Cuchi v. George C. Prendergast & Sons

• Decision Date: 05 June 1934
• Docket Number: No. 23044.,23044.
• Citation: 72 S.W.2d 136
• Court: Missouri Court of Appeals
• Parties: CUCHI et al. v. GEORGE C. PRENDERGAST & SONS et al.

72 S.W.2d 136

CUCHI et al. v. GEORGE C. PRENDERGAST & SONS et al.

No. 23044.

St. Louis Court of Appeals. Missouri.

June 5, 1934.

Appeal from St. Louis Circuit Court; Charles B. Williams, Judge.

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Act by Theresa Cuchi and others, dependents of John Cuchi, employee, for deceased employee's death, opposed by George C. Prendergast & Sons, employer, and the New Amsterdam Casualty Company, insurer. Final award of compensation was affirmed by the Circuit Court, and employer and insurer appeal.

Judgment of Circuit Court affirmed.

Green, Henry & Remmers, of St. Louis, for appellants.

Woodward & Evans, of St. Louis, for respondents.

BECKER, Judge.

This is an action for compensation brought under our Workmen's Compensation Act (Mo. St. Ann. § 3299 et seq., p. 8229) for the death of claimants' husband and father. There was a final award which, upon appeal to the circuit court, was affirmed. The employer and insurer in due course appeal.

John Cuchi was an employee of the George C. Prendergast & Sons, Inc., who were contractors building a viaduct on the Watson road across the river Des Peres in St. Louis county. On October 18, 1932, Cuchi, while working in a pier hole, aiding in the removal of the wooden frames used in connection with the pouring of concrete, was struck on the back of his head by an iron hook attached to a cable running from a large crane used in connection with the work. Cuchi was immediately taken to the office of Dr. Vosburgh who, assisted by Dr. St. John, cleaned out his wounds, washing them with alcohol and with iodine, and inserted a rubber drain and thereafter bandaged them. The doctors advised him to take antitetanic serum but Cuchi refused. He died ten days after the accident from tetanus.

The only point involved in this appeal is whether or not the refusal of Cuchi to accept antitetanic serum was such an unreasonable refusal under section 3311, Rev. Stat. of Mo. 1929 (Mo. Stat. Ann. § 3311, p. 8246), that no compensation is recoverable. Section 3311 provides:

"No compensation shall be payable for the death or disability of an employee, if and in so far as the same may be caused, continued or aggravated by an unreasonable refusal to submit to any medical or surgical treatment or operation, the risk of which is, in the opinion of the commission, inconsiderable in view of the seriousness of the injury."

The reasonableness of the refusal of an injured employee to submit to any medical or surgical treatment or operation is a question of fact which must be determined by the commission as the trier of facts, and the commission's conclusion, when supported by competent evidence, is binding upon this court the same as the determination of any other question of fact. State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.(2d) 1008. In reviewing an award of the commission we, therefore, consider the evidence in the light most favorable to the award, together with all the reasonable inferences which may be drawn therefrom. Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 331 Mo. 169, 52 S.W.(2d) 1019.

The employer and insurer set up the defense that the employee had unreasonably refused medical treatment and therefore the burden of proof as to that issue is upon them.

On the subject of Cuchi's refusing antitetanic serum treatment, Dr. Vosburgh, to whose office Cuchi was taken immediately after he had met with his injury, testified that he offered twice to administer antitetanic serum to Cuchi but that Cuchi refused it. He was asked the question: "Did you tell him the possibility of his developing tetanus from this injury?" and he answered, "Yes, on previous occasions and on this occasion. He had had tetanus antitoxin twice before and had refused it twice before."

Dr. St. John, who was at Dr. Vosburgh's office and aided him in dressing Cuchi's wounds, testified that "we advised him to take antitetanic serum and he declined. He said he did not want it. `It would make me sicker than I am.' That was his statement. We explained he should take this serum, this shot in the arm to prevent him having lockjaw or convulsions. He said he knew what that was. He had taken it before and it had make him sick and he was sicker than his wound made him and he refused to take it, and it was so noted in the history at that time."

Several physicians testified that the injection of antitetanic serum as a preventative involves no risk or danger; that, however, there might be a serum sickness as a result therefrom, but that this sickness usually lasted but a short time. These doctors further testified that in their personal experience they had never seen a case where tetanus had developed where the serum had been injected as a preventative within twenty-four hours after the accident. They admitted, however, that there had been some cases reported where tetanus had developed after the prompt injection of the serum.

The record discloses that Cuchi was an Italian immigrant whose knowledge of the English language was limited. According to the witness named Hanson "you could tell him in working, you could explain it and he would understand enough to carry out orders, in his ordinary job." John Borrosa, who was a boarder at...