Cleveland v. Laclede Christy Clay Products Co.

• Decision Date: 06 June 1939
• Docket Number: No. 25195.,25195.
• Parties: CLEVELAND v. LACLEDE CHRISTY CLAY PRODUCTS CO. et al.
• Court: Missouri Court of Appeals

129 S.W.2d 12

CLEVELAND v. LACLEDE CHRISTY CLAY PRODUCTS CO. et al.

No. 25195.

St. Louis Court of Appeals. Missouri.

June 6, 1939.

Appeal from St. Louis Circuit Court, Division No. 7; Ernest F. Oakley, Judge.

"Not to be reported in State Reports."

Proceedings under Workmen's Compensation Act by Jasper Cleveland, employee, opposed by the Laclede Christy Clay Products Company, employer, and the American Mutual Liability Insurance Company, insurer. From a judgment setting aside an award of the Workmen's Compensation Commission, the employee appeals.

Affirmed.

Joseph A. Lennon, Bryan Purteet, and C. J. Stattler, all of St. Louis, for appellant.

Luke & Cunliff, of St. Louis, for respondents.

HOSTETTER, Presiding Judge.

This is a case begun before the Missouri Workmen's Compensation Commission by the filing of a claim on January 28, 1937. Claimant, Jasper Cleveland, was an employee of the Laclede Christy Clay Products Company, and sought compensation on account of lung trouble, commonly called "silicosis". On a hearing before the Workmen's Compensation Commission the award was in favor of the employee and from such award the employer and the American Mutual Liability Insurance Company, the insurer, appealed to the circuit court of the city of St. Louis, which court reversed and set aside the award of the Workmen's Compensation Commission "upon the ground that said Commission acted without or in excess of its powers, because the statute of limitations had barred plaintiff's claim". From the judgment of the circuit court the claimant, employee, perfected his appeal to this court.

The employee in his claim for compensation alleged an injury to his chest due to the inhalation of dust. It was further set out in his claim that the date of the accident was "first discovered when X-rayed on January 3, 1937 — received X-ray report on January 7, 1937". It is conceded that the employee did not give the employer any notice of the claimed injury until January, 1937.

The filing date of the claim, January 28, 1937, was seven months and a few days after the claimant last worked for the employer. Claimant testified that he had worked for the employer from 1928 until June 22, 1936.

Claimant's job was the operation of a truing machine which was used to grind and finish tile. The place where this was done was in a shed, open on two sides. He stated that while doing the work there was a large amount of dust, and that he would breathe it, and would cough and spit the dust up; that he noticed, while working, that the dust injured his clothing. The grinding was done with carborundum and the dust he spit up was black dust, which came from his lungs, throat, and nasal passage; that he coughed and spit up pretty often, some days worse than others, depending upon the direction of the wind which blew through the shed. That dust collectors were installed on the machinery where he worked, but that these were not efficient in removing all the dust, and that he continued breathing dust and spitting it up throughout the time he was employed there. He first noticed trouble with his respiratory organs, or his chest, about 1934. He had a pain in his chest, a cough, and loss of weight, together with other symptoms. When he exerted himself in any way he could not do the work as he formerly did; that he could not work so fast; that the last few months he worked there he had to rely on his helper to do the biggest part of his work. This was due to his shortness of breath and a tired feeling.

Because of the pain in his chest employee consulted a physician of his own selection, Dr. Francis G. Weinel, on January 30, 1936. Dr. Weinel treated him at that time and ordered him to bed, where he remained for several weeks. About six weeks after Dr. Weinel saw him and treated him at his home, he talked to the Metropolitan Life Insurance Company nurse, and following her advice he again went to Dr. Weinel and asked for a thorough examination. Dr. Weinel sent employee to another physician for an X-ray of his chest, and to the City Chest Clinic, where there were numerous sputum tests made. He continued under Dr. Weinel's care off and on throughout the period from January, 1936, until the time of the hearing before the Commission in October, 1937.

He spit up the black stuff referred to from the time he started working for the employer until he quit. "You do that while you're working there; you spit the dust up; you can't keep from it." The shortness of breath he first noticed in 1933 or 1934 never left him and is one of his present complaints, it kept continuously getting worse, and there was no time after he first noticed it that it got better. His lungs seem like something is squeezing them, and they have felt that way continuously since the first part of 1936 or 1935, several months before he saw Dr. Weinel; that the pain in his lungs has never left him, it is the same pain now that began in 1934 or 1935 only it is worse now. He stated that the dry hacking cough started not long after he commenced working for employer and he would spit up dust. "Of course, when I would get that dust in my throat naturally I would cough. Back in them days the only time I would cough would be at work when the dust would get in my throat." He still has the cough. The shortness of breath, the peculiar sensation in his lungs, easy exhaustion, the cough, and a loss of weight are the symptoms he complains of, and these same symptoms he has had continuously for several years. He noticed that he started to lose weight about four years after he started to work, about 1932 and continued to lose from 1932 on.

He stated that following Dr. Weinel's call on January 30, 1936, because of the pain in his chest, which extended across his chest, that he was off work four or five weeks under the doctor's care, confined to his bed and the doctor prescribed medicines for him and he was attended by the Metropolitan nurse. That his illness was the same trouble in his chest which he has now. That Dr. Weinel continued to treat him from that time on, examined him from time to time, and prescribed medicine and all the treatment given him was in connection with the same ailment in his chest; that he had never gone to any other doctor for treatment; that he did go to the City Clinic and to another doctor for an X-ray of his chest. He stated that his helper did about half his work in the last few months he worked; that the reason why he was not able to do his full work was because of this condition of his chest of which he complained, the shortness of breath and his tiredness; that he himself felt unable to do more than half his work; that the tired feeling had been coming on him about a year prior to June 22, 1936, and kept gradually getting worse until for three or four months before June, 1936, it became so bad that he could only do half his work and he relied on his helper to do the other half.

For several months prior to June 22, 1936, and up to the time of the hearing, the employee testified that he had this same trouble in his chest; that he knew he had it and that it was gradually getting worse. He stated that the dust bothered him all the time, and stated, "Especially when I was working in the dust and would spit up that dust", and noticed he was getting it in his throat and nostrils, and when he would cough and spit he would spit up the dust.

Claimant (employee) said, "All the time I was going to Dr. Weinel it was because of the trouble in my chest, and he was treating me, giving me medicine for it. I knew I was sick in the chest. The doctor did not give me the name of it. I knew there was something wrong. I knew I needed medical treatment. I knew it was causing my disability that prevented me from doing my full work." He had not tried to do any work since June 22, 1936, and his reason was "I haven't been able, haven't felt like I could do a day's work." He says Dr. Weinel told him that he should not work and repeated that he has not received any compensation or any payments from the employer because of his chest condition. He had received an accidental injury to his hand, for which compensation was paid him, but this hand injury was an entirely separate, distinct matter having nothing to do with this present claim. He knew it was a separate different thing.

Dr. Weinel, testifying for the claimant, related that he had seen the claimant on January 30, 1936, following which time claimant was sick in bed for two weeks; that he saw him again in March, 1936, and at that time claimant had spit up blood several times, and came to the doctor, at the suggestion of the nurse, for an examination; that he was given a complete, thorough general physical examination which included a taking of the history in which he related that he had a dry, hacking cough which had been bothering him for about four years; that he (Dr. Weinel) had a series of sputum tests made and prescribed medicine and ordered him to stay in bed every afternoon from 1 to 3 and to go to bed at 9 o'clock at night; that in his opinion the man had definite pathology in his chest at that time; that he continued to advise him to stop work because he should not have been working; that that condition continued throughout the time he was under his care, which was continuously from March, 1936. Dr. Weinel stated: "I found that he could only hold his breath for ten seconds and that denotes a decrease in the vital capacity of the lungs. I did not feel that he was able to work because his condition is aggravated by work and he had had a great loss of weight and his vital capacity is decreased"; that an X-ray picture was taken and that it was suspicious to him; that from the time he saw the claimant in March, 1936, throughout the year, he felt there was some pathology in his chest; that the reason for his opinion that employee was disabled was that according to the chest examination he had fibrosis in his lungs and his vital capacity was...