Gleason v. Titanium Pigment Co.

• Decision Date: 05 May 1936
• Docket Number: No. 23892.,23892.
• Citation: 93 S.W.2d 1039
• Parties: GLEASON v. TITANIUM PIGMENT CO. et al.
• Court: Missouri Court of Appeals

93 S.W.2d 1039

GLEASON v. TITANIUM PIGMENT CO. et al.

No. 23892.

St. Louis Court of Appeals. Missouri.

May 5, 1936.

Rehearing Denied May 19, 1936.

Appeal from St. Louis Circuit Court; J. Wesley McAfee, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Charles Gleason, employee, against the Titanium Pigment Company, employer, and the Maryland Casualty Company, insurer. From a judgment reversing an award of the Missouri Workmen's Compensation Commission in favor of employee, the employer and insurer appeal.

Reversed and remanded, with directions.

Theodore J. Krauss and Moser, Marsalek and Dearing, all of St. Louis, for appellants.

Robert W. Herr, of St. Louis, for respondent.

BECKER, Judge.

This is an appeal by the employer and insurer from a judgment of the circuit court of the city of St. Louis, reversing an award of the Missouri Workmen's Compensation Commission. The referee of the Compensation Commission, before whom the hearing was held, found in favor of the employer and insurer and against the employee, for the reason that the Missouri Workmen's Compensation Commission had no jurisdiction of the case. Upon application of the employee, the case was reviewed by the full commission. The full commission, by their final award, unanimously affirmed the award of the referee, stating: "We find from the evidence that the employee did not file his claim within the time required by section 3337, R.S.Mo.1929 [Mo.St.Ann. § 3337, p. 8269]. Therefore, we are without jurisdiction." By due steps the case was appealed by the employee to the circuit court.

The circuit court reversed the award and remanded the cause, holding that there was no testimony to support the finding that the commission lacked jurisdiction, and that the commission should take jurisdiction of the claim and determine on the merits whether claimant was entitled to compensation. From this judgment the employer and insurer duly perfected the present appeal.

The claim was filed before the Missouri Workmen's Compensation Commission on June 1, 1934. The date of the accident is alleged in the claim as "April, 1932." The employee further alleged that he was working in a pit at the junction of two sewers, when he was overcome by gas and was rendered unconscious; that he returned to work after two days, and that the accident did not culminate in compensable injury until about January 1, 1934. The employer and insurer, by their amended answer, raised the point that the claim was not filed within the time prescribed in the statute.

Since the respondent for his statement of facts in the case practically accepts that outlined by appellants, we in the main adopt it as a fair résumé of the evidence in the case.

At the hearing before the referee, on October 9, 1934, the employee testified that the Titanium Pigment Company was the last company he worked for; that he commenced to work for the company in 1926 and was laid off in 1932; that while he was working for the company he was gassed five times and suffered other injuries. He testified that the last time he was gassed — he did not know the date exactly, but thought it was in April, 1932.

On the occasion in question he and two other men were engaged in digging a trench. The purpose of the work was to repair or replace a sewer, so as to prevent gas from coming back into the plant. They had been engaged in the work about two hours, and had dug a trench about twenty or thirty feet long and four feet deep, when they broke into the sewer. Claimant noticed a sweet taste in his mouth, and immediately became unconscious and remained so for about one-half hour. By inhalation of oxygen he was revived in the company's office by Dr. McBratney.

Claimant went home after the accident, and was away for two days. He then went back to work and continued until July, 1932, when he was laid off. At the time he was laid off he was able to work.

Claimant testified that the day following the accident he did not think he had any physical complaints, but later noticed that he was short-winded. This was not sufficiently severe to prevent him from working.

At the time of the hearing claimant testified that his trouble was in his liver, lungs, nerves, and eyes; that he was short-winded; that his legs and arms ached and cramped. He had pains directly underneath his chest, a bad cough, and his heart bothered him. He had fainting spells, sometimes twice a day; sometimes he did not have them over twice a week. He had been suffering from fainting spells the last seven or eight months prior to the hearing. He had noticed the pain in his chest six or seven months. Except for the short-windedness, the other pains and conditions had developed during the last seven or eight months. Claimant did not think that he was able to work, because he got out of breath; he could work a little and then he had to stop; he had been in that condition the last seven or eight months. Prior to the time this condition developed he felt that he was all right. He had done no work since he was laid off; he thought he was able to work up until about the last seven or eight months. Before he was gassed the last time he "was getting around good." He was in good health and had no complaints. The previous gassings had no effect on him.

Previous to the accident, he had been treated by Dr. McBratney, who was his family doctor, but not for the results of sewer gas; he was not troubled with the gas before this time in 1932.

Claimant, on cross-examination, said that the conditions he complained of did not all come on at once. He first became short-winded; about a month later his hearing became bad. Some time later, about "a week or ten days maybe," his eyes became affected. This came on gradually, accompanied by pain in his temples. Next, his legs began to cramp and pain. Later his arms and fingers became affected, and then he had the cough. Claimant was then asked, "when did the cough begin?" He answered, "Eight or nine months ago." A little later claimant was asked:

"Q. How long after you had this alleged accident that you developed this cough, when did you first notice it after that? A. I just couldn't tell you.

"Q. About how long? A. I suppose about ten days, a hacking cough."

On redirect examination claimant stated that until about eight or nine months ago, he had no complaints except the cough and short-windedness, and thought he was able to work until that time.

Charles Wright testified that he had worked as foreman for the employer up to August of 1933. Claimant was in one of the labor gangs. Witness remembered that claimant was gassed while making some repairs at the junction of two sewers along in the spring of 1932. Witness noticed the gas coming out, and all of a sudden claimant fell over. He was unconscious, and remained so about twenty-five or thirty minutes. Witness believed he was "off work the two following days." Then he came back. He seemed normal after that, so far as witness remembered, and did the same type of work as before. He continued to work for eight to ten months; then he was laid off. He always appeared well able to do the work.

On cross-examination witness testified that he left the employ of the company in August of 1933, and that the claimant was laid off around July of 1932. Witness did not discharge him, just had to give him his notice. Witness recalled occasions other than the accident in question on which claimant was gassed. On one occasion the claimant was attended by Dr. Woods, the company doctor, and was off from work a day and a half.

Joseph J. Woods testified that the two sewers, at the junction of which claimant was employed when his accident occurred, carried barium sulphate and a titanium sulphate solution, and that the product was hydrogen sulphide gas and sulphur dioxide gas.

Dr. Emmett McBratney testified that he was called to the company's plant to treat the claimant about two or three years previous to the hearing. This was an emergency call. Claimant had been carried into the office and was just regaining consciousness when the witness arrived. He was informed that the claimant had inhaled hydrogen sulphide gas. After claimant came to, his condition seemed satisfactory, and he did not seem to be suffering from any results of it at that time. Claimant came to witness' office on May 3, 1933. At that time claimant was complaining of a shortness of breath — a wheezing at times, as claimant described it. An examination at this time showed the following abnormal conditions: That claimant's throat was red and his tonsils were bad. Claimant said he had some pain at the base of both lungs, most to the left. There were a few rales at the base of the left and mid-line of the lungs. The X-rays showed that his heart was normal in size, the aorta slightly enlarged, and that there were darkened areas at the base of both lungs, especially in the left lower quadrant. Witness testified that he told claimant to go back to work; that he felt claimant was able to work.

Claimant came to witness' office again on April 4, 1934. At that time he found that claimant's teeth were all bad and a number of them missing. Claimant's heart was enlarged and to the left; his expansion was two and one-half inches. His breath was short, especially on any exertion. The aorta was widened up near the arch. His blood pressure was 160/110. Witness said, "I figured that he had a fibrosis of the lungs and enlarging of the heart and arteriosclerosis." Claimant's condition had changed a great deal since witness examined him in May, 1933. Witness said: "I didn't consider his condition in 1933 as disabling, or he certainly wasn't completely incapacitated at that time." He was totally disabled when witness examined him in April, 1934. His condition was permanent and progressive. In answer to a hypothetical question the witness said that the gassing of April, 1932, was the origin of the present condition....