Doughton v. Marland Refining Co.

• Decision Date: 28 September 1932
• Docket Number: No. 31652.,31652.
• Citation: 53 S.W.2d 236
• Parties: FLORENCE S. DOUGHTON, Appellant, v. MARLAND REFINING COMPANY, Employer, UNITED STATES FIDELITY and GUARANTY COMPANY, its Insurer, and PEERLESS REPAIR COMPANY, Employer, and EMPLOYERS' CASUALTY COMPANY, its Insurer.
• Court: Missouri Supreme Court

53 S.W.2d 236

FLORENCE S. DOUGHTON, Appellant, v. MARLAND REFINING COMPANY, Employer, UNITED STATES FIDELITY and GUARANTY COMPANY, its Insurer, and PEERLESS REPAIR COMPANY, Employer, and EMPLOYERS' CASUALTY COMPANY, its Insurer.

No. 31652.

Supreme Court of Missouri, Division Two.

September 28, 1932.

Appeal from Buchanan Circuit Court. — Hon. Joseph V. Gaddy. Judge.

AFFIRMED.

James F. Gelty, Henry L. Jost and Mord M. Bogie for appellant.

(1) The appellant made out a prima-facie case before the Commission that Lewis Doughton, deceased: First: Received an injury in an automobile accident on January 10, 1929, while going to St. Joseph, Missouri, for the Marland Refining Company as the representative of the Peerless Repair Company. Second: That Lewis Doughton died on January 18, 1929, from injuries received in said automobile accident. Schulz v. Ry. Co., 4 S.W. (2d) 768; Swearingen v. Railroad, 221 Mo. 659: Sharp v. Ry. Co., 213 Mo. 531: McDonald v. Railroad, 219 Mo. 481; DeMaet v. Moving Co., 231 Mo. 619; Kuenzel v. St. Louis, 278 Mo. 280; Solomon v. L. & P. Co., 303 Mo. 640; O'Leary v. Steel Co., 303 Mo. 363; Wahling v. Grocery Co., 375 Mo. 677. (2) The accident and injury may be proven either by direct or circumstantial evidence. Fritz v. Railway Co., 243 Mo. 62; Rice v. McFarland, 41 Mo. App. 489; Daly v. Pryor, 197 Mo. App. 584; Farber v. Ins. Co., 215 Mo. App. 564; Sexton v. Met. Ry. Co., 245 Mo. 254; Freeman v. K.C. Pub. Serv. Co., 30 S.W. (2d) 197; Hatchett v. Ry. Co., 175 S.W. 878. (3) Injuries sustained in an accident and similar facts need not be proven by direct evidence, but may be proven by circumstantial evidence. Muehlebach v. Railroad Co., 166 Mo. App. 305; Veatch v. Railroad Co., 145 Mo. App. 232; Johnson v. Ry. Co., 130 S.W. 416; Pidgeon v. Rys. Co., 154 Mo. App. 20; Gerber v. Kansas City, 304 Mo. 157; Smith v. Webster County, 256 S.W. 829; Rine v. Ry. Co., 100 Mo. 228. (4) That the decreased immediately after the accident said he was not hurt is not conclusive against claimant. Such expression is no more than a circumstance in the case. Ginter v. O'Donoghue, 179 S.W. 735; Graber v. Wells, 7 S.W. (2d) 719; Runyan v. Marceline C. & M. Co., 186 Mo. App. 707. (5) The testimony of Dr. Gloyne, the attending physician, was competent and proved that death of the deceased was caused by a blow received in the accident. Schulz v. Ry. Co., 4 S.W. (2d) 768; O'Leary v. Steel Co., 303 Mo. 372; Floyd v. Mfg. Co., 46 S.W. (2d) 255. (6) All doubt should be resolved in favor of employee. Betz v. Telephone Co., 224 Mo. App. 1004; Pruitt v. Harker, 43 S.W. (2d) 773; Schaefer v. Packing Co., 38 S.W. (2d) 303.

Hackney & Welch for respondents.

(1) Whether appellant made a prima-facie case before the Commission is immaterial. Respondent denied that the deceased was injured in the accident and claimed that a cancerous tumor on the brain was the sole cause of death. The Commission found that the accident did not cause death. Such finding is equivalent to a special verdict, and the award denying compensation has the same effect as a jury verdict in an ordinary law action — and not (as claimed by appellant) the effect of a demurrer, Sec. 44, Compensation Act; Leilich v. Chevrolet Motor Co., 40 S.W. (2d) 601; Morris v. Dexter Mfg. Co., 40 S.W. (2d) 750; Miller v. St. Joe Transfer Co., 32 S.W. (2d) 449; Waring v. Met. Life Ins. Co., 39 S.W. (2d) 418; Cotter v. Coal Co., 14 S.W. (2d) 660; Hammock v. Lumber Co., 30 S.W. (2d) 660; Wheat v. Whitney, 34 S.W. (2d) 158; Kinder v. Hannibal Co., 18 S.W. (2d) 91; State ex rel. Bruner v. Mo. Comm., 8 S.W. (2d) 899; Gannon v. Gas Co., 145 Mo. 519; American Packing Co. v. Ins. Co., 35 S.W. (2d) 958; Sing v. Railroad, 30 S.W. (2d) 37. (2) In view of the positive finding that the accident did not cause death and the general award by the full Commission finding the issues for the employer, it is immaterial whether there was "sufficient competent evidence to base a finding that Louis Doughton received an injury in the accident of January 10, 1929." However, if the award had been for the claimant, the employer could on appeal have successfully urged that claimant's own evidence, by which she was bound, proved that deceased was not injured in the automobile collision. (a) Claimant was bound by the uncontradicted testimony of her own witness that the deceased sustained no injury in the accident. Smith v. Met. St. Ry. Co., 201 S.W. 569; Rodan v. Ry Co., 207 Mo. 408; Manchester v. Harrington, 199 S.W. 248. (b) Claimant's evidence that a slight bruise was discovered on deceased's head more than 12 hours after the accident has no probative value because its connection with the accident is wholly speculative and conjectural. Rogers v. Packing Co., 180 Mo. App. 236; Wright v. Ins. Co., 188 Mo. App. 463; Warner v. Railway, 178 Mo. 134. (3) The testimony that deceased long after the collision told his wife and his doctor that his head was thrown through the windshield was incompetent and has no probative value. Freeman v. Ins. Co., 195 S.W. 545; Hutchinson v. Railway, 288 S.W. 94. (3) The Commission's finding that the accident did not cause death and the general award finding the issues for the employer will not be disturbed on appeal, because there was abundant evidence that Doughton died solely as the result of a brain tumor. Freeman v. Ins. Co., supra; Wright v. Ins. Co., supra; Warner v. Railway, supra.

COOLEY, C.

This is an appeal by claimant Florence S. Doughton, widow of Lewis Doughton deceased, late of Kansas City, Missouri, from the judgment of the Circuit Court of Buchanan County affirming an award made by the Workmen's Compensation Commission which denied Mrs. Doughton's claim for compensation for the death of her husband. Doughton died January 18, 1929. It is claimed his death resulted from injuries received in an automobile collision which occurred January 10, 1929, claimant's theory being that Doughton was thrown against the windshield of the car, his head striking and breaking the glass, producing an injury to the brain which caused his death. The widow filed with the Workmen's Compensation Commission her claim for compensation, alleging that her husband died as the result of injuries received while in the performance of his duty as servant of both the Peerless Repair Company and the Marland Refining Company. The claim was first heard by Commissioner James who, after hearing the evidence, made an award on October 24, 1930, denying compensation. At the request of claimant the claim was thereafter submitted to and heard by the whole Commission which, on January 5, 1931, made an award denying Compensation and affirming the award theretofore made by Commissioner James. On appeal to the circuit court the award of the Commission was affirmed and claimant appealed to this court. The amount claimed, $8,800, gives this court jurisdiction.

Omitting caption and formal portions, Commissioner James' award was as follows:

"The above parties having submitted their disagreement or claim for compensation for the above accident to the undersigned member of the Missouri Workmen's Compensation Commission, and after hearing the parties at issue, their representatives, witnesses and evidence, the undersigned hereby finds in favor of the above employer and insurer and against the above defendant and awards no compensation for the above accident.

"For the reason that dependent failed to prove that Lewis Doughton died as a result of injuries alleged to have been received on January 10, 1930 (1929?), while he was in the course of his employment with the Peerless Repair Company and compensation against the Marland Refining Company and their insurers is denied for the reason that Lewis Doughton was not employed by the Marland Refining Company on January 10, 1930 (1929?).

"Attached hereto are the findings of fact and rulings of law made in connection herewith."

The attached findings of fact were in the form of questions and answers. After finding that there was an accident January 10, 1929, near St. Joseph, Missouri; that the employee was then in the employ of Peerless Repair Company; that the accident arose out of and in the course of the employment, both employer and employee having elected to accept the Compensation Act, and that the employer's liability was insured by the Employers' Casualty Company, the Commissioner found: "11. Did accident cause death? No." After the foregoing the following appears in narrative form under the caption "statement of facts and rulings of law."

"On January 10, 1929, Lewis Doughton was employed by Peerless Repair Company at a salary of $44 per week. On said date the Peerless Repair Company sent Doughton to St. Joseph, Missouri, to make an inspection of the Marlin (Marland?) Refining Company plant. While en route to St. Joseph the car in which Doughton was riding collided with another car about eight miles south of St. Joseph, Missouri.

"Florence S. Doughton, widow of Lewis Doughton, makes claim for compensation alleging that Lewis Doughton died on January 18, 1929, as a result of injuries received in the accident of January 10, 1929.

"The claimant failed to prove that Lewis Doughton died from injuries received on January 10, 1929, and further there is not sufficient competent evidence to base a finding that Lewis Doughton received an injury in the accident of January 10, 1929, and compensation is denied.

"The evidence shows and this commission finds that Lewis Doughton was not employed by the Marlin (Marland?) Refining Company on January 10, 1929, and the claimant is awarded nothing by this proceeding and the Marlin (Marland?) Refining Company and the United States Fidelity and Guaranty Company their insurers, are discharged of and from all liability on the cause."

The award of the full Commission, omitting caption and signatures, was as follows:

"The above parties having submitted their disagreement or claim for compensation for the above accident to the...