HARRELL v. J.S. FRANK CONSTRUCTION CO., 210 Kan. 548 (1972)

502 P.2d 762

JIMMY R. HARRELL, Appellant, v. J.S. FRANK CONSTRUCTION COMPANY and COMMERCIAL UNION INSURANCE COMPANY, Appellees.

No. 46,746Supreme Court of Kansas
Opinion filed November 4, 1972.

MEMORANDUM OPINION

WORKMEN’S COMPENSATION — Accident Arising Out of and in Course of Employment — Question of Fact — Negative Finding.

Appeal from Mitchell district court; MARVIN O. BRUMMETT, judge. Opinion filed November 4, 1972. Affirmed.

Robert F. Glassman, of Hays, argued the cause, and was on the brief for appellant.

C. Stanley Nelson, of the firm of Hampton, Royce, Engleman
Nelson, of Salina, argued the cause, and was on the brief for appellees.

Per Curiam:

This is an appeal in a workmen’s compensation case. The district court reversed the award entered in favor of the claimant-appellant by the examiner which was affirmed by the director, and entered judgment in favor of the employer and its insurance carrier, the appellees. In so doing, the court made a negative finding that the claimant did not sustain personal injury by accident arising out of and in the course of his employment.

Whether the disability of a workman is due to an accident arising out of and in the course of his employment is a question of fact and the district court’s determination will not be disturbed by this court when there is substantial competent evidence to sustain it. (Callahan v. Eby Construction Co., 192 Kan. 814, 391 P.2d 315.) Further, this court will seldom set aside a negative finding of a district court if the evidence is limited in quantity and its weight and credibility may be questionable, or if the evidence may be disregarded for any reason. (Schmidt v. Jensen Motors, Inc., 208 Kan. 182, 490 P.2d 383.)

Although the evidence was conflicting on the question whether appellant sustained personal injury by accident arising out of and in the course of his employment, we conclude there is ample substantial competent evidence in the record to sustain the district court’s judgment.

The judgment is affirmed.

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