DeLille v. Holton-Seelye Co., 32845.

• Decision Date: 20 December 1933
• Docket Number: No. 32845.,32845.
• Parties: ARTHUR DeLILLE, Dependent of PAUL DeLILLE, Deceased, Appellant, v. HOLTON-SEELYE COMPANY and GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CORPORATION, Insurer.
• Court: Missouri Supreme Court

66 S.W.2d 834

ARTHUR DeLILLE, Dependent of PAUL DeLILLE, Deceased, Appellant, v. HOLTON-SEELYE COMPANY and GENERAL ACCIDENT, FIRE AND LIFE ASSURANCE CORPORATION, Insurer.

No. 32845.

Supreme Court of Missouri.

Division Two, December 20, 1933.

Appeal from Circuit Court of City of St. Louis. — Hon. Clyde C. Beck, Judge.

AFFIRMED.

Joseph H. Brogan and Holland R. Polak for appellant.

Aggravation of old injury or preexisting condition precipitating fatal result, compensable. In Harder v. Thrift Const. Co., 53 S.W. (2d) 34, the St. Louis Court of Appeals in affirming an award of compensation. Bongilatle v. H. Wales Lines Co., 97 Conn. 548, 117 Atl. 696; Indianapolis Abbatoir Co. v. Coleman, 65 Ind. App. 369, 117 N.E. 502; Hanson v. Dickinson, 188 Iowa, 728, 176 N.W. 823; Employers' Liability Assur. Corp. v. Gardner, 204 Ky. 216, 263 S.W. 743; Durrett v. Woods, 155 La. 533, 99 So. 430; Dickson Const. & Repair Co. v. Beasley, 146 Md. 568, 126 Atl. 907; Crowley v. City of Lowell, 223 Mass. 288, 111 N.E. 786; Walker v. Minn. Steel Co., 167 Minn. 475, 209 N.W. 635; Gilcrest Lumber Co. v. Rengler, 109 Neb. 246 190 N.W. 578, 28 A.L.R. 200; N.Y. Live Poultry Trucking Co. v. Schwartz, 5 N.J. Misc. 178, 135 Atl. 775; Finkelday v. Henry Heide, Inc., 193 App. Div. 338, 183 N.Y. Supp. 912; affirmed 230 N.Y. 598, 130 N.E. 909; Pace v. North Dakota Work. Comp. Bureau, 51 N.D. 815, 201 N.W. 348; McCarthy v. General Elec. Co., 293 Pa. 448, 143 Atl. 116, 60 A.L.R. 1288; Pinyon Queen Mining Co. v. Industrial Commission, 59 Utah, 402, 204 Pac. 323; Kiser on Workmen's Compensation Acts; 40 Cyc., sec. 58, p. 69, and cases cited in text and subsequent annotations. The English definition of accident, as used in this act has already been adopted in this State: "As these acts are construed any untoward and unexpected event is an accident. Fenton v. Thorley & Co. (1913), A.C. 443. That is, `accident' as used in its popular sense. Boody v. Company, 77 N.H. 208, 212, 213, 90 Atl. 859, 862." The cases in this country, under similar statutory provisions, are in the main in harmony with the English rule heretofore quoted. Patrick v. Ham, 119 Me. 510, 111 Atl. 912, 13 A.L.R. 427; Browns' Case, 123 Me. 424, 123 Atl. 421; Winter v. Company, 88 N.J.L. 401, 96 Atl. 360; Tracey v. Company, 270 Pa. 65, 112 Atl. 740; Gilliland v. Company, 104 Kan. 771, 180 Pac. 793; Larke v. Company, 90 Conn. 303. 97 Atl. 320, L.R.A. 1916E, 584; Jordan v. Company, 230 N.Y. 522, 130 N.E. 634; Zappala v. Commission, 82 Wash. 316, 144 Pac. 54, L.R.A. 1916A, 295; Poccardi v. Commission, 75 W. Va. 542, 84 S.E. 242, L.R.A. 1916A, 299. As stated in some of the cases, it is no less an accident when a man suddenly breaks down than when there is a like mishap to the machine he is operating. Nor is it a defense that the workman had some predisposing physical weakness, but for which he would not have broken down. If the employment was the cause of the collapse, in the sense that but for the work he was doing it would not have occurred when it did, the injury arises out of the employment. Patrick v. Ham, supra; Brightman's Case, 220 Mass. 17, 107 N.E. 527, L.R.A. 1916A, 321; Springfield, etc, v. Commission, 300 Ill. 28, 132 N.E. 752; Winter v. Company, 88 N.J.L. 401, 96 Atl. 360; Gilliland v. Company, 104 Kan. 771, 180 Pac. 793; Haskell, etc., Co. v. Brown, 67 Ind. App. 178, 117 N.E. 555; F.H. Gilcrest, etc., Co. v. Rengler, 109 Neb. 246, 190 N.W. 578, 28 A.L.R. 200; Beck Mining Co. v. Commission, 88 Okl. 34, 211 Pac. 69, 28 A.L.R. 197; Clover, etc., Co. v. Hughes (1910), A.C. 242. Other authorities are collected in 28 A.L.R. 200.

Allen, Moser & Marsalek for respondents.

(1) The findings of the commission, stated as part of its final award, that the employee's death was the result of disease and was neither caused nor aggravated by an accident arising out of and in the court of his employment; that at the time he fell over he was not subjected to any unusual strain but was doing the ordinary work of a carpenter and that his diseased condition had reached such a stage that death was liable to occur at any time, were findings of fact and as such are binding on appeal. Sec. 3342, R.S. 1929; Leilich v. Chevrolet Motor Co., 40 S.W. (2d) 604; Doughton v. Marland Ref. Co., 53 S.W. (2d) 236. (a) The commission's said finding has the force and effect of a jury's verdict, and must be sustained on appeal if the evidence in the record, when viewed in the light most favorable to the successful party, tends to support such findings. The evidence in the present record is ample to support the conclusions of fact which the commission reached in its final award. Doughton v. Marland Ref. Co., supra; State ex rel. Brewen-Clark Syrup Co. v. Workmen's Comp. Comm., 320 Mo. 893; Metting v. Lehr Const. Co., 225 Mo. App. 1152; Waring v. Met. Life Ins. Co., 225 Mo. App. 600. (2) There are no facts in the commission's findings to support appellant's theory that the normal exertion of his employment caused or contributed to his death. It is to be presumed that the commission found every fact of which there was evidence. State ex rel. v. Haid, 51 S.W. (2d) 1009. (3) Death, caused by a preexisting disease, occurring while the employee is at work, is not compensable under our act when the employee was engaged merely in the ordinary discharge of his ordinary duties and he was not being subjected to any unusual exertion or strain. Under such circumstances, no "accident" occurred and the death did not arise "out of the employment." Sec. 3301, R.S. 1929; Laws 1931, p. 383; Mooney v. Yeagle, 164 Atl. 82; O'Neill v. Lehigh Coal & Nav. Co., 165 Atl. 60; Lacey v. Washburn & Williams Co., 164 Atl. 724; Jacub v. Industrial Commission, 123 N.E. 263; Martin v. State Comp. Comm., 107 W. Va. 583, 149 S.E. 824; Phila. & R. Coal & Iron Co. v. Ind. Comm., 334 Ill. 58, 165 N.E. 161; Stombaugh v. Peerless Wire Fence Co., 198 Mich. 445, 164 N.W. 537; Spence v. Baird, 49 Scot. L.R. 278, 5 B.W.C.C. 542; Johnson v. Mary Charlotte Min. Co., 199 Mich. 218, 165 N.W. 650; Kerr v. Ritchies, S.C. 613, 50 Scot. L.R. 434, 6 B.W.C.C. 419; Maxwell v. Ruabon Coal Co., 142 L.T. Jc. (Eng.) 146, 10 B.W.C.C. 138; Burns' Case, 266 Mass. 516, 165 N.E. 670; Eaton v. Proctor, 159 Atl. 297; Standard Water Systems Co. v. Ort, 166 Atl. 335; Wahlig v. Grocer Co., 29 S.W. (2d) 128; De Moss v. Evens & Howard F.B. Co., 225 Mo. App. 473, 37 S.W. (2d) 961; Ind. Comm. of Ohio v. Franken, 185 N.E. 200; McNamara v. Ind. Acc. Comm., 20 Pac. (2d) 53.

WESTHUES, C.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, Missouri, affirming an award of no compensation made by the Compensation Commission. Deceased, father of appellant, had been employed by respondent as a carpenter. He died suddenly while at work on August 28, 1931.

The contention of appellant is that the award of the commission was not supported by evidence and that the commission's order was based on an erroneous conclusion of law. The order of the commission reads as follows:

"`On review award dated March 29, 1932, is hereby reversed and set aside. We find from the evidence that employee's death was the result of disease and was neither caused nor aggravated by an accident arising out of and in the course of his employment on August 28, 1931. At the time employee fell over he was not subjected to any unusual strain, but he was doing the ordinary work incidental to his work as a carpenter. It is also our opinion from the evidence that the deceased's condition had reached such a stage that death was liable to occur at any time. Compensation should not be awarded where employee has a chronic diseased condition which has reached such a stage that death is liable to ensue at any time, and death came while he was doing the ordinary work of his employment. It is our opinion that that is what occurred in the case at bar, and compensation must be denied.'"

[1] Section 3305(b), Revised Statutes 1929, as amended by Laws of 1931, page 383, subdivision (b), reads in part as follows:

"The word `accident' as used in this chapter shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury. The terms `injury' and `personal injuries' shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom. The said terms shall in no case except as hereinafter provided be construed to include occupational disease in any form, nor shall they be construed to include any contagious or infectious disease contracted during the course of the employment, nor shall they include death due to natural causes occurring while the workman is at work. `Death' when mentioned as a basis for the right to compensation means only death resulting from such violence and its resultant effects occurring within three hundred weeks after the accident." (Italics ours.)

The Compensation Commission evidently based its order denying compensation on that part of the section italicized. If the evidence in the record justified the finding of fact that deceased's "death was the result of disease and was neither caused or aggravated by an accident arising out of and in the course of his employment" then we are not authorized to disturb the award.

[2] There is an abundance of evidence in the record to the effect that deceased was apparently in good health up to the very moment of his death. Death came almost instantaneous. Witnesses testified deceased had gone about his work in his usual manner, had not complained of feeling badly and a few moments before he died had been asked if he wanted a drink of water. Deceased smiled and answered in the negative. Immediately prior to his death deceased was in the act of sawing a piece of lumber lengthwise with a ripsaw.

The cause of death,...