Carr v. Murch Bros. Const. Co.

• Decision Date: 03 December 1929
• Docket Number: No. 20683.,20683.
• Citation: 21 S.W.2d 897
• Parties: ABNER J. CARR (CLAIMANT), RESPONDENT, v. MURCH BROTHERS CONSTRUCTION COMPANY, A CORPORATION (EMPLOYER), AND MARYLAND CASUALTY COMPANY, A CORPORATION (INSURER), APPELLANTS.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

21 S.W.2d 897

ABNER J. CARR (CLAIMANT), RESPONDENT, v. MURCH BROTHERS CONSTRUCTION COMPANY, A CORPORATION (EMPLOYER), AND MARYLAND CASUALTY COMPANY, A CORPORATION (INSURER), APPELLANTS.^*

No. 20683.

St. Louis Court of Appeals. Missouri.

Opinion filed December 3, 1929.

Appeal from the Circuit Court of the City of St. Louis. — Hon. George E. Mix, Judge.

AFFIRMED.

Burney P. Bodard and Raymond L. Swann for appellants.

(1) Before an employee can recover compensation for hernia, he must definitely prove the four essential requisites set out in the Compensation Act, the first of these being that there was an accident resulting in hernia. 1 Honnold on Workmen's Compensation (1 Ed.), sec. 129, page 503; Missouri Workmen's Compensation Act, section 17, subdivision B (Laws of Missouri 1927, page 501); Section 7, subdivision B (Laws of Missouri 1927, page 495); Webster's New International Dictionary of the English Language (1928 Ed.); Alpert v. Powers et al., 119 N.E. 229, 223 N.Y. 97; Cavalier v. Chevrolet Motor Company of New York, Inc., et al., 178 N.Y.S. 489; Noble v. Mathieson Alkali Company, Inc., et al., 186 N.Y.S. 752; Sure Pure Ice Company v. Industrial Commission et al. (Ill.), 150 N.E. 909; Kutschmar v. Briggs Mfg. Co. (Mich. case). 163 N.W. 933; Stombaugh v. Peerless Wire Fence Company, 164 N.W. 537; Tackles v. Bryant & Detwiler Company, 167 N.W. 36, 200 Mich. 350; Gentelong v. American Hide & Leather Company et al., 184 N.Y.S. 808; Sanders v. Faller et al., 205 N.Y.S. 285. (2) Under section 17 (b) of the Missouri Workmen's Compensation Act, before an employee can recover compensation for hernia, he must definitely prove that the hernia did not exist in any degree prior to the alleged accident resulting in the injury for which compensation is claimed. Missouri Workmen's Compensation Act, section 17, subdivision B (Laws of Missouri 1927, page 501); McPhee & McGinity Company v. Industrial Commission of Colorado et al. (Colo.), 185 Pac. 268; Indemnity Insurance Company of North America v. Jones et al. (Texas), 299 S.W. 674; Travelers Insurance Company v. Washington (Texas), 5 S.W. (2d Series) 783; O'Brien v. Wise & Upson Company, Inc., et al. (Conn., 1928), 143 Atl. Rep. 155.

Bartley & Mayfield for respondent.

(1) A pre-existing injury or condition in the body, including hernia, if injured or aggravated by an accident, is compensable. Brown v. Kemp, 14 N.C.C.A. 535 (note): Puritan Bed Spring Co. v. Wolfe, 17 N.C.C.A. 872 (note), 120 N.E. 417; West Side Coal & Mining Co. v. Industrial Comm., 25 N.C.C.A. 350, 361 (note), 321 Ill. 61; O'Gara Coal Co. v. Industrial Comm., 320 Ill. 191; Rissman & Son v. Industrial Comm., 26 N.C.C.A. 1, 15 (note); Scales v. West Norfolk F.M.C.C.O., 6 N.C.C.A., 390; Forrest v. Roper Furniture Co., 187 Ill. App. 504; Klika v. Ind. School Dist. No. 79, 202 N.W. 30 (Minn.); Walker v. Minn. Steel Co. 209 N.W. 635 (Minn.). (2) There was an accident within the meaning of subsection (b) of section 7, Laws of 1927, page 495. This definition could have been copied from Compiled Laws of Nebraska, 1922, section 3075, subsection (b). It is identically the same. Minnesota has the same phraseology, Mason's Minn. Stat. 1927, section 4326, subsec. H. Manning v. Pomerene, 162 N.W. 492 (Neb., 1917); Johansen v. Union Stock Yards Co. of Omaha, 156 N.W. 511 (Neb., 1916), 99 Neb. 328; Van Vleet v. Public Service Co. of N.Y., 195 N.W. 467 (Neb., 1923); LaVeck v. Parke, Davis & Co., 157 N.W. 72; State ex rel. Rainey Lake Co. v. Dist. Ct. of St. Louis Co., 164 N.W. 585 (Minn.); Kallgren v. C.W. Lindquist Co., 216 N.W. 241 (Minn., 1927); Brown's Case, 123 Atl. 421 (Maine, 1924); Babich v. Oliver Iron Min. Co., 195 N.W. 784 (Minn.). (3) There being competent evidence to support it, the award of the commission is binding. Laws of 1927, 512, section 44; State ex rel. Brewen-Clarke Syrup Co. v. Missouri Workmen's Compensation Comm., 8 S.W. (2d) 897.

SUTTON, C.

This appeal is from the judgment of the circuit court affirming the award of the compensation commission under the Missouri Workmen's Compensation Act. The injury for which claim is made is the strangulation of a pre-existing hernia.

Upon the hearing before the commission, the claimant testified:

"My occupation is that of a hoisting engineer. My weekly wage for that work is $66 per week. On June 3, 1927, I was in the employ of Murch Brothers Construction Company, located in St. Louis. I was working on the telephone building at Beaumont and Locust, running a siphon, pumping water. These are the usual duties of a hoisting engineer. The steam valve that operated this siphon was on top of the boiler, and I had to reach up and get it to turn the steam off and on. In doing this, I felt a severe pain, and it felt as though the hernia slipped below the truss. At the time of this occurrence, I was suffering from an old hernia. I don't know the sort of hernia it was. I don't know the name for it. It was on the left side. It was described to me by the doctors as an inguinal hernia, and I have been suffering from this hernia for five years. This hernia came on me one winter when I had a severe cold, and I was coughing and sneezing, and this bump came there. I went to the doctor and he told me to wear a truss. I have been continuously wearing a truss, and have been working as a hoisting engineer, and was never troubled with the hernia, from that time on, up to June 3, 1927. The pain I experienced on June 3rd continued. When I lay down at night it would keep me awake; then the next day it would hurt awful bad. I continued to work on June 3rd, after I had this pain, which was Friday, and on the following Saturday, Sunday, and Monday. On the following Tuesday I had breakfast, and went to the doctor's office. I went to Dr. P.A. Eck. He said I would have to go to a hospital inside of an hour. I went to St. John's Hospital. At the hospital, I called Dr. W.T. Coughlin, and when he came I was in bed. He worked on the hernia and tried to get it back. He said that he might have to operate right away, that if he didn't he would wait until in the morning. He told me the nature of the hernia. He said it was a strangulated hernia. He operated on me the next morning. I was in the hospital eighteen days; this was the result of the operation. I was disabled from work, and was out of work, from the time I went to the hospital until August 16, 1927. I went to the hospital immediately upon the advice of Dr. Eck. I paid $110.45 for nursing and hospital service. Dr. Coughlin rendered me a bill for $150 for the operation and services after the operation. There has been no compensation paid me at all. There was no hospital or medical service offered me at any time."

The attending physicians in their reports described the nature and extent of claimant's injury as "a left-side strangulated indirect inguinal hernia."

The Commission awarded compensation as follows: For medical aid $250, for 9-6/7 weeks total temporary disability $197.41, aggregating $447.41. The Commission in connection with the award made findings of facts and rulings of law as follows:

"The employee on the 3rd day of June, 1927, was suffering from a left inguinal hernia and had been so afflicted for five years prior thereto and was at the time of this injury wearing a truss. While reaching up to turn off the steam of a boiler the truss slipped out of place and caused an aggravation of the hernia, necessitating an operation therefor.

"Where a pre-existing hernia is aggravated and accelerated by an accident the employer and insurer are liable for the loss of time occasioned thereby, and also for an operation and necessary hospital and medical cost not exceeding $250.

"This is not a claim for compensation for hernia under section 17 (b) of the Act. It is a case of accidental strangulation of a pre-existing hernia, which...