Floyd v. A. Y. McDonald Mfg. Co.

• Decision Date: 01 February 1932
• Citation: 46 S.W.2d 251,226 Mo.App. 444
• Parties: MABEL FLOYD, RESPONDENT, v. A. Y. McDONALD MFG. CO., EMPLOYER AMERICAN MUTUAL LIABILITY INSURANCE CO., INSURER, APPELLANT. *
• Court: Kansas Court of Appeals

46 S.W.2d 251

226 Mo.App. 444

MABEL FLOYD, RESPONDENT, v. A. Y. McDONALD MFG. CO., EMPLOYER AMERICAN MUTUAL LIABILITY INSURANCE CO., INSURER, APPELLANT. *

Court of Appeals of Missouri, Kansas City

February 1, 1932

Appeal from the Circuit Court of Jackson County.--Hon. Ralph S Latshaw, Judge.

AFFIRMED.

Judgment affirmed.

John C Nipp, Mont T. Prewitt and E. E. Thompson for respondent.

Lathrop Crane, Reynolds, Sawyer & Mersereau for appellant.

OPINION

BLAND, J.

This is an appeal from a judgment of the Circuit Court, affirming an award of the Compensation Commission. Claimant is the wife of deceased, who, it is claimed, received an injury, on or about February 27th or 28th, 1930, arising out of and in the course of his employment with the defendant, McDonald Manufacturing Company.

The final award made by the Commission was for $ 8 for medical aid, $ 150 for burial expenses. It also awarded claimant, for death benefits, the sum of $ 19.60 for 300 weeks, "or until her prior death or remarriage and the unpaid balance to Carl P. Floyd, minor son of deceased, as his interest may appear."

The Circuit Court affirmed the award of the Commission for the total sum of $ 6,038, together with interest at the rate of six per cent per annum, from August 11, 1930, the date of the final award of the Commission.

It was the contention of the claimant before the Commission that deceased died by reason of having received an abrasion or open wound on the outside of his left leg immediately below the knee; that streptococci germs entered through the wound causing a septic infection or blood poisoning, from which employee died on March 12, 1930. The Commission found the facts to be as claimed by claimant.

It is defendants' contention here that the finding that the employee was injured in the course of his employment is based upon hearsay and, therefore, that there is not sufficient competent evidence to establish that the injury, which it is contended he received at that time, resulted in his death. All of the testimony was adduced by plaintiff. There was none on the part of defendants.

The evidence shows that sometime prior to the date upon which it is claimed deceased received the injury aforementioned, and on said day, he had been and was in the employ of the defendant, A. Y. McDonald Manufacturing Company, as a janitor and night-watchman at its place of business in Kansas City. In going about the premises he would use an elevator therein in the discharge of his duties. The elevator in question had no doors but the elevator shaft had gates at each floor. These gates were raised by the operator of the elevator in alighting from it. The motive power was electricity and the elevator was operated by a cable. Deceased worked from five o'clock every evening until seven o'clock in the morning. Other employees quit their work at five in the evening and came back at eight in the morning. Between the two latter hours no employees, except deceased, worked in the building.

Claimant's witness, Crumm, who was the employer's foreman under whom deceased worked, testified, over the objection of defendants, that about a quarter of seven o'clock in the morning of "around the 27th or 28th of February, 1930" deceased came to the office to change his clothes, getting ready to go home; that he told the witness that he had come up on the elevator to the top floor and on reaching there he had stepped over to the gate of the elevator and started to lift it; that the elevator started back down without any action on his part to cause it to do so; that deceased had one foot on the floor of the elevator and it came down and struck him on the back of the head or shoulder and "throwed him back on the elevator and hurt his left leg;" that he told deceased to report to Mr. Olson, who was defendant's credit manager. Crumm made no examination of deceased's leg and, therefore, saw no bruises, abrasions or any evidence of any injury to deceased. Deceased. continued to work until the 6th day of March. Crumm did testify that deceased, upon several mornings after he claimed that he was hurt, complained that his leg hurt him.

Crumm tested the elevator and found that it worked all right but did find that the rope was loose and had it tightened. He testified: "I wanted it fixed before anybody else got hurt, he (deceased) said he got hurt on the elevator and I wanted it fixed before anybody else got hurt."

Crumm reported to Olson, the manager, the matter of deceased's complaint that he had been injured. Olson investigated the matter by first interviewing deceased. Olson talked with the latter on the "evening following (his) hearing of the accident that morning." The conversation with deceased took place about the evening of February 28th or the evening of March 1, 1930. Over the objection of claimant, Olson testified as to what deceased said to him in reference to the accident, which is substantially the same as that testified to by Crumm, except that Olson said deceased told him that the elevator did not stop but began going down and that deceased was caught between the elevator and the gate and that he was pinned in "in some way;" that deceased said he received a bruise on his head caused by the elevator striking him and knocking him into the elevator; that deceased said that he also received a bruise on the hip; that the witness told deceased: "You realize, Mr. Floyd, we have compensation free of charge, and if you feel this is sufficiently serious enough to demand attention, by a doctor, why I want you to do it." "Q. What did he say? A. He said, 'Well, I don't think it is,' that is about the remark he made, he said, 'I don't believe it's serious enough to require a doctor's attention;'" that the witness went to see deceased on the morning of March 10, 1930, and found him in a semi-conscious condition; that deceased's left leg was quite swollen; that upon the recommendation of Dr. Dorsey, who was employed by both defendants, he called an ambulance and had deceased taken to the hospital.

Olson also testified as to testing the elevator. He claimed that it worked all right but stated that the rope was tightened. He also testified that deceased failed to come to work on the evening of March 7th, which resulted in the witness reporting the matter to the Workmen's Compensation Commission. In this report Olson stated that the accident happened on February 27, 1930. The report was made upon a blank furnished by the Commission, and in answer to the question: "Give cause of accident (stating whether falling object, fall of person, or kind of machine, tool or appliance, etc. and part of machine on which accident occurred)," Olson stated: "Bruised left leg when attempting to leave elevator. Kind of power, Electric. Describe in full how accident happened: When elevator reached top floor employee started to get off--elevator started down and gate fell on employee bruising left leg." . . . "Parts of body injured. Left leg." Olson testified that in making this report he had no knowledge that deceased received any injury but relied upon what deceased told him. He testified that he made the report in the line of his duties as an employee of the defendant, A. Y. McDonald Manufacturing Company; that he did not think there was any one else in the building at the time deceased said he was hurt by the elevator; that deceased did not tell him at what hour he was injured; that it seemed to the witness "Like he said it was towards morning;" that he did notice deceased limping.

Deceased's brother testified that he saw him for the first time after the accident on March 4th; that at that time he noticed a place a little larger than a quarter, not quite as large as a half dollar, right below his left knee; that this was a "pretty bad place;" that the witness noticed that deceased limped; that he saw his brother again on Sunday March 8th; that deceased's left leg then was swollen and that he was in "quite an amount of pain;" that at this time the sore was inflamed; that he saw his brother again the evening before he went to the hospital; that his left leg was swollen; that at this time the sore had "scabbed over," but it wasn't healed, . . . it wasn't well by any means."

Deceased's son testified that he worked at a place other than where deceased was employed; that the witness worked during the day time; that he would see his father every morning; that he first noticed his father limping about March 1st; that the limp was a little limp and he did not "think much of it;" that along about the 2nd or 3rd of March his father called him up and asked him if he "could come down and help him clean up. He said he didn't feel very good that night." The witness testified that before his father had this accident there was nothing wrong with him and he did not have any limp.

The witness, Holloway, testified that he was a butcher and sold meat to the deceased, who was at the place of business of the witness nearly every morning about seven o'clock; that about the 27th or 28th of February, 1930, deceased came into the store and "he was kinda limping." Over the objection of defendants the witness was permitted to testify what deceased said about the elevator starting. He stated that deceased told him a similar story as was testified to by the witness Olson in reference to what deceased told the latter. The witness testified that he had never seen deceased limping before; that deceased told him that he did not tell the former's wife because it would worry her, as she was nervous.

The witness, Veletha Cox, who was employed by the defendant, A. Y. McDonald Manufacturing Company testified, over the objection of defendants, that along the last part of February she heard deceased tell Williams, the...