Carter v. Priebe & Sons, 18143.

• Citation: 77 S.W.2d 171
• Decision Date: 13 November 1934
• Docket Number: No. 18143.,18143.
• Court: Missouri Court of Appeals
• Parties: CARTER v. PRIEBE & SONS et al.

77 S.W.2d 171

CARTER v. PRIEBE & SONS et al.

No. 18143.

Kansas City Court of Appeals. Missouri.

November 13, 1934.

Appeal from Circuit Court, Clinton County; R. B. Bridgeman, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Salinda Carter, claimant, opposed by Priebe & Sons, doing business as the Hayman Produce Company, employer, and the Zurich General Accident & Liability Insurance Company, insurer. From a judgment of the circuit court reversing an award of the Workmen's Compensation Commission in favor of the employer and the insurer, employer and insurer appeal.

Reversed and remanded, with directions.

Shughart & Johnson, of Kansas City, for appellants.

F. L. Pulley and C. H. Harrison, both of Cameron, for respondent.

TRIMBLE, Judge.

Priebe & Sons, a corporation, doing business at Cameron, Mo., as Hayman Produce Company, the employer herein, and Zurich Liability & Accident Insurance Company of Chicago, the insurer, appeal from a judgment of the circuit court setting aside an award (in favor of employer and insurer), by the Missouri Workmen's Compensation Commission, and remanding the matter to the commission for further proceedings in the claim for compensation of Salinda Carter, mother and dependent of Delmar Carter, employee, for the latter's death alleged to have been caused by accident arising out of and in the course of his employment. The employee's death occurred on September 29, 1932, the alleged accident occurred on September 28, 1932. The claim for compensation was dated February 21, 1933, and filed with the commission on February 24, 1933.

The facts involved in the claim were admitted except as to whether the employee's death arose from any accident in the course of his employment. This was denied by the employer and insurer, and they further set up that no notice was ever given to the employer by claimant or any one else that the disease which brought about the death of the employee, Delmar Carter, was by reason of any accident in the course of his employment, or that it arose out of, or was brought on by, any exposure or any incident connected with his employment; and denied that employer knew or had actual notice of any such claim or of any claimed conditions; and they alleged that failure to give such notice has prejudiced the employer, in that it seriously prevented the employer from properly investigating and checking said claim.

The claim was heard by the referee for the commission, Spencer H. Givens, on June 8, 1933, at which hearing claimant introduced evidence to the following effect:

That Delmar Carter, the employee, had been working in employer's establishment for something over a year prior to his death; that he was 25 years of age at the time he died; that the last day he worked was the 28th of September, 1932. He had had a cold probably a week or so, maybe not that long, prior to his death, and "laid off a couple of days" the week before. He returned to work the following week and worked Monday, Tuesday, and Wednesday, said last-named day being the last day he worked. When he came home at noon of that day "he appeared just as well as usual"; when he came home that night he said he was feeling bad. Said he did not want any supper, and his mother told him he should see a doctor, and he then went to see a doctor. When he came home he did not seem to be any worse than he was when he started to see the doctor, but in about three-quarters of an hour after he came home "he had taken bad, right now he was bad." Dr. Gilliland, a practicing physician of Cameron was called and he came about half past 9, and he waited on and treated the patient from that time until he died about 10 minutes to 10, Thursday night, September 29, 1932; he had been sick a little over 24 hours. Claimant testified she filed her claim before the commission at the suggestion of a friend, and same was filed (the claim or record before the commission states) February 24, 1933.

The evidence discloses that Delmar Carter worked in a large room in which a number of people were employed picking chickens. Carter killed chickens which came down a chute uncooped and hung on shackles. Carter killed them and then scalded them. In doing this, the fowls would splash water on the employee's clothes and they would become wet. The place was very warm, he perspired freely. After the chickens were scalded they were picked and put in a tank of cold water. The employee, Carter, would then help take the chickens out of the cold water and put them in racks, and then help take them to the "cooler," a large refrigerator room cold enough to keep fowls frozen. He would take fowls, after they were thus killed, scalded, picked, and washed, into the cooling room, about six or eight times a day, some days less. In the room where the fowls were scalded, picked, and washed, there was a door leading to the outside, about 12 feet from said employee's post, and this door was opened frequently as employees passed in and out, and drafts of air blew across the place where he and the other employees were working. There were about 12 or 15 persons working in said room. "Every once in a while" there would be ammonia fumes from the pipes in the room. In addition to the door, there were four windows; and in the summertime, extending through September, the door and windows would be left open for ventilation.

Employee Delmar Carter had worked there practically a year when he died. He had been a killer and scalder of chickens, but not all the time. He was working at this tank of hot water the last day he worked. At least one boy, and perhaps two, had worked with him and did so that day. The shackles on which chickens (three on each shackle) were hung, each had a handhold which the scalder would seize and "swish" the chickens through the hot water. He did not put his hands down in the water unless a chicken got off the shackle and then he would have to reach down and get it, and the water that got on him was no more than what would naturally splash up on him. There was evidence that he had been doing this work during the time he had been working at the plant. He wore a rubber apron and rubber boots; he and the two boys that worked with him would get wet every day, and the pickers would get wet picking those wet chickens unless they had on good aprons.

There was no unusual occurrence in the course of Delmar Carter's work that last day, or on any day before he quit work. He did not fall into the tank or get any wetter than usual, there was no undue steam or undue escape of ammonia. Most of the time there was an odor of ammonia from the ammonia pump in the corner of the room, but no unusual escape of ammonia as it was being pumped into the pipes. Said employee helped take chickens into the cooler every day when chickens were being killed. He did not have to stay in the cooler longer than to take the chickens in and come back out. He did have to hang them up in there. There was nothing in the way of an accident or of an unusual or extraordinary nature happened while he was working in said plant.

Employee, Delmar Carter, worked all day and up to the regular quitting time the last day he was there. It was observed that he perspired freely; all the employees in the room perspired, but not to the extent that he did.

Dr. Gilliland testified for claimant that he was called to see Delmar late in the day of September 28th. He found him in a very serious condition, and went to see him 7 times in the next 24 hours or until he died. He diagnosed the patient's illness as bronchial pneumonia; from him, and perhaps the family, he learned that he had a cold a few days before. In answer to a hypothetical question covering the conditions under which he worked (to which question employer and insurer objected), he said working under those conditions would make the patient, Delmar Carter, very susceptible to occasional colds, and it was "logical in this case that the pneumonia came from this cold he had contracted a few days before." He further testified that cold might come from any one of a thousand things to a person either at work, play, or sleep, but in deciding what caused a cold you "take one that is the most logical, you understand"; that cold is "an infectious disease that comes from a germ in the body." In answer to a question whether, if the boy (as employee was termed) had worked for a year under the conditions named, could he tell or form an opinion as to whether the patient "had got that cold from such conditions or whether he had gotten it somewhere in the evening or from...