Opinion
No. 21380.
November 20, 1950.
APPEAL FROM THE CIRCUIT COURT, JACKSON COUNTY, WILLARD W. REED.
Lathrop, Crane, Sawyer, Woodson Righter, Winston H. Woodson and Robert D. Youle, all of Kansas City, for appellant.
Hudson, Whitcraft Cavanaugh, Thomas E. Hudson, Kansas City, for respondent.
This is an appeal by the employer, Railway Express Agency, Inc., from the judgment of the Circuit Court affirming an award of the Industrial Commission in favor of the employee, Willard W. Reed, in the amount of $744.46. The Referee found that Reed failed to prove that he had sustained an accident arising out of and in the course of his employment and accordingly denied compensation. Claimant applied for a review of the award by the full Industrial Commission, which was granted, and the Commission, without any dissent, handed down a final award reversing the Referee and entering a finding in favor of claimant.
Reed's claim is that while in the employ of appellant as express handler on February 28, 1947, at about 11:00 or 11:30 a. m., he sustained an accidental injury. He testified that on that date he was working for appellant on the extra board and was injured while working on one of the loading platforms used by appellant in the railroad yards of the Union Station in Kansas City, Missouri. He was helping unload express packages from a railroad car onto an express wagon, working with a crew under a foreman named "Pop" Payne. Payne and claimant were on the platform and the other members of the crew were inside the car. This platform was in the open, was covered with ice and snow and "the footing was slippery." Claimant stated: "Well, we had got the wagon loaded and Pop was hold of the tongue and I went around the wagon to help push it away from the car and my feet slipped." He did not "fall to the ground, my feet just slipped and I hung on to the wagon to get my balance, when I got my balance I seen I was hurt, twisted my back." He was asked: "Following this accident and your injury there did you say anything, make any report to Pop Payne, your foreman? A. I did. Q. When? A. Right at the time. As soon as the wagon stopped a few feet from the car I walked around and told Pop, `I jimmied myself up, I have hurt myself in the back'". Claimant continued working the balance of the regular working day at work which did not require any lifting or carrying. After his regular quitting time at 3:30 p. m., he went to his home in Independence, went to bed and applied heat to his back, but did not call a doctor. He returned to work on March 3rd or 4th and worked in the city room under a foreman named Roy Lundgren. Claimant testified that at noon of that day he told Lundgren: "Roy, I took it as long as I can, my back is killing me. I want you to okay my card so I can go home." Lundgren complied with this request and claimant went home. He has not since worked for appellant.
Claimant further testified that on March 7, he went to appellant's office and talked to a Mr. Sandy, who handled personal injury claims against appellant, and told him that he had hurt his back while loading express. Sandy accompanied claimant to the office of F. K. Burgess, who handled compensation cases for appellant, and claimant said: "Yes, he (Burgess) told me they wouldn't take it under compensation that it would have to come under group insurance * * * he said on account of I had trouble with my back before." Claimant admitted having injured his back about a year earlier, for which he had been paid compensation and given medical treatment. Claimant was sent to Mr. Wilson in regard to group insurance coverage and said he told Wilson how he was hurt. Claimant did not make a claim under group insurance and did not receive medical treatment from appellant.
On the same day, March 7, 1947 claimant testified that he went to see his own doctor, Dr. V. E. Link, who advised continuing the heat treatment. He later went to Dr. William Feeham who prescribed a brace, which claimant procured and was wearing at the time of the hearing.
Claimant said that he did not tell Mr. F. K. Burgess anything about his feet slipping because: "He didn't give me a chance — he didn't ask me"; that he merely told him "I got hurt out there working." Reed testified that Mr. Sandy was present and he and Mr. Burgess were discussing "whether it would come under group insurance or would it come under compensation." He also said that Sandy did not ask him how the injury happened, so he didn't tell him of his feet slipping.
Reed also testified that on March 7, 1947, when he saw Mr. Wilson, he told him of his feet having slipped and "he asked me if I fell and I said no I didn't fall." He saw Mr. A. C. Burgess, a supervisor for appellant-employer, briefly on the same day about his claim but he did not tell Mr. Burgess anything about slipping because "He didn't ask me."
Appellant called Mr. Sandy, who testified that on March 7, 1947, when Reed came to him "* * * he stated that a week before when he got home his back started hurting him * * *. I said `when did it happen and why did it happen, and what is this all about?' He said, `I don't know * * *. It must have happened while I was working.' I said `Do you have any proof that it happened while you were working, and he said `No'." Reed never told him (Sandy) or Mr. F. K. Burgess of his feet slipping. Mr. F. K. Burgess testified that Reed "stated that his back simply started to bother him on February 28th. * * He said that he had noticed it after he left work and gone home that night and I asked him if he had an accident and he said that he had not that he knew of, that he couldn't recall any accident or how it occurred, but his back was simply bothering him."
Both Sandy and Burgess testified that Reed was told he was sent to Wilson, who was in charge of the group insurance, because "without any history of an accident it would have to be handled as group insurance." Burgess testified that he also fully explained to Reed that "we had to have a history of an accident before I could accept it as a compensable case," and gave him every opportunity to tell of an accident. He took no written statement from Reed, because he gave no history of an accident.
Mr. Wilson testified for appellant-employer that Reed told him "that he could not name a specific time and place that could make this come in the category of a personal injury"; that Reed did not tell him that he slipped on February 28, 1947, while pushing a truck, twisting his back.
Mr. A. C. Burgess testified for appellant that on the afternoon of March 7, when claimant, in company with Mr. Sandy, came to his office, "I inquired as to any specific instance that would have pointed out that he had definitely injured himself while on duty, but Mr. Reed could not give any specific case at the time that was outside of his regular line of work that had created the back condition that he claimed existed at the time." He said Reed did not tell him that his feet slipped and that, as there was apparently no connection between Reed's work and his disability, no statement was taken from him.
Mr. Lundgren, claimant's general foreman, testified that Reed did not tell him on March 3rd, 1947, that he had hurt his back while working.
Appellant also called Almon "Pop" Payne, who was the foreman under whom claimant was working on February 28, 1947. He did not see Reed hurt, nor see him slip, nor did Reed tell him he had hurt his back while pushing the wagon. On cross-examination Payne was shown a written statement which he admitted signing and reading before signing. This statement is not dated but was given about a month after February 28, 1947. It reads: "My name is Almon Payne. I live at 421 S. Colorado. Phone is CH 3827. I work at the Railway Express Company and have worked there since June 7, 1920. I know a man by the name of Willard Reed who worked with me. I remember one day the latter part of February, 1947, that we were working together unloading a car load of fruit. There was a heavy snow and I was pulling on a tongue on a truck loaded with fruit and Willard was pushing and just after we had pulled the truck in the clear Willard said my feet slipped and I hurt my back. He worked the rest of the day doing light work as I recall but I was not around him. /s/ Almon Payne."
Appellant also introduced a written statement executed by Payne, dated May 26, 1947, and directed to Mr. A. C. Burgess. In this latter statement Payne stated that he had no recollection of a statement by Reed that his feet slipped causing him to twist his back. Payne's explanation of giving the statement introduced by claimant was that such statement was given in connection with an insurance company claim.
Reed's claim for compensation was filed on March 12, 1947, by O. M. Edmonson, legal adviser to the Division of Workmen's Compensation. The claim gives the date of accident as February 28, 1947, and recites: "Was working as express handler, was pushing a four wheeled truck heavily loaded with express packages which was being pulled by a co-employee. Ground was covered with snow and ice and in pushing on the truck employee's feet slipped causing a strain and injury to his back and spine."
In connection with this claim a written report was made by Mr. Edmonson. It gives the date of the injury as February 28, 1947, and recites: "Involves injury to back from slipping on ice. No compensation paid. Not able to work. I phoned employer and talked with Mr. F. K. Burgess who stated that employee did not have an accident and declined to pay compensation or to furnish any medical attention."
Mr. Burgess admitted talking to Mr. Edmonson but denied that Edmonson said to him that Reed claimed that he had slipped on ice or snow while pushing a truck.
Appellant in its brief says: "The sole question before this Court is whether the judgment of the Circuit Court * * * affirming the award of the Industrial Commission, which award reversed the findings of the Referee and found that there was an accidental injury, is supported by competent and substantial evidence upon the whole record."
In determining this question we are governed by the rule laid down in the leading and much cited case of Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649. It is there said: "This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Of course, the reviewing court should adhere to the rule of deference to findings, involving credibility of witnesses, made by those before whom the witnesses gave oral testimony." 197 S.W.2d 647, loc. cit. 649.
In view of appellant's contention we have set forth the evidence somewhat in detail. There is no need to extend this opinion by further comment upon it. It is our view that the transcript merely discloses a conflict of evidence — a situation in which only the credibility of witnesses was involved. Plaintiff was the only witness to the alleged accident. His testimony, if believed by the triers of the facts, constituted substantial evidence. Keller v. St. Louis Butchers' Supply Co., Mo.Sup., 299 S.W. 173, loc. cit. 175; Walker v. Pickwick Hotel, Mo.App., 211 S.W.2d 55, loc. cit. 58, Here plaintiff was corroborated by the statement of his foreman, Payne. Certainly we cannot say that the award of the Industrial Commission is "clearly contrary to the overwhelming weight of the evidence." This being so, under the holding in the Wood case, supra, we should not substitute our own judgment on the evidence for that of the Commission.
The judgment is affirmed.
All concur.