Freese v. St. Louis Public Service Co.

• Decision Date: 04 April 1933
• Docket Number: No. 21986.,21986.
• Citation: 58 S.W.2d 758
• Parties: FREESE et al. v. ST. LOUIS PUBLIC SERVICE CO.
• Court: Missouri Court of Appeals

58 S.W.2d 758

FREESE et al. v. ST. LOUIS PUBLIC SERVICE CO.

No. 21986.

St. Louis Court of Appeals. Missouri.

April 4, 1933.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Act by Theresa Freese and another, dependents of Edward J. Freese, deceased employee, opposed by the St. Louis Public Service Company, employer and self-insurer. From a judgment reversing and remanding an award of the Workmen's Compensation Commission, the employer appeals.

Judgment reversed, and cause remanded, with directions.

T. E. Francis, B. G. Carpenter, and Allen, Moser & Marsalek, all of St. Louis, for appellant.

John F. Clancy, Vance Newman, and Mason, Goodman & Flynn, all of St. Louis, for respondents.

BENNICK, Commissioner.

From the judgment of the circuit court of the city of St. Louis reversing and remanding an award of the Missouri Workmen's Compensation Commission in its favor, the employer and self-insurer, St. Louis Public Service Company, has duly perfected its appeal to this court.

The claim is by Theresa Freese, the widow, and Mary Ann Freese, a daughter, as dependents of Edward J. Freese, who for some seven years preceding his death on October 9, 1930, had been in the service of the employer. Actually the widow is the sole claimant; the daughter's interest being contingent upon her mother's death or remarriage. Claim was filed with the commission on November 1, 1930, less than a month after the employee's death; the basis of the claim being the contention that death had proximately followed an injury sustained by the employee on November 12, 1927, the same having been by accident arising out of and in the course of his employment.

There is no dispute about the fact that the death of the employee was caused by sarcoma of the pelvis on the left side; and it will be observed that death did not occur until practically three years after the date of the alleged accident.

In its answer to the claim for compensation, the employer set up and now relies upon the fact that no notice of the time, place, or nature of the alleged accident was given it within thirty days thereafter, as required by section 3336, R. S. 1929 (Mo. St. Ann. § 3336), and that the accident did not cause the condition from which the employee's death resulted.

The hearing was held before Commissioner Shaw, who entered an award in favor of the employer and against the dependents. Thereupon the latter applied for a review before the full commission, and, upon the same being granted, the previous award was affirmed and made final. The dependents' appeal to the circuit court followed, where the award was reversed, and the cause remanded, upon the ground that there was not sufficient competent evidence in the record to have warranted the making of the award; and the case is now before us on the employer's appeal from the circuit court's judgment.

The evidence disclosed that on or about November 12, 1927, the deceased and one Henry Meuth were working at the employer's Virginia and Walsh sheds in the city of St. Louis; that the deceased was using an iron pinch bar, three and one-half feet long and three-fourths of an inch in diameter, in an attempt to jack up a car; that the pinch bar slipped; and that the deceased fell over backwards, the pinch bar falling across his body. This testimony came from Meuth himself, who was still in the employer's service at the time of the hearing, but was called in this proceeding as a witness for the dependents.

In an endeavor to prove causal connection between the accident and the alleged resulting injury, Meuth was asked on direct examination if he had noticed or knew whether the bar had struck the deceased in the groin, to which he answered, "I don't know," and, "I wouldn't say; I know it fell across him." With reference to whether statements were made by the deceased immediately after the occurrence, his testimony was that "he never said anything about it at all."

The testimony of the widow was that from the time of his injury on November 12, 1927, until the time of his death, her husband complained continually of pain and suffering from the injury; that the injury was to the left groin, which manifested itself by a swelling or growth which she had seen; that in March, 1928, he was examined and treated by one of the employer's physicians; that in October, 1929, he again reported to the company doctor, who examined him, and said he had neuritis and pus bags; that he called again the following day, and was told he had lumbago and a back sprain, "so he didn't go back any more"; that he himself employed Dr. Froelich in January, 1930, who "immediately" referred him to Dr. Morse; and that he was thereafter under the care of Dr. Morse until the time of his death.

She testified further that the deceased continued in the service of the employer until "about" June 1, 1930, and that the reason for his quitting was that "he was not able — he couldn't work any more."

Dr. Morse testified that he found the deceased suffering from a sarcoma of the hip bone, and that the deceased gave him a history of having been injured some time before that, and of having been under the care of a doctor off and on since the injury. An objection was interposed to the history as hearsay, and an exception saved to the overruling of it by the commissioner. The doctor testified further that "he felt" that the sarcoma had been caused by an injury; that he could see no other cause for it; and that upon the assumption that the deceased, on November 12, 1927, had struck himself in the left groin with a bar (of which there was no direct proof), that the deceased complained of pain in the region of the sarcoma from the day of the alleged accident to the time of his death, and that the condition grew progressively worse as he observed it, he had even more reason to feel that the injury, if any, was the cause of the sarcoma.

Upon the general subject of sarcomas, the doctor testified that the medical profession did not know their cause, but knew that they did sometimes come from trauma; that the majority of osteo-sarcomas were preceded by an injury; but that the profession did not attribute every sarcoma to trauma.

As to the particular case, he admitted on cross-examination that from an inspection of X-ray pictures, the sarcoma which the deceased had "might have preceded 1927."

In its general aspects the testimony of Dr. Morse regarding the knowledge of the medical profession of the causes of sarcoma was corroborated by Dr. Carriere, a physician connected with the coroner's office, who performed an autopsy on the body of the deceased, and made a written report of his findings for the health department.

On behalf of the employer, Dr. Grosskerutz, one of its examining physicians, testified that in March, 1928, the employer caused a general physical examination of all its men to be made with a particular view to the discovery of hernias; that at that time he personally examined the deceased, and found nothing wrong with him; and that the deceased made no complaint about having been involved in an accident at any time.

At some time later (evidently the occasion in October, 1929, about which the widow testified), the deceased came to Dr. Grosskerutz, and complained of pain in his muscles and joints, for which the doctor treated him upon the assumption that he was suffering from rheumatism. Again the deceased gave no history of having sustained an accidental injury.

The widow admitted that her husband had given the employer no notice of his injury; her explanation being that he had not regarded his injury seriously, and had thought that he would get over it in a short time. Upon the question of when notice was received, Meuth, the coemployee, who alone had witnessed the accident, testified that on June 4, 1930, shortly after the deceased had left the service of the company, he was called into the company's office, and was asked about the deceased having fallen and been hurt.

In connection with its statement of the facts, and as the basis for its denial of compensation, the commission submitted the following: "Although the evidence is somewhat conflicting in this case, it is the undersigned Commissioner's opinion that the claimant has failed to prove that the employee's death was the result of the alleged accident of November 12th, 1927. Claimant testifies that the decedent suffered with pain from the time of the accident until his death, but the record shows that he appeared before a doctor only twice prior to January, 1930, and on both occasions he made no complaint in regard to his injury. Furthermore, he did not report same until May 29th, 1930, two days before he ceased work. If we assume that this employee sustained this accident, it seems very improbable that he would have continued working almost two and one-half years and say nothing about said accident when he was suffering all this time. An award for compensation cannot be based on conjecture, and it is the opinion of the undersigned that the claimant has failed to prove that the death resulted from the accident, and compensation is therefore denied."

The propriety of the entry of the judgment of reversal in the lower court is the matter at issue on this appeal. That judgment, as has been heretofore indicated, was put upon the ground that there was not sufficient competent evidence in the record to have...