Decker v. Raymond Concrete Pile Co.

• Decision Date: 07 May 1935
• Parties: Emma Decker v. Raymond Concrete Pile Company, Employer, and the Ocean Accident and Guarantee Corporation, Limited, Insurer, Appellants
• Court: Missouri Supreme Court

82 S.W.2d 267

336 Mo. 1116

Emma Decker v. Raymond Concrete Pile Company, Employer, and the Ocean Accident and Guarantee Corporation, Limited, Insurer, Appellants

Supreme Court of Missouri

May 7, 1935

Appeal from Jackson Circuit Court; Hon. Daniel E. Bird Judge.

Reversed and remanded (with directions).

Henry S. Conrad, L. E. Durham and Hale Houts for appellants.

(1) The court erred in reversing the award of the commission. The commission's finding and award that the death of deceased was the result of causes other than the claimed accident and was not the result of an accident growing out of the course of deceased's employment, and that appellants were not liable for compensation, were amply supported by the evidence. The award was supported by the findings and the findings and award were conclusive and binding upon the circuit court. Sec. 3342, R. S. 1929; Elsas v. Elevator Co., 330 Mo. 603; Shroyer v. Commission Co., 332 Mo. 1223; State ex rel. Probst v. Haid, 62 S.W.2d 872; Lamkins v. Range Corp., 42 S.W.2d 943; Messenger v. Equipment Co., 211 Mo. 137; Conduit v. Gas & Electric Co., 226 Mo. 142; Andrus v Accident Assn., 283 Mo. 445; Doughton v. Marland Refining Co., 331 Mo. 288; Gillick v. Fruin-Colnon Const. Co., 65 S.W.2d 927; Tassi v. Fish Co., 56 S.W.2d 797; Keithley v. Woods Bros. Const. Co., 56 S.W.2d 628; Bender v. Supply Co., 57 S.W.2d 707; Freese v. Pub. Serv. Co., 58 S.W.2d 758; Wade v Markham, 227 Mo.App. 726; Weiler v. Lime Co., 64 S.W.2d 125; Shumate v. Roofing Corp., 66 S.W.2d 949; Aldrich v. Packing Co., 69 S.W.2d 1101. (2) The court erred in undertaking to direct the commission to enter an award for claimant. Sec. 3342, R. S. 1929; Schulz v. A. & P. Tea Co., 56 S.W.2d 129; Russell v. Dry Goods Co., 332 Mo. 654; Burgstrand v. Crowe Coal Co., 62 S.W.2d 409; Kirstanik v. Chevrolet Motor Co., 70 S.W.2d 894.

Hyde & Fischer, Hook & Sprinkle and Paul C. Sprinkle for respondent.

Sec. 3374, R. S. 1929; Rue v. Lead Co., 38 S.W.2d 487; Keithley v. Engineering Co., 49 S.W.2d 299; Leilich v. Motor Co., 40 S.W.2d 604; Betz v. Telephone Co., 24 S.W.2d 228; Shout v. Const. Co., 41 S.W.2d 631; Ransdell v. Shoe Co., 44 S.W.2d 2; Carrigan v. Radio Co., 44 S.W.2d 247; Sawtell v. Stern Bros., 44 S.W.2d 269; Elsas v. Elevator Co., 50 S.W.2d 130; Lovell v. Williams Bros., 50 S.W.2d 713; Schulz v. Tea Co., 56 S.W.2d 126; Wall v. Lemons, 51 S.W.2d 199; Gillmore v. Ring Const. Co., 61 S.W.2d 766; Allison v. Const. Co., 43 S.W.2d 1064; Jackson v. Const. Co., 59 S.W.2d 708; Zimmerman v. Lumber Co., 56 S.W.2d 611; DeMoss v. Brick Co., 57 S.W.2d 720; Herndon v. Const. Co., 59 S.W.2d 75; Harder v. Const. Co., 53 S.W.2d 37; Adams v. Lilbourn Grain Co., 48 S.W.2d 147; Kristanik v. Motor Co., 70 S.W.2d 895.

Westhues, C. Cooley and Bohling, CC., concur.

OPINION

WESTHUES

Respondent, as the widow of Ray Decker, filed a claim with the Workmen's Compensation Commission seeking to recover compensation for the death of her husband. The commission heard the case and denied respondent compensation on the theory that the death of Decker was not the result of an accident arising out of and in the course of his employment, but was entirely due to other causes. Respondent appealed to the Circuit Court of Jackson County where, by a judgment entered, the award of the commission was set aside and the commission ordered to enter an award allowing compensation. From this judgment defendants appealed.

If compensation were allowed the amount would exceed $ 7,500 hence appellate jurisdiction in this court. The evidence disclosed that during the month of July, 1931, and prior thereto, deceased was employed by the Concrete Pile Company. On July 7, deceased, in line with his regular duties, used an acetylene torch to melt metal. This work was performed in the open air near the Missouri River in Kansas City, Missouri. That same evening deceased became ill and called a doctor. On examination, by a physician, it was disclosed that deceased was suffering with edema of the lungs. A later examination also disclosed that deceased was then suffering, and had prior thereto suffered with heart trouble, referred to by the physician as myocarditis. The physician in charge testified that he made an examination to determine the cause of the edema of the lungs. After some questioning the patient informed him that he had inhaled and smelled gas which produced a headache and that a leak existed in the acetylene tank. The doctor testified that in his opinion the edema was caused by the inhaling of poisonous gas fumes. Deceased spent a week or more in a hospital, but later went to work for a few days. A claim for compensation was made, allowed and paid. On the 29th day of October of the same year deceased was again taken to a hospital where he died the following day. Claimant's contention before the commission was that death was at least partially due to the inhaling of gas, by deceased, on July 7, Defendants' contention was that death was solely due to deceased's heart condition. Each side offered evidence in an endeavor to substantiate their respective theories. The commission found, as indicated, that death was the result of other causes and not the result of an accident. The circuit court set aside the order of the commission on the theory that the record did not contain sufficient, competent evidence to sustain the award.

The sole question before us is whether the trial court was justified in setting aside the award made. An award of the Compensation Commission is in law regarded as a special verdict and if supported by substantial, competent evidence it must prevail. [Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601, l. c. 604 (4, 5); Jackson v. Curtiss-Wright Airplane Co., 334 Mo. 805, 68 S.W.2d 715, l. c. 719.] The Compensation Act has been and should be liberally construed. If doubt arises it should be construed in favor of the employee. [Betz v. Columbia Tel. Co. (Mo. App.), 24 S.W.2d 224, l. c. 228 (2-8); Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769, l. c. 773 (4, 5); Schulz v. Great A. & Pac. Tea Co., 331 Mo. 616, 56 S.W.2d 126, l. c. 128 (2, 3).]

With the above rules of law in mind let us examine the record to determine the question of the sufficiency of the evidence to sustain the award. The record discloses, and we will assume for the purpose of this case, that claimant adduced substantial, competent evidence to support an award of compensation. It will, therefore, not be necessary to review at length the evidence introduced on behalf of respondent. Appellants' witness, Dr. Black, examined deceased, August 11, 1931, and obtained from him a history of his illness. This witness testified in part as follows:

"Q. All right -- now go ahead and tell the Commissioner what conclusions you came to as result of your examination which you made August 11th. A. Well, the way I concluded the man was suffering with a heart condition; at the time I saw him, he had a very definite evidence, both as to physical findings, together with history he gave which was typical history we find in heart cases; had shortness of breath and expectoration of bloody frothy spectum happens daily many times -- very frequently I will say, they have heart disease and it's looked upon -- at least I look upon it -- as some of the premonitory or first findings that you find in the case of heart decompensation where the heart is lagging or failing, little shortness of breath when he exercises and expectoration of bloody frothy sputum or saliva which is perhaps result of pulmonary edema which you find very frequently as early sign of cardiac decompensation; this man had this clogging or percussion of the chest; he had, as I have made report, enlargement of heart to right . . ."

"Q. Now, was it evident to you from that examination that he must have been suffering from this heart trouble for some considerable period of time? A. Yes, sir, from physical findings increase in the size of the heart both on percussion and X-rays, these things don't happen over night or few days, heart had been repeatedly perhaps put to overwork and exertion and gradually had enlarged.

"Q. A long developmental process? A. Over long period of time.

"Q. About how long, months or years? A. Well rather difficult to say but certainly over period of at least months, perhaps years, those things don't happen in a few weeks or few days.

"Q. In case of a heart of that character do patients frequently come down with a heart attack with symptoms such as he outlined to you as having experienced on July 7th? A. Yes, very frequently, very common history elicited from patient with heart condition as this man had."

On cross-examination he testified:

"Q. Can you assume a man did have condition of pulmonary edema, or he had had it prior to your examination to the extent you found some evidence of it there? A. Yes, sir.

"Q. Don't you know that pulmonary edema is one of the primary results of inhalation of poisonous gas? A. Well, can you specify the gas?

"Q. Carbon monoxide, or any irritant gas? A. Well, of course if in sufficient concentration perhaps would produce irritating effect.

"Q. It is a fact will produce -- A. If in sufficient concentration.

"Q. And man gave history of having inhaled some gas? A. He did.

"Q. Then, how can you say as a positive fact that this gas had nothing to do with pulmonary edema? A. From history; he disclosed how he inhaled it and amount of gas and his location -- he was out of doors -- I just can't conceive of it being concentrated enough to produce any irritating effect."

Dr. Davis, who had had considerable experience with acetylene gas, testified as follows:

"Q. During the war, state what connections you had with it. A. It was after the war; I had charge of the medical work down at...