Goetz v. J. D. Carson Co.

• Decision Date: 08 December 1947
• Docket Number: 40230
• Citation: 206 S.W.2d 530,357 Mo. 125
• Parties: Lucille Goetz and George Frank Goetz, Dependents of George Joseph Goetz, Deceased, (Claimants), v. J.D. Carson Company, Employer, and Employers Mutual Liability Insurance Company, Insurer, Appellants
• Court: Missouri Supreme Court

206 S.W.2d 530

357 Mo. 125

Lucille Goetz and George Frank Goetz, Dependents of George Joseph Goetz, Deceased, (Claimants), v. J.D. Carson Company, Employer, and Employers Mutual Liability Insurance Company, Insurer, Appellants

No. 40230

Supreme Court of Missouri

December 8, 1947

Appeal from Circuit Court of City of St. Louis; Hon. James F Nangle, Judge.

Affirmed and remanded.

John S. Marsalek and Moser, Marsalek, Dearing & Carpenter for appellants.

(1) The court erred in affirming the award, because the award is excessive, and is not supported by the evidence with respect to the deceased's earnings. Claimant showed by her own evidence that of the bi-weekly sums paid deceased by the employer, $ 32.50 was paid him to cover automobile expense and was not paid to him as earnings. This was the specific agreement between the employer and the deceased when he was hired. No evidence to the contrary was introduced. In basing the award upon the total sum paid the deceased, the commission went contrary to the evidence and the express provisions of the law. Sec. 3710 (a) (g), R.S. 1939; Newman v. Rice Stix Dry Goods Co., 335 Mo. 572, 73 S.W.2d 264; Russell v. Ely & Walker Dry Goods Co., 332 Mo. 645, 60 S.W.2d 44; Stapleton v. Gunn, 69 S.W.2d 1104; Toon v. David G. Evans Coffee Co., 103 S.W.2d 533. (2) The slips delivered to deceased with his checks were prepared in accordance with Federal statutes and regulations governing Social Security, under which the amount paid deceased as automobile expense, was not deductible in computing his earnings. These slips had no reference to the Missouri Workmen's Compensation Act, and constituted no evidence that the total sums paid deceased, as shown thereby were earnings as computed under said act. Title 26, U.S.C., Secs. 1403, 1426 (a), 1429; Regulations, Social Security Board, Vol. V, Code of Federal Regulations, Title 20, p. 941; Commerce Clearing House, Unemployment Insurance Service, Vol. I, pp. 453-5; p. 2408. (3) Even on the basis adopted by the referee and the Commission the award is excessive. Sec. 3710 (d), R.S. 1939. (4) There was no competent evidence to prove that the employee sustained an injury by accident arising out of and in the course of his employment. The burden of proof upon the foregoing issue was upon the claimant. Stone v. Blackmer & Post Pipe Co., 224 Mo.App. 319, 27 S.W.2d 459; Ulman v. Chevrolet -- St. Louis Division, 349 Mo. 906, 163 S.W.2d 778; Miller v. Ralston Purina Co., 341 Mo. 811, 109 S.W.2d 866. (5) The accident report showed on its face that it was hearsay, and incompetent to prove the happening of the alleged accident. The report of the alleged accident, made by the employee to Mr. Fihn, falls within the same category. Weiler v. Peerless White Lime Co., 64 S.W.2d 125; Becherer v. Curtiss-Wright Corp., 194 S.W.2d 740; Lanahan v. Hydraulic Press Brick Co., 55 S.W.2d 327. (6) The employee's statements to Mr. Fihn, to his wife, the claimant, to Dr. Harris and to Dr. Stevens were all incompetent and inadmissible against employer and insurer to prove the happening and circumstances of the alleged accident. Weiler v. Peerless White Lime Co., 64 S.W.2d 125; Hatfield v. Southwestern Gro. Co., 104 S.W.2d 717; Dunlap v. C., R.I. & P.R. Co., 145 Mo.App. 215, 129 S.W. 262; Evans v. Sears Roebuck & Co., 129 S.W.2d 53; Leahy v. Cass. Av. & F.G. Ry. Co., 97 Mo. 165, 10 S.W. 58. (7) Narrative statements of past events, made to a physician by his patient, are not admissible in evidence. The testimony of Dr. Harris and Dr. Stevens, repeating what they were told by Goetz regarding his alleged accident, was incompetent under this rule. Freese v. St. Louis Pub. Serv. Co., 58 S.W.2d 758; Murphy v. St. Joseph Ry., L.H. & P. Co., 283 S.W. 994, 221 Mo.App. 670.

Carl A. Enger for respondents.

(1) The evidence showed claimant did not use an automobile in his work, therefore there could be no automobile expense. Employer knew this, and never deducted the $ 32.50 for failure to use an automobile. The use of the automobile was waived by the employer. Sec. 3710 (d), R.S. 1939. (2) There was competent evidence on which to base the award. The testimony of Mr. Fihn, not objected to, that Goetz phoned him he had stopped in some little place to get a bottle of soda pop, and coming out he had twisted his ankle. He limped slightly on one foot that evening when he was in the store about 4:30 or 4:45; that he told Goetz if his foot hurt to go to the doctor, and repeated what he had told him over the phone, to-wit, to go to Dr. Harris. Lanahan v. Hydraulic Press Brick Co., 55 S.W.2d 327; Tralle v. Chevrolet Motor Co., 92 S.W.2d 966. (3) Report of accident to Workmen's Compensation Commission, claimant's Exhibit A. Tralle v. Chevrolet, 92 S.W.2d 966; Lumpkin v. Sheidley Realty Co., 53 S.W.2d 386; Floyd v. A.Y. McDonald Mfg. Co., 46 S.W.2d 251. (4) Testimony of Dr. I. J. Harris, doctor for J.D. Carson Company. Wills v. Berberich's Delivery, 98 S.W.2d 569. (5) Proof may be made by circumstantial evidence of an injury by accident to an employee arising out of his employment, and the place where it happened. Tralle v. Chevrolet Motor Co., 92 S.W.2d 966; Zimmerman v. Goodfellow Lumber Co., 56 S.W.2d 608; Lanahan v. Hydraulic Press Brick Co., 55 S.W.2d 327. (6) The testimony of Mr. Fihn covering the statement of Mr. Goetz as to how the injury occurred and the place was part of the res gestae and therefore admissible. This was Mr. Goetz's first opportunity to explain the accident to his employer. It was spontaneous and made without reflection and made under the influence of the accident and within the immediate surroundings and he was suffering from pain and shock. Goucher v. Woodman Accident Co., 104 S.W.2d 289.

Van Osdol, C. Bradley, C., absent; Dalton, C., concurs.

OPINION

VAN OSDOL

Appeal by the employer and insurer from a judgment of the circuit court affirming an award of the Missouri Workmen's Compensation Commission awarding $ 8,124 compensation to claimants-respondents, the widow and minor son of George Joseph Goetz, deceased.

The Commission found the facts to be that "employee, on July 9, 1945, sustained an accident arising out of and in the course of his employment with J.D. Carson Company resulting in his death on August 11, 1945."

It is contended by appellants, (1) there was no competent evidence introduced tending to prove employee sustained injury by accident arising out of and in the course of his employment (Section 3691 R.S. 1939, Mo. R.S.A. sec. 3691); and (2) the award was excessive in amount.

It is now said, in view of the constitutional provision relating to the scope of judicial review of action of administrative agencies (Section 22, Article V, Constitution of Missouri, 1945), that in the review of the decision of an administrative tribunal ("in cases in which a hearing is required by law") the reviewing court is to determine whether, upon a consideration of the whole record, there is competent and substantial evidence to support the finding -- the reviewing court is not to substitute its judgment on the evidence for that of the administrative tribunal; but the reviewing court is authorized to determine the question -- could the administrative tribunal have reasonably made its findings and reached its result upon consideration of all the evidence before it; and the reviewing court has the power "to set aside decisions clearly contrary to the overwhelming weight of the evidence." Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W. 2d 647. This court has expressed the opinion that the award of the Workmen's Compensation Commission is now to be regarded "as having more nearly the force and effect of a judgment in a non-jury case under the new Civil Code." Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W. 2d 55; Section 114 (d), Civil Code of Missouri, Laws of Missouri, 1943, p. 388. See also Brown v. Weber Implement and Auto Company, Cause No. 40360, 357 Mo. 1, 206 S.W.2d 350, decided by Division Number Two, November 10, 1947.

The appellant-employer operates a furniture store in St. Louis and employs collectors in connection with its business. The claimants' decedent was employed as a collector by appellant-employer on April 1, 1945. It was employee's duty to make collections in the areas of St. Louis City and County "north of Delmar." The employer's collectors went out over their routes or territories and collected and adjusted accounts for their employer. They came into the employer's store in the afternoon about four-thirty or quarter to five and "wrote up" their reports. While other collectors used their automobiles in the performance of their duties, the automobile of employee, claimants' decedent, throughout the period of employment, was unfit for use and he was trying to cover his territory "afoot." The employer's credit manager, who had general supervision over all employees, knew employee was walking in working his territory. The evidence shows employee was a very conscientious worker.

On July 9, 1945, the employee left for work in the morning as usual with the materials and folders he used in his work. When he returned home about two o'clock in the afternoon, he was "limping quite badly"; at that time he told his wife he had turned his foot over on a loose brick in the sidewalk "down around Jefferson and Dixon (Dickson)." The foot was quite swollen and the ankle was discolored. He was in pain. Later in the afternoon he went "back to the store" to report his collections. That evening his foot "was swollen as large as a grapefruit . . . on the both sides and the ankle and up the ankle was swollen." There was evidence tending to show a pulmonary embolism developed from the sprained ankle causing employee's death August 11th.

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