Brewer v. Lime & Portland Cement Co.

• Citation: 25 S.W.2d 1086
• Decision Date: 17 February 1930
• Docket Number: No. 4689.,4689.
• Court: Court of Appeal of Missouri (US)
• Parties: OLLIE BREWER, RESPONDENT, v. ASH GROVE LIME & PORTLAND CEMENT COMPANY, A CORPORATION, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

25 S.W.2d 1086

OLLIE BREWER, RESPONDENT, v. ASH GROVE LIME & PORTLAND CEMENT COMPANY, A CORPORATION, APPELLANT.^*

No. 4689.

Springfield Court of Appeals. Missouri.

Opinion filed February 17, 1930.

Appeal from the circuit court of Greene county, Division Number One. — Hon. John Schmook, Judge.

AFFIRMED.

Frank B. Williams and F.B. Holland for appellant.

(1) The law does not raise a presumption that an injury received during employment arose by an accident. Karlson v. Rosenfeld (N.J.), 137 Atl. 95; Smith v. Levis-Zukoski Mer. Co., 14 S.W. (2d) 472 l.c. (2) Where a plaintiff claims that he was disabled by an accident, he carries the burden of showing that his injury (or death) was due to an accident. Bennett v. Standard Accident Insurance Co., 209 Mo. App. 95. (a) This burden is not sustained by claimant if death could have resulted either from injury or disease. Hawkins v. Bonner County, 271 Pac. 327; 9 Compensation Review, p. 19. (b) Nor by proof equally as consistent with accident as with no accident. Standard Oil Co. v. Indus. Com., 153 N.E. 660. (c) Nor is this burden sustained on a choice between two views equally compatible with the evidence, but must be based on facts established by evidence, fairly tending to prove said facts. Ideal Fuel Company v. Indus. Comm. (Ill.), 131 N.E. 649; Eidelweiss Gardens v. Indus. Comm. (Ill.), 125 N.E. 260; Peterson & Co. v. Indus. Comm. (Ill.), 117 N.E. 1033. (3) The burden is upon the applicant to establish her claim by a preponderance of the competent evidence and show that death was caused by an accidental injury arising out of the employment, and every other fact necessary to a legal award. Equitable Coal Co. v. Indus. Comm. (Ill.), 156 N.E. 360, 361; Adams v. Superior Oil Corp. (Okla.), 249 Pac. 700; Warlop v. Western Coal Min. Co., 24 Fed. (2) 926; Ayer & Lord Tie Co. v. Indus. Comm. (Ill.), 155 N.E. 292; Crews v. Moseley Bros. (Va.), 138 S.E. 494; Smith v. Levis-Zukoski Merc. Co. (Mo. App.), 14 S.W. (2) 470; Hawkins v. Bonner County (Idaho), 271 Pac. 327; Missouri Workmen's Compensation Act, Laws 1927, p. 492, sec. 3; Laws 1927, p. 495, sec. 7, sub-div. (b); 1 Schneider, Wk. Comp. Law, p. 1443. (a) In making such proof the claimant must produce some legal evidence, and cannot rely exclusively on hearsay testimony (or, it would seem, upon mere expressions of medical opinion not based on legal evidence) or on other incompetent evidence. 2 Schneider, Wk. Comp. Law, p. 1442; Matter of Belcher v. Carthage Mach. Co. (N.Y.), 120 N.E. 735; Zion Co-op. Mer. Inst. v. Indus. Comm. (Utah), 262 Pac. 99; Garfield Smelting Co. v. Indus. Comm. (Utah), 178 Pac. 57; Rockefeller v. Indus. Comm. (Utah), 197 Pac. 1038. (b) Claimant has failed to prove by competent evidence, that her deceased husband received an accidental personal injury, in the course of his employment, which caused his death, in that she has failed to produce any evidence of objective symptoms of violence to the physical structure of the body. This the Missouri Workmen's Compensation Act imperatively requires as the basis of an award. Missouri Workmen's Compensation Act, Laws 1927, p. 492, sec. 3, and pp. 495 and 496, sec. 7, sub-div. (b). (4) Actual physical injury, internal or external, must be shown in a proper way (e.g. by competent evidence) before an inference legally may be drawn that the final result (in respect to which compensation is claimed) is attributable to an "injury" originating in the employment. Southern Casualty Co. v. Flores (Tex.), 1 S.W. (2) 260; Missouri Workmen's Compensation Act, Laws 1927, pp. 495-496, sec. 7, sub-div. (b). (5) It is not allowable to build one presumption upon another and thus make a cause of action; one presumption cannot stand as a postulate and the other as an inference thereupon; a second inference cannot be rested on a first inference. State ex rel. v. Cox (Mo.), 250 S.W. 551, and cases cited, pp. 551-552; State v. Capps (Mo.), 278 S.W. 699; Layton v. Chinberg (Mo.), 282 S.W. 436; State v. Trimble (Mo.), 12 S.W. (2) 735; McCain v. Trenton Gas & Elec. Co. (Mo. App.), 15 S.W. (2) 974. (6) A theory cannot be said to be established by circumstantial evidence unless the facts relied on are of such a nature and are so related to each other that it is the only conclusion that can be drawn from them. Ohio Bldg. Safety Vault Co. v. Indus. Board (Ill.), 115 N.E. 149, Headnote (2). (7) In proceedings under Workmen's Compensation Act, findings of essential facts must be based on competent evidence otherwise there is error at law. Johnson v. State Highway Comm. (Me.), 134 Atl. 564; Workmen's Compensation Act, Laws 1927, p. 513, sec. 44, sub-div. 4; McDevitt v. Checker Cab Co. (Pa.), 136 Atl. 230; Smith v. Levis-Zukoski Mer. Co. (Mo. App.), 14 S.W. (2) 470. (8) The Commission must weigh the evidence and is not justified in finding for a party merely because the evidence is undisputed. Ayer & Lord Tie Co. v. Indus Comm. (Ill.), 155 N.E. 292. (9) An award under the Workmen's Compensation Act cannot rest upon speculation, conjecture, surmise, or presumption. St. Louis Smelting & Ref. Co. v. Indus. Comm. (Ill.), 131 N.E. 617; Swift & Co. v. Indus. Comm. (Ill.). 134 N.E. 9; Sp. Dist. Coal Min. Co. v. Indus. Comm. (Ill.), 135 N.E. 790; Perkinson v. Indus. Comm. (Ill.), 137 N.E. 398; Nestor v. Pabst Brewing Co., 181 N.Y.S. 477; Slack v. Percival Co. (Iowa), 199 N.W. 323; Mailmon v. Record Fndry & Mach. Co. (Me.), 160 Atl. 606; Allen v. Robert Gage Coal Co. (Mich.), 188 N.W. 388; Pace v. North Dakota W. Com. Bureau (N.D.), 201 N.W. 348; Beckkedel Lbr. Co. v. Indus. Comm. (Wis.), 169 N.W. 561; Widell Co. v. Indus. Comm. (Wis.), 192 N.W. 449; Decatur Cons. Co. v. Indus. Comm. (Ill.), 129 N.E. 738; Taylor's Case (Me.), 139 Atl. 478. (10) The Workmen's Compensation Act contemplates unequivocal findings of fact by the Commission. Cotter v. Valentine Coal Co. (Mo. App.), 14 S.W. (2) 662.

Fred W. Barrett, Paul Barrett and O.J. Page for respondent.

(1) On appeal from an award made by Workmen's Compensation Commission, the court will not determine the facts found by the Commission, hence its finding will be sustained if there is any competent evidence to support it, and its determination on conflicting evidence is final and conclusive. Ann. Supp., R.S. 1927, p. 918, sec. 43; Workmen's Compensation Acts, 40 Cyc., p. 122, sec. 127; Cotter v. Valentine Coal Co. (Mo. App.), 14 S.W. (2d) 660; Kinder v. Hannibal Car, Wheel & Foun. Co. (Mo. App.), 18 S.W. (2d) 91; Jarnagin v. Wm. R. Warner & Co. et al. (Mo. App.), 18 S.W. (2d) 129; Smith v. Zukoski Mere. Co., 14 S.W. (2d) 470; Lewis v. Industrial Comm. (Wis.), 190 N.W. 101, 25 A.L.R. l.c. 142; Twin Peak Can Co. v. Industrial Comm. (Utah), 196 Pac. 853; Southern Surety Co. v. Childers (Okla.), 20 A. Pac. 927, 25 A.L.R. 372; Milwaukee Coke & Gas Co. v. Ind. Comm. (Wis.), 151 N.W. 245. (2) There was sufficient competent evidence introduced to sustain the findings made by the Commission. The findings are not based on presumptions. Smith v. Lewis-Zukoski Merc. Co., 14 S.W. (2d) 470; Kelley v. Higginsville, 185 Mo. App. 55, 171 S.W. 966; Lofty v. Lynch-McDonald Const. Co., 215 Mo. App. 163, 256 S.W. 83; 1 Peterson, Haines & Webster, Legal Medicine Toxicology, pp. 261-282. The fact that electricity was the cause of death may like most other facts be proved by circumstantial evidence. Curtis, Law of Electricity, p. 733; Indianapolis L.N.H. Co. v. Dalby, 47 Ind. App. 405, 92 N.E. 739; Lofty v. Lynch-McDonald Const. Co., 215 Mo. App. 163, 256 S.W. 83; Kelley v. Higginsville, 185 Mo. App. 55, 171 S.W. 966. The inference that death resulted from electricity may be strengthened if there is evidence of a burn. Curtis, Law of Electricity, pp. 933-934. One may be killed by electricity even though there are no burns or scars on the body. Lofty v. Lynch-McDonald Const. Co., 215 Mo. App. 163, 256 S.W. 93; Kelley v. Higginsville, 185 Mo. App. 55, 171 S.W. 966. One can be killed by 2300 volts of electricity. Morrow v. Gas & Electric Service Co., 286 S.W. 106; Vessels v. Kansas City Light & Power Co., 219 S.W. 80. "Where a person is found dead in proximity to an electrical appliance, contact with which is capable of producing death, and no cause for his death other than the electric current is presented, the jury may be authorized to find that death was caused by an electric current passing from the appliance." Curtis, Law of Electricity, p. 933; Stabb v. Rocky Mtn. Bell Tel. Co., 23 Idaho, 314; Indianapolis L. & H. Co. v. Dolby, 47 Ind. App. 406, 92 N.E. 739; Smith v. Twin City R.T. Co., 102 Minn. 4, 112 N.W. 1001; Suburban Electric Co. v. Nugent, 40 N.J.L. 658, 34 Atl. 638; Morgan v. Westmoreland Electric Co., 213 Pa. S. 151, 62 Atl. 638; Citizens Tel. Co. v. Thomas, 45 Tex. C.A. 20, 99 S.W. 879; Ohstram v. City of Tacoma, 57 Wash. 121, 106 Pac. 629.

SMITH, J.

This case arises under the Missouri Workmen's Compensation Act and reaches this court on appeal from a judgment of the circuit court of Greene county, affirming the final award of the Workmen's Compensation Commission, awarding plaintiff compensation for the death of her husband, Jake Brewer, at the rate of $11 per week for three hundred weeks. The plaintiff filed her claim for compensation alleging that her husband was electrocuted by a charged lever and machinery which said lever and machinery the deceased was using as the employee of the defendant at the time of his death.

The defendant denies that this is a compensable case and states that the cause of employee's death is unknown and that there is no evidence of violence to the physical structure of the body and no objective symptoms of the cause of the death, and denies that the deceased was killed by charged defective lever and machinery.

There are some things admitted in this record, viz.: the employment of the deceased, the amount of wages received by him, and his sudden death. The controversy arises over the cause of the employee's death and...