Guillod v. Kansas City Power & Light Co.

• Decision Date: 10 June 1929
• Parties: R. W. GUILLOD, RESPONDENT, v. KANSAS CITY POWER & LIGHT COMPANY, APPELLANT
• Court: Kansas Court of Appeals

18 S.W.2d 97

224 Mo.App. 382

R. W. GUILLOD, RESPONDENT, v. KANSAS CITY POWER & LIGHT COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

June 10, 1929

Appeal from Circuit Court of Jackson County.--Hon. Willard P. Hall Judge.

AFFIRMED.

Judgment affirmed.

Otto & Potter and B. J. George for respondent.

Johnson Lucas & Graves, Wm. C. Lucas and Ludwick Graves for appellant.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This appeal is from an order and decree of the circuit court of Jackson County, Missouri, affirming the final award of the Missouri Workmen's Compensation Commission.

The claim was submitted to the circuit court upon a certified copy of the record by the Compensation Commission and included, among other things, a stipulation as to the facts, in which it was agreed the same might be considered as the facts in the claim of R. W. Guillod v. Kansas City Power & Light Company for an injury resulting in a right inguinal hernia sustained by plaintiff while in the employ of defendant. It is agreed the accident occurred on February 5, 1927, while claimant, a service foreman, and E. L. Campbell, a meter setter, were engaged in running a service from the wires of defendant in the rear of 3840 East 68th Street Terrace in Kansas City, Mo., to the residence at that address. After the work had been completed claimant picked up the coil of the remaining wire, weighing approximately 100 pounds, in an effort to place it in a service truck. He felt a sharp pain in the right side and immediately let the coil drop to the ground. A few minutes later he again picked up and lifted the coil into the truck. When first lifted, the coil did not slip out of his hands or fall against him, nor did he slip or fall in lifting it, but voluntarily dropped it after he felt the pain in his right side. Claimant lifted the coil in the usual and customary manner. Shortly after the pain in his right side, he became nauseated for a few minutes and has noticed this nausea for short periods on several occasions since. He continued to work all that day, which was Saturday, and all of the following Monday, February 7, 1927, when at about five o'clock P. M. he called upon Doctor Clarence McGuire, who diagnosed the case as right inguinal hernia at the same place where on December 29, 1924, this doctor had operated upon claimant for the same thing. Defendant's doctor, W. C. Iuen, who knew nothing of the prior operation, also diagnosed claimant's case as right inguinal hernia. On December 17, 1924, while working for this defendant in setting a pole with a pipe, the claimant received a right inguinal hernia, and on December 24, thereafter, for and in consideration of $ 100, he executed a release for any claim he might have had from said rupture, as follows:

"Know all men by these presents, that I. R. W. Guillod, of 3211 Main St., Kansas City, Missouri, for the sole consideration of the sum of One Hundred Dollars to me paid by the Kansas City Power & Light Company, the receipt of which is hereby acknowledged, do hereby release and forever discharge said Kansas City Power & Light Company, its successors and assigns, from all actions, causes of actions, suits, controversies, claims and demands whatsoever for or on account of injuries received to the person or damages caused to the signer hereof, or either of them, and especially on or about the 17th day of December, 1924, at or near North Kansas City, 18th and Flora. Mr. R. W. Guillod claimed to have received a rupture, December 17, 1924. This release is for all injuries that are now apparent or may hereafter arise.

"It is expressly understood and agreed that said sum of One Hundred Dollars is the sole consideration of this release and the consideration stated herein is contractual and not a mere recital; and all agreements and understandings between the parties are embodied and expressed herein. I fully understand all matters herein contained, and without solicitation sign this release."

Claimant based his claim for compensation for his hernia of February 5, 1927, upon the facts above stated. It is learned from letters and other documents submitted in connection with the claim that Doctor McGuire, in the latter part of 1925, found no protrusion of the old hernia of December 17, 1924. It is shown by the same documents and letters that the operation for the hernia in February, 1927, also was performed by Dr. McGuire; that claimant apparently had recovered therefrom, as he resumed his work April 20, 1927, having been off work for a period of nine weeks.

After the usual preliminary hearings and awards, a final award was made by the Compensation Commission, allowing claimant the sum of $ 250, for medical aid, and for temporary total disability $ 20 per week for nine weeks, or $ 180. Timely notice of appeal was given and the case was certified to the circuit court of Jackson County, where a trial on the record resulted in a judgment and decree sustaining the award of the commission, after the refusal of five declarations of law asked by defendant. A motion for a new trial was overruled and defendant appealed to the Supreme Court which tribunal ruled no constitutional question is involved and that court is without jurisdiction to consider the appeal. The cause thereupon was certified to this court for review.

There are three assignments of error (1) that the court erred in sustaining the final award of the commission, (2) in refusing defendant's declarations of law 1, 2, 3, 4 and 5, and (3) in overruling defendant's motion for a new trial. Under the first point it is urged that, as a matter of law, and particularly within the meaning of section 7b of the Compensation Law, there was no accident forming a basis for the claim; and that the court erred in refusing defendant's declaration 1, as follows:

"The defendant-appellant asks the court to declare the law to be, that under the facts in this case, as a matter of law, there was no accident within the meaning of the Missouri Workmen's Compensation Law, and particularly within the meaning of section 7-b of the Missouri Workmen's Compensation Law."

Section 7b of the act defines "accident" and "personal injury" in the following language (pp. 495, 496, Session Laws 1927):

"The word 'accident' as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury. The term 'injury' and 'personal injuries' shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom."

It is argued these definitions were taken verbatim from section 3, 3075, Revised Statutes Nebraska 1922, and that the Supreme Court of Nebraska, in cases decided prior to the adoption of the Missouri Workmen's Compensation Act, construed the term "an unexpected or unforeseen event, happening suddenly and violently" to relate more to effect than to cause, and that the doing of a usual thing in the usual manner is an accident if the result is unexpected or unforeseen.

It has been held in Missouri that when we adopt a statute of another State, we adopt it with the prior construction placed upon it by the courts of such State. [State ex rel. Westhues v. Sullivan, 283 Mo. 546, 578, 224 S.W. 327.] It is admitted by defendant in its brief that the construction placed upon a statute of another state by its highest court prior to the adoption of such statute by this State is "persuasive" upon our appellate courts in construing said statute after its adoption by this State; but it is argued that the holding of the Missouri Commission and the construction of the Nebraska courts as applied to our section 7b of the Act, is erroneous and out of line with the expressions of our Supreme Court in construing the term "accident," and that the Nebraska rule should not be followed. It is pointed out in this connection that claimant lifted the coil of wire in the usual and ordinary way, as he had done before; that it did not slip or strike him to cause any wrench or strain, nor did he slip or fall while he had the coil in his hands so as to cause a wrench, twist or strain. There was nothing unusual or out of the ordinary, under the facts, nor was there any external force which caused the recurrence of the hernia.

Defendant construes the act to mean that some "unexpected" or "unforeseen" occurrence must happen "suddenly and violently" and that such unexpected, unforeseen, sudden and violent happening must produce the result or injury complained of; otherwise the result is not an accident and therefore not compensable. In other words, to be an accident within the meaning of the statute, defendant declares there must be (1) an unexpected or unforeseen occurrence happening suddenly and violently; (2) producing or causing an injury; and that the absence of either of these elements makes it a case of no accident. It is further urged on this line the act requires there shall be an "objective symptom of the injury;" that under the facts here presented there was no objective symptom of an injury such as a cut, bruise or contusion; nor was there at the time any noticeable protrusion at the seat of the hernia and it was not discovered until three days later, and then by the examination of a physician. It is urged also that there was no proof that the hernia, as found, had not existed prior to February 5, 1927, which the commission held; and there is no evidence that the last hernia had not been gradually coming on. There was no dispute that a prior hernia had existed showing an inherent weakness there. It is contended...