Howard v. Ford Motor Co.

Decision Date01 October 1962
Docket NumberNo. 23536,23536
Citation363 S.W.2d 61
PartiesJo Ann HOWARD, Individually and as Natural Guardian and Next Friend of Stephen Lee Howard, Carl Edward Howard, William Lester Howard and Emmett M. Howard, Jr., Appellant, v. FORD MOTOR COMPANY, Respondent.
CourtMissouri Court of Appeals

John C. Thurlo, Henry G. Eager, Winston V. Buford, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, of counsel, for appellant.

Jack W. R. Headley, Irvine O. Hockaday, Jr., Kansas City, Lathrop, Righter, Gordon & Parker, Kansas City, of counsel, for respondent.

MAUGHMER, Commissioner.

We have here a claim and suit for workmen's compensation benefits. After an extended hearing the referee denied the claim. The Industrial Commission affirmed as did the circuit court and claimant has appealed. The referee found:

(1) The employee, Emmett Howard, sustained an accident on June 18, 1959, 'arising in the course of his employment with Ford Motor Company', but 'said accident did not arise out of said employment'.

(2) 'That the accident occurred when Emmett Howard suffered an insulin reaction which caused him to fall and thus his fall was the result of his own diseased condition and was not in any way a consequence of or caused by his employment'.

(3) 'There being no causal connection between his employment and his accident, compensation must be and the same is hereby denied'.

Upon appeal the commission unanimously affirmed the award and findings of the referee.

The employee, Emmett Howard, died on January 24, 1962, admittedly from causes not resulting from injuries sustained in the accident in question. His widow individually and as next friend for the dependent children was duly substituted as claimant. Since the referee and commission found that the accident was not compensable, no determination was made as to the extent of disability, the medical estimates as to which veried considerably. However, it does not affirmatively appear that an amount in excess of $15,000 is involved, hence jurisdiction rests with this court.

On June 18, 1959, the employee, Emmett Howard, was thirty-two years of age, stood five feet and four inches in height, and had been employed by respondent Ford Motor Company for about seven years. On this paraticular day he was working as a repairman. He had been a recognized diabetic for five years. In an effort to control the diabetes he regularly took insulin--self-administered protamine zinc insulin. His daily dosage was 25 units. Prior to the June 18th incident he had suffered four separate and severe fainting attacks. The first occurred at his home early one morning and before he had eaten breakfast. The other three came on late in the afternoon while he was working around his home on the outside and when he had neglected to have lunch. On each of these occasions orange juice revived him. The evidence shows that Mr. Howard was of normal intellignece. He had served 16 months in the navy, had been mayor of Camden, Missouri, and was generally regarded as a good workman.

Immediately prior to the accident in question, he appeared normal to fellow employees. He was working on Assembly Line No. 3 at respondent's Claycomo plant. He had made an adjustment on another line and returned to No. 3. This assembly line platform was 4 feet, 7 inches in width and 12 1/2 inches in height from the surrounding concrete floor. The accident occurred about 4:00 or 4:30 p. m. Mr. Howard testified: 'I stepped up on the line and my old leg, it's bad now, slipped and I started to step with the other and that's when I fell, knocked the other one right out from under me, just like I didn't have no leg'. He fell and his head apparently struck the concrete floor. Fellow workers found him comatose and bleeding from the nose, ears and mouth. Some of them observed spasmodic movements of the arms and legs and he then became motionless. The company nurse gave him orange juice, which he immediately vomited. There was involuntary urination.

The patient was transferred to the North Kansas City Memorial Hospital and admitted to the emergency room at 6:10 p. m. He remained there 23 days and until July 11th. For the first few days he remained practically comatose, unresponsive and drained blood and spinal fluid from his ears. X-rays revealed a temporal parietal noncompressed skull fracture. He had a right facial paralysis, loss of memory and diminished hearing. His diabetes became labile and difficult to control. He spent 7 days (July 20-27, 1959) in a Lexington, Missouri hospital, where he was treated for his diabetes. On August 21, 1959, he suffered an epileptic seizure and was hospitalized for 8 days. Form September 6 to September 11, 1959, he was in the Ray County hospital for treatment of thrombophlebitis of the left leg, then transferred to the Veterans Hospital in Kansas City, where he remained until October 19, 1959. His over-all condition apparently deteriorated. There was loss of memory and mind destruction. Six doctors called by appellant declared him to be totally and permanently disabled.

Gary DeLouis, a fellow employee, was working on Assembly Line No. 3 and said he saw the employee fall. DeLouis stated he was 5 or 10 feet from Mr. Howard, that 'he was looking straight at me and he had his hands up to his side, close to his body and his hands and whole arms were shaking nervously. I am demonstrating here how he appeared and I have my fists clinched and have them up together at my chest and I am moving them back and forth. I saw this man stand there shaking in this manner possibly four to six seconds. He appeared to be trying to talk to me but I couldn't hear a word from him. He just fell over backwards off the line. * * *. He made no effort to catch himself or to throw up his arms as he fell, and his arms were still shaking as he was falling. He did not yell out. I went over to him and both his feet were still up on the line and somebody pulled them down.'

Drs. Edward C. Weiford, neurological surgeon, and Dr. Fred H. Lundgren, internal medicine, called by the employer, expressed the opinion that the fall was caused by an insulin reaction. These physicians described an insulin reaction as a situation where the blood sugar in an individual lowers to a point where it produces symptoms of weakness, trembling, difficulties in orientation, and convulsive seizures. Unconsciousness can come within seconds.

On appeal appellant, while not concurring in the correctness of the commission's finding that the employee's fall was caused by an insulin reaction, concedes there was sufficient probative evidence to support such a finding. She presents only one assignment of error, which we incorporate verbatim herein.

'Assuming that Mr. Howard's fall was due to a fainting spell induced by an insulin reaction, the commission and circuit court both erred in denying compensation because the uncontradicted evidence clearly establishes a causal connection in law between the conditions under which his work was required to be done and the resulting injuries and, thus, necessarily arose out of his employment within the meaning of the Compensation Act'.

The testimony heard by the referee was voluminous. We deem it unnecessary to incorporate all of it in this opinion, witness by witness, exhibit by exhibt, for two reasons: First, our statement of the facts does, we think, constitute a fair, concise and sufficient statement of the essentials. Second, appellant concedes the conclusion that the fall was caused by an insulin reaction is justified by the evidence. Tersely stated, claimant's contention is that the employee's head injuries and resultant disability came about because he fell 12 1/2 inches from the assembly line and struck his head on the concrete floor and that the raised platform and hard floor each constituted special and hazardous working conditions arising out of the employment, without which he would not have sustained the injuries, or at least some of them.

An appellate court must view the evidence upon which the commission made its award, in the light most favorable to the successful party below. Harper v. Home Imp. Co. et al., Mo., 235 S.W.2d 558. Neither the circuit court nor the appellate court may substitute its judgment on the evidence for that of the commission. Both courts are authorized to determine if the award of the commission is supported by competent and substantial evidence upon the whole record. Long v. Mississippi Line Co. of Mo. et al., Mo.App., 257 S.W.2d 167, 170, and cases cited. Kansas City v. Rooney, Mo. en Banc., 363 Mo. 902, 254 S.W.2d 626. The reviewing court may determine if the commission could have reasonably made its finding and reached its result. Seabaugh's Dependents v. Garver Lumber Mfg. Co., et al., Mo. en Banc., 355 Mo. 1153, 200 S.W.2d 55, 62. It is incumbent on claimant to establish that the accident arose out of the employment. Huskey v. Kane Chevrolet Co., Mo.App., 173 S.W.2d 637; Toole v. Bechtel Corporation et al., Mo., 291 S.W.2d 874.

Our Workmen's Compensation Law (Sec. 287.120, subd. 1, V.A.M.S.) requires the accident to be one 'arising out of and in the course of' the employment in order to be compensable. As stated by this court in Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296, 298, 'These are separate tests and each must be satisfied'.

Appellant has cited 27 cases (five of which are from Missouri courts) in support of her position. Respondent has invited our attention to 21 cases which, it contends, uphold a contrary conclusion. We have examined these authorities, will refer to some of them particularly, and present our views as to the proper conclusions which should result from their application to our facts.

Larson's Workmen's Compensation Law, Vol. 1, pp....

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