Miller v. Ralston Purina Co.

• Citation: 109 S.W.2d 866,341 Mo. 811
• Parties: Ruth M. Miller v. Ralston Purina Company, Employer, and Liberty Mutual Insurance Company, Insurer, Appellants
• Decision Date: 10 November 1937
• Court: Missouri Supreme Court

109 S.W.2d 866

341 Mo. 811

Ruth M. Miller v. Ralston Purina Company, Employer, and Liberty Mutual Insurance Company, Insurer, Appellants

Supreme Court of Missouri

November 10, 1937

Appeal from Circuit Court of City of St. Louis; Hon. Clyde C Beck, Judge.

Reversed.

Woodward & Evans for appellants.

(1) There being sufficient competent evidence to support the award of the Workmen's Compensation Commission, the findings of fact were binding upon the circuit court and should not have been disturbed. Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Crutcher v Airplane Mfg. Co., 331 Mo. 169, 52 S.W.2d 1019; Doughton v. Marland Ref. Co., 331 Mo. 280, 53 S.W.2d 236; Probst v. Basket & Box Co., 52 S.W.2d 501; Cripps v. Union-May-Stern, 104 S.W.2d 683. (2) An award of compensation in favor of claimant could not stand for the reason that there is no competent evidence in the record to support a finding that the employee suffered an "accident" within the meaning of the Compensation Law. The contraction of a contagious disease, such as psittacosis, is not an accident and is not compensable under the law. Secs. 3301, 3305, R. S. 1929; Miller v. Transfer Co., 224 Mo.App. 1114, 32 S.W.2d 449; Delille v Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834; Meldrum v. Feed & Mill Co., 229 Mo.App. 158, 74 S.W.2d 75; Carter v. Priebe & Sons, 77 S.W.2d 171; Richardson v. Greenberg, 188 A.D. 248, 176 N.Y.S. 651; State ex rel. Woolen Mills Co. v. District Court, 138 Minn. 210, 164 N.W. 810. There is not even sufficient evidence to support a finding that the employee contracted psittacosis in the course of his employment. Such a conclusion is necessarily based upon speculation and conjecture and by piling presumption on presumption. Hays v. Hogan, 273 Mo. 1, 200 S.W. 286; Menteer v. Fruit Co., 244 Mo. 177, 144 S.W. 833; State ex rel. Utilities Co. v. Cox, 298 Mo. 427, 250 S.W. 551. (3) Inasmuch as the statute specifically excludes "contagious and infectious disease contracted during the course of the employment" from the operation of the law, and it affirmatively appearing from the evidence that the employee died from a contagious disease and that his condition was neither caused nor aggravated by accident or accidental injury, it follows as a matter of law that no award of compensation could be made in favor of claimant. Sec. 3305(b), R. S. 1929; Cases under point (2).

Harry E. Wiehe and Robert L. Ailworth for respondent.

(1) The finding of the commission and the substantial evidence show that the deceased was infected with psittacosis virus by contact with lovebirds in a Detroit store in the course of his employment Any other conclusion is not supported by the substantial evidence required by law. Wahlig v. Krenning-Schlapp Gro. Co., 325 Mo. 677, 29 S.W.2d 129; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 331 Mo. 169, 52 S.W.2d 1019; Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909. (2) Infectious diseases are not barred under Section 3305, Revised Statutes 1929, reading [the said terms (injury or personal injury) shall not be construed to include any contagious or infectious disease contracted during the course of the employment]: if such diseases arise out of the employment. The infectious disease in this case did arise out of the employment. Rinehart v. Stamper Co., 55 S.W.2d 729; Downey v. K. C. Gas Co., 92 S.W.2d 1063; Hartford Acc. & Indem. Co. v. Hay, 17 S.W.2d 904; Great A. & P. Tea Co. v. Wilson, 171 S.E. 827. (3) The evidence shows reasonable probability of accidental infection at the place of employment and it is not necessary for claimant to show affirmatively that the disease was not acquired elsewhere. Zimmerman v. Goodfellow Lbr. Co., 56 S.W.2d 608. (4) The entrance into the body of injurious and poisonous substance through a natural opening or portal is an accidental injury within the meaning of the Workmen's Compensation Act and the decedent herein suffered such an accidental injury. Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Jackson v. Euclid Pine Inv. Co., 22 S.W.2d 1063; Powell v. Ford Motor Co., 78 S.W.2d 572; Meyer v. Orek Coal Co., 82 S.W.2d 924; Hartford Acc. & Indem. Co. v. Hay, 17 S.W.2d 904.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This cause is under the Workmen's Compensation Law. Claimant is the widow of Charles H. Miller, deceased who was at the time of his death, in the employ of the Ralston Purina Company. It is conceded that both the employer and employee were under the Compensation Law, and that claimant is a dependent.

It is alleged in the claim for compensation that on March 10, 1934, the employee "was engaged in demonstrating and selling animal feed in establishments where animals and birds, including parrots and parakeets, were offered for sale," and that "while so employed and in the performance of his duty and employment, he came in contact with or proximity to a parrot or parakeet or lovebirds infected with psittacosis or parrot fever, and said employee thereby became accidentally injured and infected with said disease, suffering therefrom, pain and violent injury to his lungs and body, causing his death."

The employer and insurer answered jointly, denying "that the death of Charles Miller was the result of an accident arising out of and in the course of his employment with named employer. It is further denied that there was any connection between death of the employee and his employment."

On a hearing before a referee the finding was against claimant. The referee found that the death of the employee "was not caused by an accident arising out of and in the course of his employment; hence the commission is without authority to award compensation or death benefit." On review before the full commission, the finding of the referee was affirmed, the full commission finding that the death of the employee "was not the result of an accident as defined in paragraph (b) of Section 3305, R. S. Mo. 1929, nor did he suffer an 'injury' as defined in said section. Viewing the evidence in the most favorable light for the dependents, it could only be said that employee contracted a contagious disease during the course of his employment, and such diseases are specifically excluded from the law by Section 3305."

Plaintiff appealed to the circuit court (of St. Louis), where the finding of the commission was reversed and the cause remanded to the commission "with instructions to enter a finding and award to the dependent in accordance with this decree and opinion." The employer and insurer appealed from the finding and judgment of the trial court. It appears that more than $ 9000 compensation is in dispute, hence jurisdiction of the appeal is in this court.

Claimant's case is based on the contention that the employee died of psittacosis and that he contracted this disease in Detroit, Michigan, in the course of his employment, and that the disease of psittacosis is not excluded under subdivision (b) of Section 3305, Revised Statutes 1929, as amended, Laws 1931, page 382 (Mo. Stat. Ann., sec. 3305, p. 8238). On the other hand, the employer and insurer contend that there is no substantial evidence in the record to support a finding that the deceased employee contracted psittacosis in the course of his employment, and that the disease of psittacosis is excluded by said subdivision (b) of Section 3305. That is, that injury or death resulting from psittacosis is not compensable.

The record discloses that deceased was in the employ of the Ralston Purina Company as a sales agent and resided in St. Louis. His work consisted mainly in visiting large department stores in different parts of the country and conducting in these stores special demonstration sales of dog chow and certain sanitary dog products manufactured by his employer. In March, 1934, he was directed to go to Detroit, Michigan, and put on sales demonstrations at two Sears-Roebuck stores and at the J. L. Hudson Company store. Beginning on March 8th, he was at the pet shop of the Gratiot Street store of Sears-Roebuck in Detroit for three days; and then for the next three days he was at the Grand River Avenue store of Sears-Roebuck in Detroit; and then for three days at the Hudson store in Detroit. He left Detroit March 17th, and arrived at St. Louis March 18th, but left immediately for Nashville, Tennessee, and there became ill from what appeared to be a common cold, which was first felt March 22nd. By April 1st, he was quite ill and returned to St. Louis on that day and died April 4th. From a post-mortem the conducting physicians gave it as their opinion that death was caused by the disease of psittacosis.

From the evidence of experts it appears that psittacosis is a disease originating from parrots and birds of the parrot family, and is transmitted by a virus infection, and that the incubation period is from 5 to 15 days. Dr. Lawrence Thompson, witness for claimant, testified that it was not necessary to have actual contact with infected birds in order to become infected; that "the prevailing theory of the mode of infection, or the connection between birds and humans -- it has been demonstrated that the virus is present in the nasal discharge from the bird and also in the feces and will remain virable for some time, and it is usually accepted that it is the dust emanating from the cage as the bird moves around, which is inhaled by an individual -- transmission occurring that way.

"Q. Doctor, need a bird capable of transmitting this infection be actually diseased at the time, or show evidence of disease? A. No, it has been very definitely established again and again that many birds may have had the disease in a mild form and still have the virus in their feces and not appear ill at the time.

"Q. This disease does...