278 P. 707 | Kan. | 1929
The opinion of the court was delivered by
This was an action by Fred Gilbreath to recover compensation from the Prairie Oil and Gas Company for injury sustained by him on November 11, 1926, while engaged as a pumper on an oil lease that was operated by the defendant. He alleged his employment, that the defendant was operating under the compensation law and that while attempting to repair the pump of the company his clothing was caught in the gearing of the machinery and he was drawn into it, with the result that his left side, shoulder and arm were lacerated, and that certain other injuries had been suffered. The trial court found the injury to be permanent, that the disability was partial in quality, and awarded him compensation for a short period for total disability and six dollars per week for the remainder of the eight-year period. The defendant in its answer admitted that the plaintiff was in its employment, and that in the course of the employment in the production of oil and gas he suffered accidental injuries, but it denied that the injuries were of the character and to the extent alleged by plaintiff, and further that he did not suffer any permanent partial disability. After alleging due service of a demand for compensation, defendant stated that plaintiff had received compensation at three different times in the amount of $170.78, and that it had incurred and paid in his behalf expenses on account of the injuries, at a hotel to which
Some complaint is made of the overruling of a motion to make the plaintiff’s petition more definite and certain in respect to the extent of the injuries suffered by plaintiff, and to set out copies of demands for arbitration. It is evident from the record that no prejudice could have resulted from the refusal of this motion. The facts in the case were quite fully brought out and the matter of the motion was one largely within the discretion of the court.
Error is assigned on the admission of evidence given by Doctor Jeffery, who had made a personal examination of plaintiff the day prior to the commencement of the trial. The witness first stated his experience as a physician, and to the effect that in company with Doctor Janes he had examined the plaintiff after his body had been stripped; that it was done by inspection, palpitation, manipulations and stethoscope; that nothing was found about the heart except perhaps low vitality. That when an attempt was made to lift his left arm there was decided resistance before it reached the horizontal; that he did not discover any bad lesion in the joint itself, as the injury was mostly confined to the soft parts. He also stated that they found a lot of scar tissue where the stitches had been taken which protruded a half inch or more. That the scar tissue was about the size of a hand. He was then asked whether or not, in his opinion, the injury is a disabling one, but the question
“In the first place, then, there is no principié and no orthodox practice which requires a witness having personal observation to state in advance his observed data before he states his inferences from them; all that needs to appear in advance is that he had an opportunity to observe and did observe, whereupon it is proper for him tó state his conclusions, leaving the detailed grounds to be drawn out on cross-examination.”
Complaint is made of the admission of testimony given by the wife of plaintiff as to his condition on the day following the accident. She said he was nervous and upset and wanted to be put to bed at once. Asked if she could tell what his apparent condition was as to suffering pain, she replied, “Oh, he was suffering.” On nontechnical questions relating to the appearance of persons and things which cannot well be reproduced or made palpable to a jury, a witness may express an opinion upon data which he has observed. (State v. Baldwin, 36 Kan. 1, 12 Pac. 318; State v. Scott, 117 Kan. 303, 235 Pac. 380; 4 Wigmore on Evidence, 2d ed., § 1974.) There may be some doubt as to whether the witness was competent to give an opinion as to whether plaintiff was suffering pain, but if it be assumed to be inadmissible it cannot be regarded as material. The conceded facts relating to the condition of plaintiff after passing through the mill, with flesh cut and mashed in a way which is not in dispute, made it certain that he was suffering pain, and we wonder why it was deemed necessary to ask such a question.
A further assignment of error is based upon the refusal of the
“The unreasonable refusal of an injured employee to permit a surgical operation where the danger to life from the operation would be very small, and the probabilities of a permanent cure very large, justifies a court in refusing compensation under the workmen’s compensation law from and after the trial.” (Strong v. Iron & Metal Co., 109 Kan. 117, syl. ¶ 1, 198 Pac. 182.)
’ A further holding was that—
“The unreasonableness of the refusal of an injured employee who is seeking to recover compensation under the workmen’s compensation act, to permit an operation to be performed, is a question of fact to be determined from the evidence.” (Syl. ¶ 2.)
In a later case, where an injury had produced a hernia and where the defendant was insisting that plaintiff should submit to an operation, at its expense, the arbitrator found that such an operation which plaintiff had refused is successful in a great majority of cases,
“That an operation at plaintiff’s age, in his then physical condition, to remedy his hernia, would endanger plaintiff’s life, and that plaintiff’s refusal to accept the operation tendered by defendant is not unreasonable on the part of plaintiff, and that plaintiff, to secure compensation for the injuries received, should not be compelled to submit to an operation.” (Gilbert v. Independent Construction Co., 121 Kan. 841, 842, 250 Pac. 261.)
On appeal this court held that whether or not the refusal was reasonable was a question of fact to be determined from the evidence in the case, and affirmed the judgment.
Here the court sustained the refusal upon the evidence which has been stated and awarded compensation. It may be noted that the demand for an operation was not made to effect a cure of an ailmént or injury, but was rather to determine whether the plaintiff was a malingerer and whether the testimony of his medical witnesses was worthy of belief. In view of the testimony we cannot say that the refusal of the court to compel the plaintiff to submit to the administration of an anaesthetic for the purpose named is a ground of reversal.
There is complaint of the refusal of the court to make special findings requested by the defendant, but those made by the court cover the issues so fully that no real ground for the complaint is seen. Nor can we sustain the assigned ground of error that the evidence is not sufficient to support the findings. The evidence appears to be ample, at least sufficient to uphold the findings and conclusions of the court.
Another ground of complaint is that the court without authority rendered a lump-sum judgment. It is contended that the injury or the result of it was not ascertainable by objective examination. The statute, among other things, provides:
“The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for periodical payments, as in an award: Provided, In no case shall a lump-sum judgment be rendered for any injury not ascertainable by objective examination, but in such cases the court may order periodical payments during*626 .incapacity of such sums as may be due under the provisions of section 4 of this act,” etc. (R. S. 44-534.)
A reading of the testimony satisfies us that the injury as described by the medical witnesses was ascertainable by objective examination, and that the case comes fairly within the class in which a lump-sum judgment is authorized. (Fronk v. Ajax Drilling Co., 121 Kan. 708, 249 Pac. 680.) It is also said that there is a lack of evidence that plaintiff asked for or consented to an arbitration. This can hardly be regarded as a contested issue in the case. The plaintiff pleaded demand for compensation, that all due and proper notices were given and also of an offer to arbitrate, which was refused by defendant. In its answer defendant admitted that written notice and demand for compensation had been given under the terms as provided in the act. At the opening of the trial counsel for plaintiff made the following statement:
“By Mr. Mosman : This suit, your honor, was originally brought by two counts, the first count being for common-law damages and the second count for compensation. The action is to be tried upon the second count for compensation. The facts, briefly, are that 'Mr. Gilbreath worked for 'the Prairie Oil and Gas Company as :pumper on the lease and-was caught in certain machinery and injured. .1 don’t believe there is any question in the.,case about whether or. not the employer and employee were under the compensation law, or' the fact that notice of that claim had been made. I think the only question, as I'understand it, is as to the’ extent of this man’s injuries and also whether he has been paid full compensation. Some compensation has been 'paid. ; ,
“By Mr. Stevens: I think that’s about all.
“By Mr. Mosman : I think the facts are simple, so that it is not necessary to go into the statement to any extent.”
In view of this statement and acquiescence by counsel for defendant, and the course of the trial, the objection that there was an absence of evidence of a request for arbitration or consent to it, is not available as a ground of reversal.
Finding no prejudicial error, the judgment is affirmed.