Bergman v. Board of Trustees of Firemen's Retirement System of St. Louis, 52739
| Decision Date | 11 March 1968 |
| Docket Number | No. 2,No. 52739,52739,2 |
| Citation | 425 S.W.2d 143 |
| Parties | Esther M. BERGMAN, Appellant, v. BOARD OF TRUSTEES OF FIREMEN'S RETIREMENT SYSTEM OF ST. LOUIS, Missouri, Respondent |
| Court | Missouri Supreme Court |
Wm. G. O'Donnell, Abraham Davis, St. Louis, for appellant.
Thomas F. McGuire, City Counselor, Aubrey B. Hamilton, Assoc. City Counselor, St. Louis, for respondent.
STOCKARD, Commissioner.
This is an appeal from the judgment of the Circuit Court of the City of St. Louis wherein it 'dismissed' the petition of Esther M. Bergman, filed pursuant to the Administrative Procedure Act, Chapter 536, RSMo 1959, V.A.M.S., for review of the finding and decision of the Board of Trustees of The Firemen's Retirement System of St. Louis, Missouri.
Appellant's husband Walter Bergman, died on October 18, 1956, while a member (Fire Marshal) in good standing of the St. Louis Fire Department. As his unremarried widow, appellant has been paid and is receiving a pension from the Board of Trustees. She contends that her husband was 'killed or fatally injured in the line of duty' within the meaning of Section 32 of Ordinance 48174 of the City of St Louis, and for that reason she is, and has been since his death, entitled to a larger pension. The accrued amount to which she claims she is entitled at the time of this appeal, over and above the amount previously paid to her, exceeds $15,000.
On October 14, 1956, a Sunday, a fire occurred in a building at 3618 Laclede, St. Louis, owned by the Rothlan Corporation, which manufactured or processed chemicals. In the building were numerous chemicals both organic and inorganic, some of which were toxic. One of these toxic chemicals was ortho nitroaniline. The fire was not extensive and was soon extinguished, but in the building and in the area there was an odor of chemical fumes. Marshal Bergman arrived at the scene after the fire was extinguished. He was seen outside the building, and he was also seen, apparently inside the building, 'sniffing the bottles' of chemicals and reading the labels on them. When he returned home he told his wife he was 'feeling sick because it was a chemical fire' and that he would not be able to eat. On Monday he reported for work, and worked until Thursday when he went to see Dr. Otis D. Seabaugh, his family doctor. During the week while at work he had complained that his stomach bothered him, that he felt sick, his arm and chest hurt, and that he was short of breath. Dr. Seabaugh advised him to go to the hospital, but he returned to work. Later that day he was taken home and then by ambulance to the hospital where he died within ten minutes after arrival. The cause of his death was a coronary thrombosis.
Marshal Bergman had a history of a heart condition. In 1949 he had a 'mild attack of coronary thrombosis,' and in 1951 it was determined that he had a 'heart insufficiency.'
Dr. Seabaugh testified that anyone who has a heart condition is advised to live within his heart's capacity to function, and he should do nothing that would draw stress upon organs of respiration. He further stated that 'if you inhaled a toxin in the lungs and you get a little impairment of the pulmonary circulation, that could be undue strain on his heart muscles and the after effects from the toxin could act on the heart.' He stated that he could not 'think of a case' of a thrombosis being caused by toxic poisoning, but 'it can be a contributing factor,' and that in his opinion inhaling of toxic chemicals 'was a contributing cause' of Marshal Bergman's death.
Dr. R. Emmett Kelly, who was physician and medical director of Monsanto Chemical Company, testified for the Board of Trustees. He stated that ortho nitroaniline is an organic compound capable of uniting with the hemoglobin of the blood and causing what is technically called met hemoglobin. The chemical is capable of being absorbed by the body when taken by mouth or after dust or fumes are inhaled, and when dissolved it can pass through unbroken skin. When it unites with the hemoglobin it destroys the oxygen carrying power of the red corpuscles. The person affected develops a dusky color and then a blueness. Dr. Kelly said that the chemical does not have a 'particularly pungent' odor and would have no effect on the respiratory system, but could cause choking if inhaled in large quantities. He also stated that he had not had any experience with the chemical causing throat irritation when inhaled, and that individuals have inhaled enough 'to be bluish before they know it.' When absorbed through the skin it 'can cause stomach illness and even death' but it would not be absorbed by picking up a jar and smelling it. Also, smelling of the chemical would 'not usually' cause 'nausea or shooting pains.' It was Dr. Kelly's opinion that in the absence of blueness, the inhalation of the chemical would not have any effect on the heart, and that ortho nitroaniline could not cause the formation of a thrombus, nor would it have any connection with a coronary thrombosis, and the fact that a person inhaled fumes from this chemical one day would not result in ill effects three or four days later. He said that exposure to the chemical does not have a permanent effect.
Dr. Julius Elson, a heart specialist, testified that he knew of no chemical fumes which if breathed by an individual would cause coronary thrombosis, and that he could not see any possible connection between breathing chemical fumes and the formation of a thrombus. He also testified that 'no one has ever shown' that deprivation of oxygen from the blood stream can precipitate a thrombosis in an artery, and that he knew of no theory that toxicity precipitated a coronary thrombosis.
The Board of Trustees made the following findings of fact:
'(1) That Walter P. Bergman, Fire Marshal of the City of St. Louis, was on active duty on October 18, 1956;
'(2) That a fire occurred at 8:59 A.M. on October 14, 1956, at 3618 Laclede Ave., St. Louis, Missouri;
'(3) That Chief Bergman appeared at the scene of the fire on October 14, 1956, at approximately 10:45 A.M.;
'(4) That Chief Bergman investigated conditions at the scene after the fire;
'(5) That Chief Bergman was stricken with a heart attack on October 18, 1956, and was hospitalized and died the same date, October 18, 1956.
'(6) That the medical records of Chief Bergman on file in the office of the Retirement System and the Office of the Chief of the Fire Department, reflect treatment for a heart condition on July 7th, 1951, and in 1949;
'(7) That there is no evidence in the record which shows unusual exertion during his investigation on October 14, 1956;
'(8) That there is no evidence sufficient to cause the Board to believe that chemical fumes were inhaled by Chief Bergman in any amount sufficient to cause death by adverse effect on his heart.'
The following conclusions of law were adopted by the Board.
1. The Board finds that there is no causal connection between the inhalation of fumes and death;
2. The board finds that Walter P. Bergman was not killed or fatally injured in the line of duty.
On this appeal appellant contends that the findings of fact and conclusions of law are 'unsupported by competent and substantial evidence upon the whole record.' She also contends that the trial court should have made its own findings of fact because only one member of the Board was present at all of the...
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