Bender v. Midwest Pipe & Supply Co.

• Decision Date: 07 March 1933
• Docket Number: No. 21920.,21920.
• Citation: 57 S.W.2d 707
• Parties: BENDER v. MIDWEST PIPE & SUPPLY CO. et al.
• Court: Missouri Court of Appeals

57 S.W.2d 707

BENDER v. MIDWEST PIPE & SUPPLY CO. et al.

No. 21920.

St. Louis Court of Appeals. Missouri.

March 7, 1933.

Rehearing Denied March 21, 1933.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Lena Bender for the death of William Bender, employee, opposed by the Midwest Pipe & Supply Company and the American Mutual Liability Insurance Company. An award denying compensation was reversed by the circuit court, and the cause remanded, and employer and insurance carrier appeal.

Judgment of circuit court reversed, and cause remanded, with directions.

Wm. R. Schneider and Joseph J. Cooney, both of St. Louis, for appellants.

N. Murry Edwards, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action for compensation under the Workmen's Compensation Act. Plaintiff is the widow of William Bender, who, at the time of his death, was an employee of the defendant Midwest Pipe & Supply Company, and was insured under the Compensation Act by defendant American Mutual Liability Insurance Company. Plaintiff claims that her husband, on January 25, 1930, while working at the Midwest Pipe & Supply Company's plant in St. Louis, was overcome by the inhalation of sulphur dioxide gas escaping from open salamanders in which coke was being burned to heat the plant, resulting in his death three days thereafter; whereas defendants claim that his death did not result from the inhalation of gas, but resulted from a diseased condition arising from causes unrelated to his employment.

The commission found that the death of the deceased was not the result of accident arising out of and in the course of his employment, and denied compensation. The circuit court, on appeal by plaintiff from the award of the commission, reversed the award and remanded the cause, with directions to the commission to award plaintiff compensation in the sum of $20 per week for a period of 300 weeks. From this judgment defendants have appealed to this court.

Plaintiff upholds the judgment of the circuit court, reversing the award of the commission, on the grounds (1) that there was insufficient competent evidence in the record to warrant the commission in making the award denying compensation, and (2) that the commission made no finding of facts as required by the Compensation Act, but that the finding made was merely a conclusion of law, and therefore insufficient to support the award; whereas defendants say that the award of the commission was based upon a finding of facts adequately supported by competent evidence, and that therefore the reversal of the award by the circuit court was unauthorized.

The statute provides that the award of the commission, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue, shall be filed with a record of the proceedings. It further provides that upon appeal the findings of fact made by the commission within its powers shall be conclusive and binding, and that the court, on appeal, shall review only questions of law, and may modify, reverse, remand for rehearing, or set aside, the award upon any of the following grounds, and no other: (1) That the commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the commission do not support the award; and (4) that there was not sufficient competent evidence in the record to warrant the making of the award. Sections 3339 and 3342, R. S. 1929 (Mo. St. Ann. §§ 3339, 3342).

The record shows that the death of the deceased was caused by an attack of lobar pneumonia with secondary pneumococcic meningitis. There is no dispute as to this fact. Plaintiff contends that the attack of pneumonia and meningitis, which caused the death of the deceased, resulted from the inhalation of gas from the salamanders in the plant where he worked, and that the evidence conclusively so shows; whereas the defendants contend that, under the evidence, whether or not the attack of pneumonia and meningitis resulted from the inhalation of gas was for the commission to say, and that the commission's finding is conclusive and binding.

Frank E. Seibert testified for plaintiff that he was employed by the Midwest Pipe & Supply Company in the welding department as a welder; that the last day Bender worked for the company was on Saturday, January 25, 1930; that he and Bender were working together laying out pipe; that he had to have a flange, and sent Bender up the ladder to have the flange bore down on the lathe to make it bigger; that Bender came back and said the belt was off up there; that Bender went up there and put the belt on and bore the flange, and then came back; that when he came back he said that he put the belt on and "got gassed or something like to choke him"; that he said, "If I could only vomit it up I would feel all right"; that he walked outside to get some air, and, when he came back, he said he did not feel any better; that this occurred around 11 o'clock; that he told Bender to sit down, and wait until the whistle blew; that they only worked a half day on Saturday; that the plant around where they worked was heated by open salamanders in which coke was used for fuel; that the fumes from the salamanders go up to the ceiling; that there was no more gas there that morning than at any other time; that the last time he saw Bender was about twenty minutes after twelve; that before Bender went to work that morning he looked the same as he always looked, healthy; that during the time they used the salamanders he always observed some fumes, a little bit from them; that on January 25th the fumes were the same as always; that there were large doors that were opened to let trucks into the plant; that six or seven men worked in that department that day; that none of them complained of the fumes or smoke; that there were other men working up there where Bender worked; that he had worked at the plant about eight years; that he did not know of any man having been overcome by gas or fumes during the time that he worked at the plant; that the only way one could tell whether there was gas coming from a salamander was by standing close to it, and it would kind of choke one; that he never went up on the ladder that goes up towards the ceiling; that he guessed the fumes from the salamander go up; that there were no fans that he knew of to carry off the gas fumes.

John Hall testified for plaintiff that he worked for the Midwest Company for about six years; that he worked in the same part of the building where the lathes are; that Bender worked there with him about eighteen months; that on Saturday, January 25, 1930, Bender came up to the lathes; that Bender wanted to work on the lathes to turn down a flange; that he came up there and started the machine, and it would not go; that he got a stepladder and wrench and went up the stepladder to tighten a loose nut on a bolt; that he was up there about ten minutes; that when he came down off the ladder he put the wrench down on the table and went ahead and worked on his lathe about fifteen minutes; that he noticed he had a funny expression on his face—pale around the mouth; that he asked him what was the matter, and he said, "I feel like dying"; that when he was on the ladder his head was about eighteen inches from the ceiling; that when he first came to work on the lathe he seemed to be in good spirits; that he worked on the ladder about eight or nine minutes; that he did not notice any more gas or fumes that morning, any more than he did any other morning; that he had on occasions gone up the ladder while the salamanders were burning, but did not notice any difference up there; that the closest salamander to the lathe Bender was working on was about ten feet away; that he placed the ladder about twelve feet from the salamander; that there were some doors there; that during the six years he had worked at the plant he had never been overcome by fumes and never had seen any one else overcome; that he did not notice any difference in the smell around the salamanders on January 25, 1930, from any other time during the six years he worked there; that it was just the same.

Russell Rader, an employee of the Midwest Company, testified for plaintiff that he saw Bender at the plant about 12:20 Saturday afternoon; that he was sitting down on a box; that he said he was sick; that he looked like a man with blind staggers; that he looked like a dead person; that in fact he looked like he was going to faint; that he walked out trembling and sick.

William A. Miller, Jr., testified that he was employed by the Midwest Company as helper on a vanstone machine; that on January 25, 1930, he saw William Bender about 12:30 p. m. in the locker room; that Bender said, "I don't feel well. I feel dizzy."

Several other witnesses, who had been in the employ of defendant Midwest Pipe & Supply Company for a number of years, testified that the condition with reference to fumes at the plant was the ordinary condition existing there during the time of their employment, and that none of the employees, including those who worked on ladders making repairs to machinery, was ever overcome by the fumes.

Plaintiff testified as follows: "My husband worked for the Midwest Pipe and Supply Company for a little over a year before he died. He usually left for work around seven in the morning, and on Saturdays he worked a half day getting home around two o'clock. He was not ailing on January 25, 1930, when he left home. Up to that time his health had been all right. When he came home that Saturday at about two o'clock p. m., January 25, 1930, I noticed he had a picture of death on him. His eyes were popping out of his head. He couldn't brace up. His shoulders were almost crouched down to his waistline. He couldn't open the door. I had to open it up and let him in. ...