Evans v. Chevrolet Motor Co.

• Citation: 105 S.W.2d 1081
• Decision Date: 01 June 1937
• Docket Number: No. 24611.,24611.
• Parties: WADIES EVANS, EMPLOYEE, RESPONDENT, v. CHEVROLET MOTOR COMPANY, A CORPORATION, EMPLOYER, AND SELF-INSURER, APPELLANT.
• Court: Court of Appeal of Missouri (US)

105 S.W.2d 1081

WADIES EVANS, EMPLOYEE, RESPONDENT, v. CHEVROLET MOTOR COMPANY, A CORPORATION, EMPLOYER, AND SELF-INSURER, APPELLANT.

No. 24611.

St. Louis Court of Appeals. Missouri.

Opinion filed June 1, 1937.

Motion for Rehearing Overruled June 15, 1937.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Eugene J. Sartorius, Judge.

AFFIRMED.

Hay & Flanagan and Robert W. Herr for respondent.

(1) The findings and award of the Workmen's Compensation Commission are conclusive and binding on appeal. Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W. (2d) 551; Schroyer v. Missouri Live Stock Commission Co., 332 Mo. 1219, 61 S.W. (2d) 713; Crutcher v. Curtiss-Robertson Airplane Co., 331 Mo. 169, 52 S.W. (2d) 1019; Elihinger v. Wolf House Furnishing Co., 337 Mo. 9, 85 S.W. (2d) 11; Wilson v. Brownfield Construction Co., 228 Mo. App. 898, 74 S.W. (2d) 377; Huelsman v. Stute (Mo. App.), 28 S.W. (2d) 387; Authorities, Point 1 (1), supra. (2) Abstract, pages 8-12, 14, 15, 22-24, 26, 27, 33, 34, 37, 41, 47, 48, 51, 52, 56; Secs. 3301, 3305 (b), R.S. Mo. 1929: Section 3 (4), Chapter 586, Laws of 1917, as amended, State of California; Marsh v. Industrial Accident Commission (Cal.), 18 Pac. (2d) 933; Associated Indemnity Corporation v. Industrial Accident Commission, 124 Cal. App. 378, 12 Pac. (2d) 1075, l.c. 1076; 71 C.J., 599; Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W. (2d) 551; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W. (2d) 128, l.c. 130; Authorities, Point (2) (1), supra: Secs. 13234, 13252, R.S. 1929: Smith v. Harbison-Walker Refractories Co., (No. 34,329, decided by this Court December 14, 1936, and not yet reported). Now reported in 100 S.W. (2d) 909. The Workmen's Compensation Act should be construed to extend its benefits to the largest possible class of employees and to restrict those excluded to the smallest possible class. Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 73 S.W. (2d) 1011: Pruitt v. Harker, 328 Mo. 1200, 43 S.W. (2d) 769; State ex rel. Kenney v. Missouri Workmen's Compensation Commission, 225 Mo. App. 501, 40 S.W. (2d) 503; Plank v. R.J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W. (2d) 328: Wagner Electric Co. v. Snowden, 38 Fed. (2d) 599; Wolf v. Mallinekrodt Chemical Co., 336 Mo. 746, 81 S.W. (2d) 323; Ford Motor Co. v. Brady, 73 Fed. (2d) 248; Smith v. Harbison-Walker Refractories Co. (No. 34,329, decided by this Court December 14, 1936, and not yet reported). The Workmen's Compensation Act is to be liberally construed, and any doubts relative to the right to compensation should be decided in favor of the injured employee. Schultz v. Great Atl. and Pac. Tea Co., 331 Mo. 616, 56 S.W. (2d) 126; Pruitt v. Harker, 328 Mo. 1200, 43 S.W. (2d) 769; Betz v. Columbia Tel. Co., 224 Mo. App. 1004, 24 S.W. (2d) 224. (3) Giving of written notice of injury is not essential where the employer admittedly had actual knowledge of such injury. Abstract, pp. 5, 6, 71-74; Newman v. Rice-Stix D.G. Co., 335 Mo. 572, 73 S.W. (2d) 264; McFall v. Barton-Mansfield Co., 333 Mo. 110, 61 S.W. (2d) 911; Wall v. Lemmons, 227 Mo. App. 246, 51 S.W. (2d) 194; Abstract, pp. 5, 6; State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W. (2d) 1008; Abstract, pp. 3, 4. Notice of an injury need not be given under the Compensation Act until such injury has become reasonably manifest. State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W. (2d) 1008. (4) Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 73 S.W. (2d) 1011; Garnant v. Shell Pet. Corp., 228 Mo. App. 256, 65 S.W. (2d) 1052; McComosh v. Shapleigh Hardware Co. (Mo. App.), 40 S.W. (2d) 728; O'Malley v. Mack International Truck Co., 225 Mo. App. 1, 31 S.W. (2d) 554. (5) State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W. (2d) 1008; Buchanan v. Nicozisis (Mo. App.), 78 S.W. (2d) 492.

McCarthy, Morris, Smith & Sparrow for appellant.

Warren E. Talcott of counsel.

(1) Respondent's evidence failed to bring the case within the catagory of an industrial and occupational disease because he did not produce testimony showing a disease incidental or peculiar to the work or process carried on in which he was employed. Wolff v. Mallinckrodt, 336 Mo. 746, 81 S.W. (2d) 323; Maupin v. American Cigar Co., 84 S.W. (2d) 218; Carter v. Priebe, 77 S.W. (2d) 171; Downey v. K.C. Gas Co., 92 S.W. (2d) 584, (l.c.) (2) There was a total failure of proof that respondent's condition arose out of and in the course of his employment. DeMoss v. Evens & Howard, 225 Mo. App. 473, 37 S.W. (2d) 961; Lanahan v. Hydraulic Press Brick, 55 S.W. (2d) 327; Stone v. Blackmer-Post, 224 Mo. App. 319, 27 S.W. (2d) 459. (3) The condition of the record and character of the controversy in this case called for some adequate findings of fact and rulings of law in order that the award might be comprehensible to a person of ordinary understanding. Powell v. Ford Motor Co., 78 S.W. (2d) 572; Adams v. Lilbourn Grain Co., 226 Mo. App. 1030, 48 S.W. (2d) 147. (4) Having asserted in the "Findings of Fact" that respondent's condition was due to approximately two hours' exposure each day to the inhalation of mist over a period of ten months and that respondent had given appellant no notice thereof; the "Rulings of Law" that appellant was not prejudiced thereby become untenable. Sec. 3336, R.S. Mo. 1929. (5) At most respondent merely proved that a latent tubercular condition might have become active during a period while he was in the employ of appellant but not necessarily during working hours. This is merely piling inference on inference and is insufficient to support an award. State ex rel. v. Haid, 325 Mo. 107, 28 S.W. (2d) 97; Bollinger v. Frisco, 67 S.W. (2d) 985; Freeman v. Public Service, 30 S.W. (2d) 176; Harding v. Federal Ins. Co., 34 S.W. (2d) 198; Hasenjaeger v. M.K. & T., 227 Mo. App. 413, 53 S.W. (2d) 1083. (6) Causal connection must be established between condition under which work was required to be performed and resulting injury; if this is left to speculation, surmise, conjecture or supposition, respondent has failed in his proof. Cable v. Frisco, 38 S.W. (2d) 1031, l.c. 1036; State v. Haid, 325 Mo. 107, 28 S.W. (2d) 97; Karlin v. Public Service Co., 30 S.W. (2d) 1034; Strother v. C.B. & Q. Ry. Co., 188 S.W. 1102; Gluck v. Abe, 328 Mo. 81, 40 S.W. (2d) 558. (7) There was no basis for the award of $275 for medical expenses. Respondent, having selected his own physician, must bear the expense. There was no showing appellant ever refused medical attention or that respondent ever applied for it. (a) Section 3311, R.S. Mo. 1929.

BENNICK, C.

This is an appeal by the employer and self-insurer from the judgment of the Circuit Court of the City of St. Louis affirming an award of the Workmen's Compensation Commission in favor of the employee. Originally the appeal was allowed to the Supreme Court, but for want of an affirmative showing in the record that the amount in dispute was within that court's pecuniary jurisdiction, it ordered the cause to be transferred here. [Evans v. Chevrolet Motor Co. (Mo.), 102 S.W. (2d) 594.]

The case involves a claim for compensation for a permanent total disability alleged to have resulted from an occupational disease contracted by the employee as an incident to his employment. It was admitted that following the amendment of 1931 (Laws 1931, p. 382), the employer had duly elected to bring itself within the act with respect to occupational diseases.

The employee is one Wadies Evans, now about forty-three years of age, while the employer is the Chevrolet Motor Company, which maintains one of its plants in the city of St. Louis.

Evans was employed as a porter in June, 1932, and was subsequently assigned to the work of cleaning booths at nighttime. These booths apparently were rooms or enclosed portions of the plant about fourteen by twenty-five feet in dimension, in which automobile hoods were painted or "ducoed" during day shifts. The nature of the work required that all dust in the booths be removed or eliminated, and on night shifts the porters, including Evans, after cleaning the booths, would spray the walls and ceilings with a spray gun or soap gun, using an aqueous solution made up of soap chips, water, and whale oil. The night shift extended over a period of seven hours, with two hours of each shift given over to the use of the spray guns, and Evans had been so employed about ten months at the time he took sick on October 12, 1934.

The evidence was that while the spraying was being done the booths would be filled with a mist or fog which was sometimes so heavy or dense that one could not see through it. In fact the employer's own evidence corroborated that of Evans with respect to the density of the mist or fog when the spray guns were being used. Nothing in the way of respirators was furnished the porters by the company, and the only protection which they had against the inhalation of the mist came from pieces of cheese cloth which they wore across their nostrils.

A chemical analysis made of the solution used in the spray guns disclosed that it contained a twenty-seven per cent. concentration of solid matter, the greater proportion of which was soap, and that while the solution contained no poison as such, the extent of the concentration of solid matter in it served to cause it to have a harmful effect on human tissue, and to produce an irritation and inflammation in the respiratory system if inhaled over a period of time. It was also shown that the condition attending the use of the solution was one "peculiar to the work," and that the question of what the effect of it would be upon a particular individual depended upon how well that individual's physical make-up would be enabled to repair and take care of the damage that would be done.

Evans testified that after he had been using the spray gun about two months he began to notice an irritation in his throat and lungs; that the effect was one of a "burning...