Detling v. Tessier

WARREN, J. This case is before us on rehearing, the former opinion being reported in 60 S. D. 405, 244 N. W. 538. See, also, the former opinion on motions to dismiss, 59 S. D. 467, 240 N. W. 598. *404 A rehearing was asked and granted upon the sole ground of the insufficiency of the evidence. The respondent urges that the record upon which the former opinion was based did not contain sufficient of the evidence presented at the hearings before the industrial commissioner. He asserts that the evidence in the newly supplied record has been materially strengthened and that this court ought now on account thereof reach a different conclusion. In our former opinion we devoted considerable space to the facts as disclosed by the record. See 60 S. D. 405, 244 N. W. 538, for statement of facts and opinion. We have carefully gone over the additional matter which was not before us and can see no possible escape from our former conclusion. There is nothing in the new record that can change our rule to the effect that where there is any reasonable, credible, or substantial evidence before the industrial commissioner that his findings and award will be sustained. An examination of the record before us fully convinces us that the additional statement in the record has worked no' change favorable to the respondent. Respondent urges that the respondent’s fall upon the frozen earth is probably responsible for the strange things he (Detling-) did, and contends that the evidence shows that he was normal before the fall and abnormal afterwards. We have carefully examined: the testimony given by the doctors and other witnesses to ascertain the correctness of that contention, and we are unable to find any evidence in support of such contention. The testimony of the physicians is somewhat conflicting and it was within the province of the industrial commissioner to consider the disagreement in the testimony of these expert witnesses and to accept that testimony which seemed most consistent with all the testimony and of the greater credibility. We are of the opinion that there is reasonable and substantial evidence justifying the findings of the commissioner and that the circuit court should have sustained the findings of the commissioner. We have given this case, after the reargument, careful consideration; we adhere to our former decision. The order and judgment appealed from are reversed. RUDOLPH, P. J, and POLLEY and ROBERTS, JJ., concur. CAMPBELL, J-, not sitting.