Crow v. Missouri Implement Tractor Co., 7570

• Decision Date: 20 March 1957
• Docket Number: No. 7570,7570
• Citation: 301 S.W.2d 423
• Parties: W. C. CROW, Claimant, Appellant, v. MISSOURI IMPLEMENT TRACTOR COMPANY, Employer, and Hardware Mutual Casualty Company, Insurer, Respondents.
• Court: Missouri Court of Appeals

Page 423

301 S.W.2d 423

W. C. CROW, Claimant, Appellant, v. MISSOURI IMPLEMENT TRACTOR COMPANY, Employer, and Hardware Mutual Casualty Company, Insurer, Respondents.

No. 7570.

Springfield Court of Appeals, Missouri.

March 20, 1957.

Motion for Rehearing or to Transfer Overruled May 2, 1957.

L. D. Joslyn, T. B. Russell, Charleston, for appellant.

Hyde & Purcell, George R. Wilhoit, Jr., Poplar Bluff, for respondents.

STONE, Judge.

In this proceeding under the Missouri Workmen's Compensation Law, the referee in the first instance, and the Industrial Commission of Missouri on review, found against W. C. Crow, the claimant; and, from a judgment of the circuit court affirming the final award of the Commission, claimant prosecutes this further appeal.

On August 21, 1954, the date of the alleged accident, claimant, then 62 years of age, was shop foreman for Missouri Implement Tractor Company (hereinafter referred to as the employer), a farm implement dealer at Charleston, Missouri. Claimant wrote job tickets, 'oversaw the work,' and 'when there wasn't anybody else around' assisted in the work. While engaged with a fellow-employee, Ansel Goodale by name, in adjustment of a new International Harvester No. 2-ME corn picker in the employer's shop, claimant suffered a coronary occlusion which has resulted in permanent total disability. The sole issue is whether claimant sustained an 'accident' within the meaning of Section 287.020(2). (All statutory references herein are to RSMo 1949, V.A.M.S.)

At the time of his injury, claimant was assisting in adjustment of the angle of elevation of the 'elevator,' that part of the corn picker which conveys the ears of corn on an endless chain from the husking unit backward and upward to the raised end of the elevator from which the corn drops into a wagon or trailer towed behind the corn picker. The elevator, made of heavy gauge steel, was eleven to twelve feet, 'something like that,' in length, with an open trough on the upper side about fourteen inches in width and eight inches in depth. The front and lower end of the elevator was attached to the rear end of the tractor frame, while the rear and upper end of the elevator was held in a raised position by two elevator bail rods (one on each side of the elevator) extending from 'a little past half-way up the elevator where they attach to each side' down to the rear end of the tractor frame. The elevator was so connected that its angle of elevation, usually about forty-five degrees, might be varied by means of two turnbuckles (one on each side) in a complicated adjusting mechanism at the rear end of the tractor, without disengaging the elevator from its fixed support. To reach these turnbuckles, Goodale 'had to lay on the floor and slide underneath' the tractor; but, the turnbuckles being 'full of paint, of course, and new and hard to turn,' Goodale was unable, by means of the turnbuckles, to accomplish the desired purpose of lowering the elevator. Accordingly, Goodale told claimant that it would be necessary to disconnect certain links in the supporting mechanism, which would have permitted the elevator to fall unless otherwise supported. Claimant immediately said, 'I will support the elevator,' and assumed a standing position on the concrete floor under the elevator, facing forward toward the tractor, with his arms extended 'straight up over my head' and with his hands 'gripping' the sides of the elevator.

Goodale, lying under the rear end of the tractor, 'tapped out' a link in the supporting mechanism on one side and adjusted the turnbuckle on that side, while the elevator still was supported by the mechanism on the other side. Then, with claimant standing in the above-described position, Goodale similarly 'tapped out' a link on the other side, thus completely disengaging the elevator from its supporting mechanism. The weight of the raised end of the elevator, estimated by claimant at one hundred fifty to two hundred pounds, immediately dropped on claimant's hands and arms. 'It was just so heavy it felt like it pushed my (claimant's) shoulders down--my arms down in my shoulders. Hurt across the bottom of my chest.' However, claimant remained in the same position, 'just held' the elevator, and told Goodale, 'You will have to hurry.' Within a minute or so, Goodale accomplished the desired adjustment, reconnected the supporting mechanism of the elevator, and relieved claimant of the weight of the raised end. With refreshing candor, claimant frankly conceded that his purpose in assuming the described position under the elevator was to support its weight; that he 'expected it to drop' and knew that, when Goodale disconnected the supporting mechanism, the weight of the elevator would be imposed on his upraised arms; and, that he 'didn't slip or trip or fall or anything like that.' Although claimant admittedly made no complaint at the employer's place of business that day, the causal connection between claimant's sustention of the elevator and the coronary occlusion diagnosed by his attending physician the following day is not disputed, and his ensuing permanent total disability is not denied.

The Commission found that claimant 'sustained an abnormal strain while holding up the elevator' but that 'this abnormal strain was not preceded or accompanied by any unusual or unexpected occurrence and, therefore, was not an accident as the same is defined by the Missouri Workmen's Compensation Act and judicial decisions.' Claimant's counsel here contend, in substance, that the abnormal strain found by the Commission was, in and of itself, 'a personal injury by accident and compensable,' and that, even if it were necessary (as the Commission held but claimant denies) for an abnormal strain to be preceded or accompanied by an 'unusual or unexpected occurrence' to bring it within the statutory definition of 'accident' in Section 287.020(2), 'the drop or fall of the elevator with such abrupt force that the employee could only sustain it at the expense of the abnormal strain' constituted such 'unusual or unexpected occurrence.'

Section 287.020(2) defines an 'accident' as 'an unexpected or unforeseen event happening suddenly and violently * * *.' Although, as was pointed out in Alexander v. Saunders Mills, Inc., Mo.App., 289 S.W.2d 483, 489, much has been written (not all of which is wholly consistent or readily reconcilable) by our appellate courts concerning the term 'unexpected or unforeseen event,' it is now settled that the injury cannot constitute the 'accident' or the 'event' contemplated by the Compensation Law [Finerson v. Century Electric Co., Mo., 227 S.W.2d 740, 745(5), and cases there cited], and that '(t)he event which constitutes an accident is * * * clearly a happening or occurrence in part at least external to the body itself.' ¹ (All emphasis herein is ours.) This being true, obviously a strain, in and of itself, is not an 'accident' within the meaning of Section 287.020(2), and a distinguished jurist properly observed, with care and discrimination, that a 'strain could not have been regarded as abnormal in the sense of being accidental unless it had been preceded or accompanied by some unusual occurrence.' Howard v. St. Louis Independent Packing Co., Mo.App., 260 S.W.2d 844, 846. Loose statements by way of dicta (invariably interpolated in cases ² in which the courts have found that there was no 'accident'), which at first blush would seem to afford some foundation for the contention that all abnormal strains might be cast, without reservation, into the same category of 'unexpected or unforeseen event[s]' as slips and falls, clearly should be qualified in their application as in the Howard case, supra, ³ for certainly a strain is not, in and of itself, 'a happening or occurrence in part at least external to the body itself.' See cases cited in footnote 1, supra. Concluding that the Commission's finding of an abnormal strain in the instant case neither constituted nor necessitated a holding that claimant had been injured by a compensable accident, we proceed to a consideration of the Commission's further finding that claimant's 'abnormal strain was not preceded or accompanied by any unusual or unexpected occurrence.'

The only respect in which claimant now urges that the occurrence under discussion was impressed with or affected by unexpectedness, recognized by our statutory definition [Section 287.020(2)] as a basic and indispensable ingredient of every 'accident' [Larson on Workmen's Compensation Law, Vol. 1, Sec. 37.20, p. 512], is that the elevator on the No. 2-ME corn picker, a 'new model' on which claimant had made no previous elevator adjustment, was somewhat heavier than the elevator on 'older models' which claimant admittedly had supported at least 'once or twice.' We are by no means satisfied that, even if claimant had established that there was a substantial difference in the weights of the elevators on the 'new model' and on the 'older models,' he thereby would have demonstrated that his strain 'had been preceded or accompanied by some unusual occurrence' [Howard v. St. Louis Independent Packing Co., supra, 260 S.W.2d loc. cit. 846] and would have satisfied the statutory requirement of 'an unexpected or unforeseen event.' Section 287.020(2). For, evidence in the Howard case, supra, that the bull forequarter which 'came down upon (claimant's) shoulder with 'an unusual force--more than ever before'' weighed two hundred seventy-five to three hundred pounds and was 'heavier than most' [260 S.W.2d loc. cit. 845-846], and evidence in Palmer v. Knapp-Monarch Co., Mo.App., 247 S.W.2d 341, 343, that the box being lifted by claimant, when her back was injured, was 'a heavier box,' in fact 'the heaviest,' did not supply the required proof of an 'accident' in either of those cases.

But, notwithstanding the fact that claimant testified that, after the date of his injury but long prior to the hearing in this case, he ...