Bolosino v. Laclede-Christy Clay Products Co.

• Decision Date: 07 February 1939
• Docket Number: No. 25027.,25027.
• Citation: 124 S.W.2d 581
• Parties: BOLOSINO v. LACLEDE-CHRISTY CLAY PRODUCTS CO. et al.
• Court: Missouri Court of Appeals

124 S.W.2d 581

BOLOSINO v. LACLEDE-CHRISTY CLAY PRODUCTS CO. et al.

No. 25027.

St. Louis Court of Appeals. Missouri.

February 7, 1939.

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

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Act by Antonio Bolosino, employee, opposed by Laclede-Christy Clay Products Company, employer, and the American Liability Insurance Company, insurer. From a judgment reversing an award of the Workmen's Compensation Commission denying compensation, the employer and insurer appeal.

Judgment reversed and cause remanded with directions.

Luke & Cunliff, of St. Louis, for appellants.

I. H. & J. F. Gamble, of St. Louis, for respondent.

BENNICK, Commissioner.

This is a proceeding under the workmen's compensation law, Secs. 3299-3376, R.S.Mo.1929, Mo.St.Ann. §§ 3299-3376, pp. 8229-8294, the appeal being by the employer and insurer from the judgment of the circuit court reversing an award in their favor upon the stated ground that the facts found by the commission did not support the award.

On April 16, 1937, the employee, Antonio Bolosino, filed his claim for compensation for an injury identified in his claim as "pneumoconiosis, broncho-pulmonary fibrosis and silico tuberculosis", and alleged to have resulted from "working and breathing in a dust-laden atmosphere" on the premises of the employer, Laclede-Christy Clay Products Company. In the course of his claim he specifically set up that he had been "unable to work since the middle of July, 1936", and then, in an attempt to avoid the bar of the six-months' statute of limitation, Sec. 3337, R.S.Mo. 1929, Mo.St.Ann. § 3337, p. 8269, alleged that the condition for which he sought to be compensated "was discovered and ascertained March 26, 1937", which would have been only three weeks prior to the time of the filing of the claim.

Save for two intervals, one of six months and another of a year, Bolosino was continuously in the service of the employer from 1905 until July, 1936, when he finally quit work because of illness. For the greater part of that period he worked inside the plant, being employed in connection with the mixing of the materials that went into the manufacture of the employer's fire clay products.

It was shown that the grinding and crushing of the rocks and clay in the mills provided for that purpose produced a considerable amount of dust, which, according to Bolosino, would sometimes be so thick around him that he could not see inside the machine upon which he was employed.

Bolosino first laid off from work in the early part of May, 1936, because of pain and discomfort he was having in his chest and lungs. After a few weeks at home he returned to work, but finding that his illness continued, he left his job in July of that year, and since that time has not been able to engage in work of any character.

At the hearing before the commission Bolosino attempted to show that the lung condition from which he was concededly suffering constituted an occupational disease within the meaning of Section 3305 (b), R.S.Mo.1929, Mo.St.Ann. § 3305(b), p. 8238, in that it was the result of his long continued breathing of dust containing a silica content. The evidence for the employer and insurer was to the contrary with respect to his being afflicted with an occupational disease, and so the claim was submitted to the commission, which thereafter entered an award denying compensation upon an express finding that "the condition complained of was not the result of an occupational disease arising out of and in the course of his employment".

From the award so entered, Bolosino took his appeal to the circuit court, which, as we have already indicated, reversed the commission upon the ground that the facts found by the commission did not support the award. Judgment was rendered accordingly, and the appeal of the employer and insurer to this court has followed in the usual course.

The employer and insurer argue that the court erred — as indeed it did — in reversing the award upon the ground that the facts found by the commission did not support the award. As we have already pointed out, the essential fact found by the commission was that "the condition complained of was not the result of an occupational disease arising out of and in the course of his [Bolosino's] employment", and not only did such finding support the award denying compensation, but in truth it could have supported no...