Hatfield v. Southwestern Grocer Co.

• Decision Date: 23 April 1937
• Docket Number: No. 5638.,5638.
• Citation: Hatfield v. Southwestern Grocer Co., 104 S.W.2d 717 (Mo. App. 1937)
• Parties: HATFIELD et al. v. SOUTHWESTERN GROCER CO. et al.
• Court: Missouri Court of Appeals

104 S.W.2d 717

HATFIELD et al. v. SOUTHWESTERN GROCER CO. et al.

No. 5638.

Springfield Court of Appeals. Missouri.

April 23, 1937.

Appeal from Circuit Court, Jasper County; R. H. Davis, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Inez Hatfield for the death of her husband, Roy C. Hatfield, and others, claimants, opposed by the Southwestern Grocer Company, employer, and the Fidelity & Casualty Company of New York, insurance carrier. From a judgment of the Circuit Court affirming an award of the Workmen's Compensation Commission denying compensation, the claimants appeal.

Affirmed.

Grover C. James and Robert E. Seiler, both of Joplin, for appellants.

Paul E. Bradley and Charles M. Grayston, both of Joplin, and George A. Hodgman, of St. Louis, for respondents.

ALLEN, Presiding Judge.

This is an appeal from an award of the Missouri Workmen's Compensation Commission, denying compensation to Inez I. Hatfield, widow of Roy C. Hatfield. The record shows that a claim for compensation was filed by Inez I. Hatfield against the Southwestern Grocer Company, of Joplin, and the Fidelity & Casualty Company of New York, as employer and insurer, alleging that Roy C. Hatfield, an employee of the Southwestern Grocer Company, of Joplin, Mo., was injured on July 6, 1933, while moving merchandise in his employer's warehouse onto a dock to be loaded into a truck, and that while so doing, the deceased, Roy C. Hatfield, stumbled and fell from the loading dock onto the truck, receiving injuries from which he died on September 25, 1933.

The answer to the claim for compensation filed by the employer and insurer denied every allegation in the claim and sets up that no notice of the accident was given by or in behalf of the deceased, to the employer within the time provided by the Missouri Workmen's Compensation Act (Mo St.Ann. § 3336, p. 8268), to wit, thirty days, and that the employer was prejudiced thereby. The case was heard on February 7, 1934, by a referee for the Missouri Workmen's Compensation Commission. On February 23d the referee denied compensation to the claimant, stating in the award that the claimant, Inez I. Hatfield, failed to prove by sufficient, competent evidence that Roy C. Hatfield came to his death as the result of an injury in an accident arising out of and in the course of his employment, and that compensation must therefore be denied.

An application for review was filed and the full commission, on April 18, 1934, made an award denying compensation on the theory that the claimant had failed to prove that the deceased, Roy C. Hatfield, came to his death as the result of an injury by accident, arising out of and in the course of his employment. Thereafter, an appeal was taken to the circuit court of Jasper county, and the court affirmed the award of the Missouri Workmen's Compensation Commission.

This case comes to us on appeal by plaintiff, Inez I. Hatfield.

The facts disclose that Roy C. Hatfield was, on July 6, 1933, an employee of the Southwestern Grocer Company, of Joplin, Mo.; that he was a man fifty years of age and had been employed by the Grocer Company for approximately twenty-five years; that prior to July 6th he had been a healthy, robust, hard-working man. His duties required him to open the employer's warehouse about 6:30 in the morning, to load or assist in loading trucks with merchandise during the morning, and to help unload the trucks when they returned in the evening. He also worked at unloading railroad cars, and moving merchandise into the warehouse of his employer. The work that he did was heavy, requiring strong physical effort. Each day at 12 o'clock he went to his home for lunch and returned to work at approximately 1:15 p. m. He went to his dinner about 8 o'clock in the evening, and was subject to call thereafter for the purpose of admitting trucks to the warehouse if they came in after he left. The evidence was to the effect that he had had no previous illness, except a slight attack of influenza which he treated without consulting a physician. The accident which it is alleged caused his death was alleged to have occurred on July 6, 1933, no hour being specified in the claim for compensation.

There was no direct evidence showing the happening of any accident, and the claimant in this case relied solely upon circumstances and certain statements of the deceased, which she offered to prove and claimed were admissible as part of the res gestae. The claimant, widow, testified that Hatfield left home as usual on the morning of July 6th, about 6:30 a. m.; that when he returned at noon he was not feeling well and lay down; that he did not eat his lunch, and appeared to be sick, and that he was evidencing pain and had a peculiar look in his eyes; that she noticed a red place, not very large, on his left side. He left home to return to work about 2 o'clock p. m. Claimant attempted to prove conversations with her husband regarding the cause of his indisposition, and the red spot on his side. These conversations were objected to by the employer and insurer on the theory that they were hearsay and merely self-serving declarations, and a narration of past events. This objection was sustained by the referee.

Mrs. Hatfield testified that her husband had been in good health prior to this time. Witness Millard Horner testified that between 9 and 10 o'clock in the morning of July 6th Hatfield was looking healthy and strong, and that he did not notice any difference in him, but that when he returned at 7:30 in the evening Hatfield looked sick and pale.

Dr. W. H. Brookshire testified that on Friday, July 7th, he was called to see Hatfield and found a bruised spot over his left kidney, approximately two inches across by one and one-half inches.

Arthur Coatney testified on behalf of claimant, that he was an automobile mechanic who operated a repair shop in the garage building owned by the Southwestern Grocer Company, situated next door to the warehouse where Hatfield worked; that he came to the warehouse to obtain drinking water and to use the toilet practically every day. He further testified that Hatfield's work was heavy and that he had seen him moving heavy merchandise, loading trucks, and unloading railroad cars. This witness was asked by counsel for the claimant if he had seen Mr. Hatfield along about July 6, 1933, but he answered that he did not know the exact day, but that he had seen him practically every day. He was then asked if he saw Hatfield in a falling or stooping position in the early part of July, 1933. His answer was that he did not see him fall and when asked to relate what he saw, he stated that when he walked into the warehouse where Hatfield was standing close to his office where he had his desk, that he had his hand on his hip, and he thought on the left side. This witness testified that he said, "What is the matter Roy?" The referee sustained an objection entered by counsel for employer and insurer. The witness could not place the exact time of this conversation, but stated that it was some time between 7 and 9 o'clock in the morning of some day in the early part of July. Several offers of this testimony by the claimant were objected to by counsel for employer and insurer and the objections sustained.

Inasmuch as the correctness of the ruling of the Workmen's Compensation Commission and the...