Flippin v. First Nat. Bank of Joplin, 8223

• Decision Date: 31 October 1963
• Docket Number: No. 8223,8223
• Citation: 372 S.W.2d 273
• Court: Missouri Court of Appeals
• Parties: Tauressa FLIPPIN, Respondent, v. FIRST NATIONAL BANK OF JOPLIN and Aetna Casualty & Surety Company, Appellants.

Page 273

372 S.W.2d 273

Tauressa FLIPPIN, Respondent, v. FIRST NATIONAL BANK OF JOPLIN and Aetna Casualty & Surety Company, Appellants.

No. 8223.

Springfield Court of Appeals, Missouri.

Oct. 31, 1963.

Motion for Rehearing or for Transfer to Supreme Court Denied

Nov. 26, 1963.

Rex Titus, Richart, Titus & Martin, Joplin, for appellants.

Herbert Van Fleet, Joplin, Seiler, Blanchard & Van Fleet, Joplin, of counsel, for respondent.

HOGAN, Judge.

Respondent Tauressa Flippin has made claim for the death benefits provided for under the Workmen's Compensation Law as unremarried widow of Eugene Flippin, who suffered a fatal coronary heart attack while employed by the appellant bank as a janitor. The referee for the Division of Workmen's Compensation has made an award of $15,515.00 to Mrs. Flippin, payable in installments as provided by Section 287.240, ¹ which has been affirmed, upon review, by the Industrial Commission, and upon appeal by the circuit court. The employer and insurer have appealed to this court as provided by Article V, Section 22, of the Constitution of 1945, V.A.M.S. and Section 287.490(2). Mrs. Flippin is the sole dependent and the accrued sums payable do not exceed the sum of $15,000.00. The liability for the installments not yet payable will terminate in the event of Mrs. Flippin's death or remarriage, and since the award was made to commence on February 8, 1961, it cannot be said that the amount in dispute, independent of all contingencies, exceeds $15,000.00. This court is therefore vested with jurisdiction of the appeal. Snowbarger v. M. F. A. Central Co-operative, Mo., 317 S.W.2d 390, 394-395.

Eugene Flippin, who was 42 years old at the time of his death on February 7, 1961, was employed as a custodian or janitor by the appellant bank. The record indicates that he was approximately six feet tall, weighed about 190 pounds, and was in apparent good health. For some time prior to his death, he had been regularly employed as a janitor at the bank and elsewhere. He carried out trash, washed windows, and when the occasion demanded, shoveled snow. At the time of his death, he was employed as a custodian or janitor by both the bank and the Joplin Stockyards; his work at the stockyards was similar to his work at the bank. He was described as an active man. During the last six or seven years of his employment at the bank, he was head custodian or janitor at the bank and spent part of his time supervising the activities of other maintenance employees. However, the record indicates that he always 'helped with all' of the work.

During the night of February 6 or morning of February 7, 1961, there was a heavy snow at Joplin. It is stipulated, among other things, that approximately six inches of snow accumulated on the streets and sidewalks. When it snowed, it was the duty of the janitors, including Mr Flippin, to begin work earlier than usual in order to clear the sidewalks adjacent to the bank before the bank opened at 9:30. At the time in question, the bank employed five janitors, and customarily all participated in removing the accumulated snow from the sidewalks. Three snow shovels were provided, and ordinarily three of the janitors shoveled while two rested. There were two sidewalks adjacent to the bank, one on the east and one on the north. The sidewalk on the north side is 10 feet 8 inches in width (north and south) and, we gather, some 108 feet in length (east and west). The dimensions of the east sidewalk are not shown.

The evidence indicated that Mr. Flippin arrived upon the employer's premises at 6:59; this was stipulated on the basis of what the time clock indicated, as no other employee was present at the time. The temperature at that time was 28~F. At 7:25, a second janitor, one Curtis Adams, arrived and found Mr. Flippin working on the north sidewalk. Mr. Flippin was perspiring and appeared to be fatigued. Approximately 108 feet of the sidewalk had been cleared, and Mr. Flippin was still working. Mr. Flippin stated that he had cleared the sidewalk alone, and, accepting Adams' offer to relieve him, procured a bucket of salt and began spreading it over the cleared area.

At 7:37, a third employee, William Bradford, arrived. Bradford and Adams continued to shovel snow while Mr. Flippin spread the salt. Neither Adams nor Bradford heard any complaint of illness or pain from the deceased. A few minutes after Bradford's arrival, however, Mr. Flippin collapsed on the sidewalk and was pronounced dead upon arrival at a local hospital.

On February 10, an autopsy was performed, and the report of this autopsy was received in evidence by stipulation. The autopsy, performed by a physician who did not testify at the hearing, consisted primarily of a detailed gross examination of the thoracic viscera; the heart was dissected and examined. The pathologist's report, as we understand it, is to the effect that the orifices or openings of the coronary arteries were almost blocked by atherosclerotic plaques, or deposits of cholesterol; there was some thickening of the wall of the right coronary artery, and a complete occlusion of the left coronary artery. The pathologist concluded, on the basis of the autopsy, that the occlusion or blockage of the left coronary artery had been complete, quite rapid, and fatal. The nature of the occlusion is not precisely stated.

At the referee's hearing on this claim, two physicians, both admittedly qualified, gave testimony relative to the cause of Mr. Flippin's death. Neither physician, so far as the record shows, had ever examined Mr. Flippin while he was alive, and neither had participated in the autopsy. Both testified on the basis of their examination of the autopsy report, and in response to hypothetical questions predicated on the facts substantially as we have related them. One physician stated his opinion to be that Mr. Flippin's exertion in clearing the north sidewalk was 'the most probable precipitating cause of the attack': the other was of the opinion that there was 'no causal relationship between his work which he did on that morning and his death.' As we read the record, both physicians agreed that, within limits, a 'heart attack' of this type may be precipitated by intense exertion, although the nature of the mechanism producing death is somewhat problematical; their difference of opinion arose because one physician assumed that 'this total amount of work over this elapsed period of time [would be] quite heavy exertion,' while the other assumed that the work done by Mr. Flippin 'did not subject him to unusual stress beyond what I would expect him to normally do, expect him to be able to do.'

The referee made the following findings, omitting the conclusion that Mrs. Flippin was the sole dependent and his conclusion as to the amount of the award:

'* * * that the employee sustained an accident arising out of and in the course of his employment, and that said accident aggravated and combined with pre-existing atherosclerosis of the coronary arteries to accelerate and contribute to cause the employee's death by coronary occlusion on February 7, 1961. Crow v. Missouri Implement Tractor Co. [Mo.], 307 S.W.2d 401; Williams v. Anderson Air Activities [Mo.App.], 319 S.W.2d 61.

'I find the employee suffered an abnormal strain as a result of activity beyond and different from his normal duties, and that such abnormal strain constituted an accidental event within the meaning of Section 287.020(2) R.S.Mo 1949, as interpreted by the Court in the Williams case, 319 S.W.2d loc. cit. 65.

'In the instant case an 'abnormal strain' may be found in the cumulative effects of overexertion, and was 'unexpected' in the sense that the strain caused by such overexertion was more than the employee contemplated or anticipated.

'It is true that death or disability caused by the usual exertion necessary to the performance of an employee's usual duties, however arduous, does not constitute an accident. De Lille v. Holton-Seelye Co. , 66 S.W.2d 834; Meldrum v. Sourthard Feed and Mill Co. , 74 S.W.2d 75; and other similar cases cited in Jones v. Remington Arms Co. [Mo.App.], 209 S.W.2d 156. However, overexertion resulting from activities beyond and different from the employee's usual routine may constitute an accident. DeLille v. Holton-Seelye Co., 66 S.W.2d, loc. cit. 836.

'In the instant case, overexertion, that is to say, exertion beyond the usual routine, is found in the stipulated fact that in approximately twenty-five minutes the employee shoveled, unassisted, a large quantity of snow from a large area, and ordinarily would have been assisted by four men, all from a large area, and ordinarily would have been assisted by four men, all five alternately using three shovels in order that two men might periodically rest. * * *'

This award was affirmed, on review, by the Industrial Commission, which added that it considered the recent case of Brotherton v. International Shoe Company, Mo.App., 360 S.W.2d 108, as persuasive. The award was affirmed on appeal by the circuit court.

The appellants' principal contention here is that the Industrial Commission erred in finding that the employee sustained an accident, within the meaning of Section 287.020(2), which defines the word accident as '* * * an unexpected or unforeseen event happening suddenly and violently * * * producing at the time objective symptoms of an injury.' The appellants have stated their point in a number of different ways, but the substance of their contention seems to be that the Commission has erroneously extended the term 'abnormal or unusual strain' to include job activity which the evidence shows was merely toilsome and fatiguing effort. They also contend that the Commission has erroneously confused the terms 'accident' and 'injury' in reaching its conclusions, and remind us that the fact of injury is no proof of an accident within the meaning of Section 287.020(2). Both the appellants and the respondent cite ...