Buttinger v. Ely & Walker Dry Goods Co.
| Decision Date | 03 November 1931 |
| Docket Number | No. 21453.,21453. |
| Citation | 42 S.W.2d 982 |
| Court | Missouri Court of Appeals |
| Parties | BUTTINGER v. ELY & WALKER DRY GOODS CO. et al. |
Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.
Proceeding under the Workmen's Compensation Act by Ida L. Buttinger, dependent, for the death of Paul F. Buttinger, her husband, claimant, and by Paul F. Buttinger, claimant, opposed by the Ely & Walker Dry Goods Company, employer, and the American Mutual Liability Insurance Company, insurer. From a judgment affirming an award of the Workmen's Compensation Commission, the employer and the insurer appeal.
Reversed and remanded, with directions.
Alroy S. Phillips, Robert C. Powell, and Charles S. Sigoloff, all of St. Louis, for respondent.
This is an appeal from the circuit court of the city of St. Louis affirming an award of the Missouri Workmen's Compensation Commission in the total amount of $5,221.95 in favor of a dependent widow.
Two claims for compensation were filed with the commission arising out of injuries alleged to have been sustained by Paul F. Buttinger on or about December 20, 1928, and which caused his death on or about May 10, 1929. One of the claims for compensation is that of Buttinger himself, which claim was received by the commission on April 27, 1929. On June 27, 1929, after Buttinger had died, Ida L. Buttinger, the dependent widow, filed her claim with the commission. By mutual consent the two claims were heard together.
The questions raised by the employer and insurer on this appeal are that the award is based entirely upon hearsay evidence so far as the actual happening of an accident is concerned, that the employer and insurer were prejudiced by the employee's failure to give notice of the alleged accident until three months after its alleged occurrence, and that the findings of the commission do not support the award. After a careful reading of the record we are unable to concur in appellants' view that the award is based entirely upon hearsay evidence.
It appears that the employee was a man 65 years of age, in good health, and had for 44 years been in the employ of his employer as a dry goods packer.
A witness named Foreman testified that in December, 1928, and January and February, 1929, he was working for the Ely & Walker Dry Goods Company making up cartons for the packers, of whom Buttinger was one; that on or about December 20, 1928, Buttinger came up limping and sat on the corner of the bench where he was working and said "a lid fell on my toe." Buttinger had taken off one of his shoes and was carrying it in his hand. He asked Buttinger: "What's the matter Paul?" Buttinger answered: "A lid fell on my toe." This witness further testified that it was in the morning during working hours, and, in answer to the question as to how long after the box lid had fallen on Buttinger's toe was it that Buttinger told him of it, he answered: "I imagine just a few minutes afterwards because he came right to me."
Mrs. Buttinger testified that, when her husband came home on the evening of December 20, 1928, he stated that some one had set a wooden box lid along side the counter at his place of work and that it had accidentally fallen on his foot; that after they had had their supper she and her daughter bathed the foot in hot water and bandaged the toe with arnica. She saw no discoloration of the toe nor any break in the skin nor any open wound. She said: Mr. Buttinger stayed away from work from the 20th to the 23d of February which was a Saturday, but returned to work on February 25th and worked until March 2d. On March 4th Mrs. Buttinger called Mr. Strattman, the packer boss of the company, and told him that Buttinger was not able to go to work because he could not get his shoe on, his foot was swollen around the ankle.
About the middle of March the employer called on Buttinger and learned the full details of the alleged accident, and the employer, on March 18, 1929, reported the accident to the commission. The toe was amputated on April 2d, and some time later gangrene set in, necessitating the amputation of the left leg on April 23d, and on May 10, 1929, Buttinger died of gangrene.
It is fair to assume that the falling of a wooden lid of a dry goods box on a toe would at least cause temporary pain, and it is a reasonable inference that when Buttinger limped over to the bench at which the witness Foreman was working, carrying his shoe in his hand, and complaining that a lid had fallen on his toe, the statement was spontaneous and made under the influence of the accident and within its immediate surroundings and part of the res gestæ. Hill v. Edward F. Guth Co. (Mo. App.) 35 S.W.(2d) 924; Munton v. Driemeier Co., 223 Mo. App. 1124, 22 S.W.(2d) 61.
Regarding the declaration as part of the res gestæ, it is entitled to be given its full probative effect as such, and we rule that claimant made out a case.
We next address ourselves to the complaint that the circuit court erred in affirming the award of the commission because the record shows that the employer and insurer were prejudiced by the employee's and dependent's failure to give the statutory notice of the accident according to section 3336, Rev. Stat. Mo. 1929, which reads as follows:
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