Francis v. Sam Miller Motors
| Decision Date | 12 September 1955 |
| Docket Number | No. 1,No. 44687,44687,1 |
| Parties | Herman FRANCIS (deceased), Ethel M. Francis (dependent), Respondent, v. SAM MILLER MOTORS, Inc. (employer), and Truck Insurance Exchange (insurer), Appellants |
| Court | Missouri Supreme Court |
Sam Mandell, Kansas City, Popham, Thompson, Popham, Mandell & Trusty, Kansas City, of counsel, for appellants.
David T. Cavanaugh, Thomas E. Hudson, Hudson & Cavanaugh, Kansas City, for respondent.
This is a compensation case. The employer and insurer have appealed from a judgment of the circuit court reversing a final award of the Industrial Commission denying compensation to claimant-respondent (widow) on account of the death of Herman Francis, an employee of Sam Miller Motors, Inc. The court ordered an award of $12,400 compensation to claimant. The amount involved gives this court jurisdiction of the appeal. Sec. 3, Art. V, Const. of Mo. 1945, V.A.M.S.
Francis, age 55, was employed as an automobile mechanic in a garage operated by the employer at 5436 Troost Avenue in Kansas City. The claim for benefits was filed on the theory that Francis suffered an accident or series of accidents, arising out of and in the course of his employment, in that on May 24, 1950, he inhaled carbon monoxide gas resulting in his death on the following day. Employer and insurer denied that Francis was caused to inhale carbon monoxide gas, or died as the result of the inhalation of such gas, or died as the result of an accident arising out of or in the course of his employment.
The Referee, and the full Commission on review, denied compensation on the ground 'that the death of Herman Francis, employee, was not the result of an accident, series of accidents or occupational disease arising out of and in the course of his employment.' The circuit court reversed on the ground that the Commission's award was not supported by competent and substantial evidence upon the whole record.
We shall first state the evidence favorable to the award of the Commission denying compensation. Francis began work for Motors in October, 1929. His place of work was in stall No. 1, in the northeast front corner of the garage building and immediately to the north of the main front entrance. The north wall of the building formed the north side of the stall, a large glass show window formed its east side and a partition, extending back west from the front of the building for about the length of an automobile, formed the south side. The west side of the stall was open and faced the inside of the garage building. Above the large glass show window was a smaller window that was open. The west wall of the building was equipped with two suction fans, four feet across, and there was an exhaust fan in the top of the building. Leading from the exhaust fan was a large pipe from which flexible hose hung down so that they could be attached to the exhaust pipes of automobiles and the fumes could be carried out of the garage. The exhaust and suction fans were turned on every morning, but the individual hose had to be connected by the mechanics working on the automobiles. The stall in which Francis worked was further equipped with an electric floor fan, which could be turned on, when wanted, and Francis kept it at the north side of his stall directed up into where he was working. There were three windows in the south wall of the building which were probably open and both the front and back doors of the garage were open.
During the afternoon of May 24, 1950, Francis drove a new Hudson automobile into stall No. 1, killed the motor and began work. He had been instructed to install a purolator and to do this it was necessary to raise the hood, jack up the front end, take off the right front wheel, pull the right front dust skirt off and disconnect a lot of lines. The motor could not be operated with the oil lines unhooked. Francis had been working on this car about 45 minutes when he called to Ray Buck, who was working in the adjoining stall, 'Buck, come here.' Buck was working under an automobile, but in a few minutes went to Francis and found him sitting on the rear bumper of the Hudson, humped over and holding his hands over his midsection and 'kind of gasping a little bit.' He said he couldn't get his breath. Buck notified the shop foreman, Jerry Arthur, and Fred Beamgard was called to take Francis to Dr. Boyer's office at 5329 Troost Avenue. Beamgard found Francis sitting by the shop foreman's desk, all bent over holding his stomach. He said he was feeling pretty tough, but Beamgard started to walk with him to Dr. Boyer's office. They stopped two or three times to let Francis sit on the curb and rest. Francis 'said he was in so much pain, he felt so bad, he thought he would sit down and rest a little bit.' Francis was conscious when Buck came to him in the garage, and Buck did not see him slip or fall in any way. There were no oil or gas fumes present that Buck could smell. He had noticed none, the air was all right and he (Buck) suffered no ill effects, although he was working within 15 or 18 feet of Francis and, after Francis left, he finished the work on the Hudson. Francis was conscious during all the time Beamgard was taking him to Dr. Boyer's office.
Dr A. D. Boyer, an osteopath, had not known Francis prior to the time he came to his office between 4:30 and 5:00 p.m., May 24, 1950. Francis was conscious and he walked into Dr. Boyer's office. He complained of pain in his chest, neck and shoulders, and said he was very sick at his stomach and had been sick all that day. He told Dr Boyer that he had had such attacks before and that Dr. Wheatley, a chiropractor at 47th and Troost, had treated him. Francis said he had been on a fishing trip, eating a lot of fried foods and foods that didn't agree with him and that he had eaten some food a day or two before and had vomited it up. Dr. Boyer noted that his stomach was distended with gas; that his face was a gray color, his lips and fingernails were cyanotic, bluish, his breathing rather labored and his condition very serious. Dr. Boyer washed out his stomach with soda water to make him throw up, gave him oxygen for about two hours, gave him a hypodermic of coramine to help his breathing, and also gave him a heart stimulant. Francis did not lose consciousness, but his pulse was very weak. Dr. Boyer made no tests for carbon monoxide poisoning, but carbon monoxide is an asphyxiant and 'with carbon monoxide poisoning a person would have a pinkish color and an almond breath and he (Francis) had neither.' Dr Boyer made no diagnosis and said he didn't know that caused Francis' death.
Mrs. Francis was called and came to Dr. Boyer's office about 7:00 p.m. When advised that her husband was a very sick man and should be in a hospital, she said he had had these spells before and Dr. Wheatley (a chiropractor) had always brought him out of them and she was going to take him home. When Mr. and Mrs. Francis left Dr. Boyer's office by taxicab about 9:30 p.m., Francis was still cramped with pain 'right in the pit of the stomach.' When they reached their home, Mrs. Francis assisted her husband into the house and put him to bed. His condition remained about the same that night and until the evening of the following day, when it changed for the worse. Mrs. Francis then called Dr. Wheatley, who gave Francis an enema and remained in the house until Mr. Francis passed away at about 11:30 p.m., May 25, 1950. A local undertaker was called but the body was not delivered to him, because Francis had expressed a desire to be buried by a Mr. Goodrich of Osceola, Missouri. Goodrich was called and came for the body about 3 a.m. the following morning, May 26th, and removed it to Osceola. With reference to the body, Goodrich said: Rigor mortis had not set in 'to speak of.' The body was embalmed immediately, probably before daylight, and the blood drained.
When Mr. Goodrich arrived to claim the body, he was told there had been two doctors in attendance and 'they' called one, the first one (Dr. Boyer) and he said that the other doctor would sign the certificate. 'They' couldn't get him. A Mrs Renner was present at the Francis home when Mr. Goodrich reached there. Mr. Goodrich made up the death certificate and Mrs. Renner said she would drop over and have the doctor sign it and pick up a removal permit for the body from the City Hall and come on down the next day. Dr. Boyer testified that someone came out the next day wanting him to sign a death certificate, but that he refused to do so because he had made no diagnosis. Since it was necessary to obtain a death certificate and no physician was available at Osceola, Goodrich arranged for a Dr. G. G. Robinson of Humansville to perform an autopsy. Dr. Robinson did so about 8:00 p.m. Saturday, May 27, 1950, and then signed the death certificate.
On March 15, 1949, Francis had had a 'stomach upset' and, at the request of his sister, he was taken to Dr. Edward Teubel, an M.D., for treatment. On that date he complained to Dr. Teubel of nausea, vomiting, severe pain and distress in the epigastrium region of the stomach and colicky pain of the lower abdomen, and he gave a history of gas pains, nausea and constipation for the past four years. The doctor located the pain in the epigastrium of the lower bowel on pressure and recommended that Francis go to a hospital for a G.I. series of X-rays and a gall bladder visualization, but Mrs. Francis objected and, instead, treatment was attempted, Dr. Teubel placed Mr. Francis on a milk diet and did not hear from him again until July or August in 1949. At that time Dr. Teubel found Francis 'a lot worse off' than in the previous March. There were the same complaints, only more severe, and he was much worse than when he came in in March. Dr. Teubel...
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