Brown v. Griesedieck Western Brewing Co. of Mo.

Decision Date01 July 1952
Docket NumberNo. 28325,28325
Citation250 S.W.2d 803
PartiesBROWN v. GRIESEDIECK WESTERN BREWING CO. OF MISSOURI et al.
CourtMissouri Court of Appeals

John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for appellants.

Harry J. Stadin, Courtney S. Goodman, St. Louis, for respondent.

HOUSER, Commissioner.

In a proceeding filed under the Workmen's Compensation Law a referee of the division of workmen's compensation found in favor of Mark Brown, employee, and against Griesedieck Western Brewing Company of Missouri, employer. On review the industrial commission reversed the referee's award and found in favor of the employer. On appeal the circuit court reversed and set aside the final award of the industrial commission denying compensation. From the judgment of the circuit court the employer and insurer have appealed to this court.

The claim and answer filed with the division raised the issue whether the employee while making a delivery for the employer on September 3, 1948 fell over a bookcase, thereby injuring his right leg, hip and back, it being the contention of employer and insurer that claimant at no time suffered any injury or disability arising out of or in the course of his employment. The ultimate issue was whether a hip fracture sustained by Mark Brown was a pathological fracture due to bone disintegration caused by disease or whether it was a fracture sustained as a result of the fall described by the employee.

At the hearing claimant testified that on September 3, 1948 while delivering case beer for his employer at Woodruff Drug Company in the City of St. Louis he bumped against a bookstand, lost his grip on the hand truck he was pushing, knocked the bookstand over and fell on top of it, his whole right side striking the bookstand; that he received a few scratches on his right side, shoulder and neck but continued on his route, completed his work for the day, reported the occurrence to his boss; that although he noticed no trouble with his right side, leg or hip on that day immediately after the occurrence he began to stiffen up a bit on his right side that night, not enough to 'stop him', but that he didn't move around as freely as he did ordinarily; that on the next day, September, 4, he returned to work, starting at 8:15 a. m., and that at about 2 p. m. he was at Koch Tavern at 2225 Pestalozzi Street; that while in the act of picking up a case of beer to carry it from the left to the right-hand side of his truck he bent over, took hold of the case with both hands in the grip holes, and had just lifted the case off the floor when he felt a snapping or popping in his right side or leg; that his leg 'felt funny'; that the snap began at his knee and went to his hip. It seemed like his leg drew up and cramped his hip. He didn't stumble, trip, slip or fall. He could not get his right foot to the floor, became very sick and was unable to continue his work for more than 45 minutes. He was unable to walk. He returned the truck to the garage, reported to the employer's dispatcher that he had hurt himself, and went home, where Dr. Francis J. Medler saw him that evening. On the following Tuesday Dr. Medler made an X-ray of claimant's leg, told him to go home, stay off of it and not to walk on it. Claimant remained at his home for approximately 5 weeks, during which period he visited the doctor once a week. A second X-ray was then taken, in which the doctor discovered a fracture, whereupon he made arrangements for claimant to enter St. Mary's Hospital as a patient of Dr. E. C. Funsch. Claimant spent 11 days in that hospital under the care of Dr. Funsch and the resident surgeon Dr. O'Reilly, during which time X-rays were taken. Claimant was placed in a plaster cast. Thereafter Dr. Funsch did not continue to treat him. For an 8-week period while he was at home in bed claimant was visited by Dr. Medler twice a week. Claimant was in City Hospital from December 3, 1948 to February 15, 1949 and on various occasions thereafter. In all he was placed in a cast 3 times and at the time of the hearing his hip was stiff in all directions, his right leg was 2 inches shorter than the left, and he was completely disabled for hard, manual work.

It was claimant's theory that he suffered a fracture of the neck of his right femur when he fell over the bookcase; that it was an impacted fracture; that the broken parts held together until the incident which occurred on September 4.

Claimant's doctor, Edward C. Holscher, examined claimant on October 10, 1949. He also examined numerous X-ray plates taken at the hospitals. It was his opinion that the fracture was caused by the fall over the bookstand; that it was an obvious impacted fracture at the base of the neck of the femur which was driven down into the superstructure of the trochanter a distance of about an inch; that the fragments were enmeshed together so that there was relatively little if any motion between the fragments; that it is possible for a person to have one bone driven into another a distance of an inch and practically feel no effect, just like nothing happened, and that he would not have shock or pain, or very mild pain, because the damage is within the cancellous or spongy type of bone, away from any nerve site; that if the fracture were one in which the fragments came apart the individual would probably be incapacitated, could not get up and bear his weight on the extremity and there would be pain, but if it were an impacted fracture with the fragments jammed together and enmeshed so that there was very little motion between the fragments 'then the person could have a very vague type of disturbance; it might even feel like a bruise or some stiffness in the hip and (he) could get up and bear weight on it because the fragments are enmeshed together and stabilized together, and go on his way'; that a man could sustain such a fracture in such a fall without knowing about it; that the impacted fragments can be unrecognized by the patient and often by the doctor; that the patient could go on indefinitely through to a complete healing; that in an impacted fracture of this type the fragments can later get loose and cause an upset of symptoms, as presented here in this case; that the accumulated weight stress through the region resulting from stooping, bending and twisting his hip and lifting up of the case of beer (and presumably others) caused the firmly impacted fractures to come partially apart and become free; that when the 'popping sensation' occurred the impaction became loosened, but the 'thing that appears to have pulled apart here is the manipulation at St. Mary's Hospital when they attempted to correct the alignment.' He ruled out the possibility of pathological fracture due to syphilis, stating that the hip joint looked perfectly normal. He saw no evidence of any reaction of the bones at any place--'nothing cystic there'--saw no evidence of any syphilitic lesion in the bone or manifestation whatever in the X-rays or of any pathology in or about the site of the fracture. He denied that a case of syphilis such as claimant had could produce a condition in and about the neck of the femur so that it would ultimately break and stated that in his opinion the injection treatment for syphilis had no causal connection with the fracture; that in a late stage of syphilis where the bones are affected they become inflamed, get thick, brittle, dense in appearance, and that there might be pain or limited motion; that the hip joint is not very often involved in syphilis and that the hip joint in this case shows no evidence that there has been a process of that nature; that when syphilis in the central nervous system affects the joints it is known as 'Charcot's' disease, a characteristic picture of disintegration of bone immediately beneath the joint, which is easily ascertained in X-rays; that it 'looks like a clean cut fracture and no evidence that it has occurred from any disease process within that bone or bony structure at the hip.'

Richard L. Ravenstein, manager of the drug company, recalled the incident of the driver knocking down a bookstand while delivering beer, heard a noise, saw the bookstand and books lying on the floor, identified his initials on the delivery ticket showing that on August 9, 1948 a driver by the name of Brown delivered some beer and that Ravenstein receipted for the beer. He testified that the driver said he was not hurt; that there was a scratch on his arm; that when the driver finished his delivery he walked out and was not limping.

It was the theory of employer and insurer that no such occurrence as that described by claimant took place on September 3, 1948; that the only time claimant made a delivery to Woodruff Drug Company was on August 9, 1948; that he sustained no injury at that time; that the fracture occurred on September 4, 1948 as a result of the disintegration of the bony structure of the hip due to a syphilitic condition and that it would have been a physical impossibility for claimant to continue to work from August 9 to September 4, 1948 with an impacted fracture of the femur. In support of this theory the following documents were produced: The company's ledger sheet showing all deliveries made to the drug company; all receipts for deliveries to that company during the period August 9 to September 3, 1948 and all delivery tickets signed with the name 'Brown' as driver dated September 3, 1948. The only slip showing delivery to Woodruff Drug Company bearing the signature nature 'Brown' was dated August 9, 1948. When confronted with this slip claimant denied that the signature was his own; stated that at that time there were two Browns working for employer and that he pur 'M' Brown on all his tickets. The two slips showing deliveries to Woodruff Drug Company on September 3, 1948, the date claimant testified he fell at the store, were signed by driver Ray Deckman and...

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