, that court ruled that the portion of this court's opinion and record giving specific directions to the Workmen's Compensation Commission with respect to its future action was in conflict with certain prior decisions and opinions of the Supreme Court, and ordered that said part of this court's record and opinion be quashed. [See State ex rel. Melbourne Hotel Co. et al. v. Hostetter et al. (Mo. in banc), 126 S.W.2d 1189.]
After the aforesaid part of the opinion and record of this court relating to the specific directions to the Workmen's Compensation Commission with respect to its future action was quashed by the Supreme Court, the cause was again set down for hearing in this court and was, without argument, duly submitted by the parties on the original briefs herein.
We deem it unnecessary to present here the evidence and the proceedings in the trial court inasmuch as they are fully set forth in the opinion of this court in Caldwell v. Melbourne Hotel Co. et al. (Mo. App.), 116 S.W.2d 232, and are referred to at length by the Supreme Court in State ex rel. Melbourne Hotel Co. et al. v. Hostetter et al. (Mo. in banc); 126 S.W.2d 1189.
In compliance with the opinion and mandate of the Supreme Court, and for the reasons given in that court's opinion in State ex rel. Melbourne Hotel Co. et al. v. Hostetter et al., supra, the judgment of the circuit court is reversed and the cause remanded with directions to that court to remand the cause to the Workmen's Compensation Commission for further proceedings not inconsistent with the opinion of this court in Caldwell v. Melbourne Hotel Co. et al., supra, except as to the specific instructions to the commission therein which are quoted above herein. Hostetter, P.J., and Becker, J., concur.