Becherer v. Curtiss-Wright Corporation

• Decision Date: 21 May 1946
• Docket Number: No. 26928.,26928.
• Citation: 194 S.W.2d 740
• Parties: BECHERER v. CURTISS-WRIGHT CORPORATION et al.
• Court: Missouri Court of Appeals

194 S.W.2d 740

BECHERER v. CURTISS-WRIGHT CORPORATION et al.

No. 26928.

St. Louis Court of Appeals. Missouri.

May 21, 1946.

Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Ruth A. Becherer, employee, opposed by the Curtiss-Wright Corporation, employer, and the Liberty Mutual Insurance Company, insurer. From a judgment affirming the Workmen's Compensation Commission's award denying compensation, claimant appeals.

Affirmed.

Henry P. Tudor and Strubinger, Tudor & Tombrink, all of St. Louis, for appellant.

Albert I. Graff and Malcolm I. Frank, both of St. Louis, for respondents.

SUTTON, Commissioner.

Plaintiff brought this action on December 29, 1943, to recover compensation under the workmen's compensation law, Mo. R.S.A. § 3689 et seq. Defendant Curtiss-Wright Corporation is the employer and defendant Liberty Mutual Insurance Company is the insurer. In her claim, filed with the workmen's compensation commission, plaintiff alleges that the accident occurred due to exposure while at work and subjected to breathing and absorbing foreign substances and dusts, causing coughing, choking spells, blood expectoration, loss of weight, temperature above normal, weakness and malaise, with bronchial system disturbance.

The commission found that plaintiff did not sustain an accident arising out of and in the course of her employment, and denied compensation. From the judgment of the circuit court affirming the award of the commission, plaintiff has appealed here.

According to plaintiff's testimony she was employed by defendant Curtiss-Wright Corporation on December 28, 1942. The place where she worked had windows in it, but some of the panes were missing. The work done there produced dust. There was constant drilling, and particles of aluminum always floated in the air, due to riveters pounding — compressed air. They put in an annodyzing plant, and brought in trucks. They had to dig fifteen feet for the big vats, and opened the big doors to get the trucks in and out hauling dirt and bringing sections in. This was around February, 1943. It was real cold. Plaintiff was in good health prior to her employment and passed the Curtiss-Wright physical examination before she was employed. While they were building this annodyzing plant it was dreadfully cold in the place. The employees were always freezing. Everything was coated with dust. The employees had to put a protective covering on their hands to keep the dust from grinding into the skin. There was nothing there to draw off the dust. Plaintiff started coughing after she was there a short time. The dust settled on the floors and men came there twice a day with brooms and pushed it up. The dust was blown off with air hoses that they used with rivet guns which blew it off, and it fell on the floor. Plaintiff developed a hacking cough in the beginning of 1943, which she first thought was a cold, but it kept hanging on. On September 30, 1943, she started coughing so bad — more like strangulation — the foreman sent her to first aid, where they checked her over and told her to go home and go to bed. At home she had spasms of coughing and started spitting little flecks of blood. She went to bed and stayed there several weeks. Around November 10th she returned to work after being off about five weeks. She lasted about three weeks, and then the general supervisor in the plant told her to go home and stay there until she got all right. Since then she still has the hacking cough, can't seem to get rid of it. When there is dust in the air it causes that awful choking again. When it gets cold she chokes and the same in any place where the air is stuffy. She spit blood for several weeks. Since these occurrences she has not been sufficiently free from the cough to work regularly. If she lies on her back it makes her cough. She has to be propped up with three pillows to sleep.

There were four hundred other employees working in plaintiff's department, thirty in her section, and they had heat in there. There was a tarpaulin partition separating the department from where the digging was going on.

Dr. L. F. Hayden, at the request of plaintiff, examined her on July 10, 1944. He testified that his diagnosis was chronic bronchitis with possible bronchial fibrosis.

Dr. Edward N. Snyder testified that plaintiff called on him for examination on April 5, 1944; that he diagnosed her condition as severe bronchitis with secondary infection; that it was his opinion the conditions under which she worked were responsible for her cough; that he treated her until some time in July, 1944.

Paul Smith, department manager of Curtiss-Wright Corporation, testified, for defendants, that plaintiff was an assembler and riveter on certain sections of the aluminum sheet metal assembly and also did drilling, which consisted in enlarging the hole to the diameter of the rivet to be inserted; that there were no minute particles of aluminum in the air. The witness identified and showed a box of aluminum shavings taken from a large can that shavings were dumped into. The witness also identified and showed the substance obtained from the drilling. He testified further that he had received no direct complaints from plaintiff or from the foreman as to her case, and that this was the first claim that had been filed for aluminum poisoning; that they were excavating next to the section where plaintiff worked and that trucks came in and out through the electrically operated doors, about seven loads a day in and out; that these doors were open on such occasions from three to five minutes; that the building was so designed that the external temperature was offset by a blower to set up a current of hot air, and that they tried to maintain a sixty-eight to seventy degree temperature in there; that the floors were swept twice a day, and a substance impregnated with oil was used to keep the dust down to a minimum.

Dr. Charles W. Miller, a chest and lung specialist, testified for defendants that there was nothing wrong with claimant's lungs and that all laboratory tests showed negative; that aluminum dust was not considered an industrial hazard; that there was no evidence of tuberculosis, and that there is no such thing as aluminum poisoning; that an X-ray picture taken by him and produced at the hearing was negative of any active lung disease; that it was hazardous to make a diagnosis of chronic bronchitis from an X-ray picture, but that from an examination of her chest he found no evidence of chronic bronchitis; that there was no fibrosis in the picture; that there were markings in the picture slightly...