Bolen v. Wallace, 47794

• Decision Date: 11 July 1960
• Docket Number: No. 47794,No. 1,47794,1
• Citation: 338 S.W.2d 73
• Parties: Christina Evanetta BOLEN et al., Respondents, v. Clyde M. WALLACE, d/b/a Commercial Cartage Company et al., Appellants
• Court: Missouri Supreme Court

Page 73

338 S.W.2d 73

Christina Evanetta BOLEN et al., Respondents, v. Clyde M. WALLACE, d/b/a Commercial Cartage Company et al., Appellants.

No. 47794.

Supreme Court of Missouri, Division No. 1.

July 11, 1960.

Motion for Rehearing or to Transfer to Court en Banc Denied

Sept. 12, 1960.

Joseph B. Bott, John J. Alder, Alder & Morrison, Kansas City, for appellants.

Homer R. Hines, Thomas E. Hudson, Hudson, Cavanaugh & Fox, Kansas City, for respondent.

HOLMAN, Commissioner.

This is a proceeding under the Missouri Workmen's Compensation Law. Section 287.010 et seq. (All statutory references herein are to RSMo 1949, V.A.M.S.) The employer, Clyde M. Wallace, d/b/a Commercial Cartage Company, and insurer, Iowa National Mutual Insurance Company, have appealed from the judgment of the circuit court affirming an award of the Industrial Commission (Chairman Rose dissenting) in favor of the dependents (widow and two children) of the deceased employee, Woodrow Wilson Bolen. The award was in the total sum of $12,400.

Deceased was employed as a truck driver for Commercial Cartage Company. Commercial had a lease arrangement with A. M. Castle & Company whereby it furnished trucks and drivers to Castle for its use in making deliveries, etc. One the date of the alleged injury deceased was operating a truck that had been assigned to Castle. While so assigned the drivers of trucks furnished by Commercial reported to and received directions from Harold D. Sickles, plant manager for Castle. The amended claim named both Commercial and Castle as employers but the award found that Mr. Bolen was an employee of Commercial and not of Castle and, since claimants did not appeal, Castle has no further interest in the case.

The accident is alleged to have occurred at about 8:30 a. m. on February 25, 1957. There was no eyewitness who testified, and no evidence of any res gestae declarations by the employee. Claimants endeavored to prove the accident by the testimony of the widow, by statements made by deceased to office employees of his employer, and to various doctors as disclosed by medical records. All evidence concerning said statements was admitted over the objection that they were hearsay. Claimants also relied upon an alleged admission in the employer's report of injury (filed with the Industrial Commission) which, apparently quoting deceased, recited the following: 'Describe in full how injury occurred: I was unloading steel and Standard uses an overhead crane to pick up the bundle. I was guiding the bundle through the door and it slipped out of my hand hitting me in the stomach.'

Mrs. Bolen testified that on the date of accident, and for several years prior thereto, her husband had been in excellent health. On the date in question she stated that he came home an hour or two early and was holding his hand over his lower right abdomen apparently in pain; that she observed a discoloration of the skin in that area, 'a slight yellow color, like a bruise forming'; that upon the evening of the 25th she observed for the first time that her husband was passing blood in his urine.

There were three employees in the office of Commercial Cartgage, C. M. Wallace, son of the owner, Charles A. Byrd, and Mrs. Priscilla Long. Mrs. Long had a list of doctors to whom she sent injured employees for treatment and it was her duty to also prepare the report of injury. Mr. Bolen went to the office on the morning of the 26th and was sent to Drs. Haynes and Centner for examination and treatment. On that day or the next Mrs. Long made out the report of injury heretofore referred to. Mr. Byrd testified that he was present when that was done and that it was prepared by Mrs. Long and Woodrow Bolen; that 'according to custom, the employee stands there and tells Priscilla Long what to write and she just types it out.' Over objection Mr. Byrd was permitted to testify that on the 26th deceased told him that he had been injured. He said that he was 'making a delivery at Standard Steel Works and a bundle slipped and hit him in the abdomen.' Also, C. M. Wallace testified over objection that Bolen came to the office on the 26th and reported that he had been injured and wouldn't be able to work; that he had been struck in the stomach by some steel.

The records of Drs. Haynes and Centner recited that Bolen had been 'unloading steel and steel slipped and struck patient in side.' These doctors saw Bolen in their office almost every day from February 26 to March 8. Throughout that period examinations revealed that he was passing considerable blood in his urine. The record discloses a diagnosis of 'contusion of abdomen over bladder and contusion of bladder wall.' The evidence indicates that neither of the doctors found any swelling or bruised condition in the lower abdomen, and Dr. Centner stated that the foregoing diagnosis was based on the subjective symptoms only. When the condition of blood in the patient's urine had not cleared up by March 8, Dr. Centner decided that he should be examined by a competent urologist and referred Mr. Bolen to Dr. Robert H. Owens and Dr. James F. O'Malley.

Dr. Owens, after consideration of the history, caused Mr. Bolen to enter St. Mary's Hospital where, on March 9, a diagnostic cystoscopy was performed which revealed a bladder tumor. A biopsy resulted in a diagnosis that the patient had a malignant tumor of the bladder described as a squamous-type cancer. As a result of that finding Dr. Owens advised immediate radical surgery for the removal of the tumor. That operation was performed on March 13. Near the conclusion of the operation Mr. Bolen developed a cardiac arrest and, although emergency measures were taken which kept him alive for a time, he died about one hour later. Additional medical testimony will be hereinafter stated in connection with our discussion of the point which we consider to be decisive of this case.

In order to be entitled to an award in this case the burden was upon the claimants to prove (1) that deceased suffered an accidental injury arising out of and in the course of his employment, and (2) that his death resulted from that injury. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Kerby v. Missouri State Highway Commission, Mo.App., 238 S.W.2d 464.

The Industrial Commission found 'that the employee herein, Woodrow Wilson Bolen, sustained an accident on February 25, 1957, arising out of and in the course of his employment with Clyde M. Wallace, d/b/a Commercial Cartage Company, and that as a result of said accident he sustained injuries to his urinary bladder and aggravation of a pre-existing squamous cell carcinoma thereof. We further find that as a result of said accident it became necessary to perform surgery to cure and relieve the employee of said injury to the urinary bladder and aggravation of the pre-existing squamous cell carcinoma; and, further, that during such surgery and as a result thereof, the employee died of cardiac arrest. We find and conclude, therefore, that the accident of February 25, 1957, caused, contributed to and produced the employee's death on March 13, 1957.'

'In reviewing a compensation case we have the duty to determine whether the Commission's award is supported by competent and substantial evidence upon the whole record. Sec. 22, Art. V, Const, of Mo.1945, V.A.M.S. This court has said that 'This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all of the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Of course, the reviewing court should adhere to the rule of deference to findings, involving credibility of witnesses, made by those before whom the witnesses gave oral testimony.' Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55, 62.

'In determining whether the Commission could have reasonably made its findings, and reached the conclusion it did reach, upon consideration of all the evidence before it, we view the record in a light most favorable to the findings of the Commission, consider the favorable inferences which the Commission had a right to draw from the evidence before it, and then determine whether the Commission's findings, even if supported by competent and substantial evidence, are contrary to the overwhelming weight of evidence in the whole record. Thacker v. Massman Const. Co., Mo.Sup., 247 S.W.2d 623, 627.' Francis v. Sam Miller Motors, Mo.Sup., 282 S.W.2d 5, 11-12.

Upon this appeal it is the contention of appellants that the award is not supported by sufficient competent evidence. Specifically, it is said that (1) there is no competent evidence that deceased sustained an accidental injury arising out of and in the course of his employment, and (2) there was not sufficient evidence to support a finding that his death resulted from said alleged injury. Since we have reached the conclusion that the last-mentioned contention...