Kane v. St. Louis Refrigerator Transit Co.

• Decision Date: 04 June 1935
• Docket Number: No. 23363.,23363.
• Citation: 83 S.W.2d 593
• Parties: KANE et al. v. ST. LOUIS REFRIGERATOR TRANSIT CO.
• Court: Missouri Court of Appeals

83 S.W.2d 593

KANE et al. v. ST. LOUIS REFRIGERATOR TRANSIT CO.

No. 23363.

St. Louis Court of Appeals. Missouri.

June 4, 1935.

Rehearing Denied June 18, 1935.

Appeal from St. Louis Circuit Court; Frank C. O'Malley, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Ralph Kane, Mary Jane Kane, and William Kane, Jr., claimants, for the death of their grandfather, opposed by the St. Louis Refrigerator Transit Company, employer and self-insurer. From an order of the Compensation Commission granting an award, insurer appeals.

Reversed and remanded.

Nagel, Kirby, Orrick & Shepley and Dwight D. Ingamells, all of St. Louis, for appellant.

Fred A. Gossom and G. H. Suelthaus, both of St. Louis, for respondents.

BECKER, Judge.

This is an appeal by the employer, St. Louis Refrigerator Transit Company, self-insurer under the Missouri Workmen's Compensation Act (Mo. St. Ann. § 3299 et seq., p. 8229 et seq.), from a judgment of the circuit court affirming the final award, on rehearing, of the Missouri Workmen's Compensation Commission against the employer, self-insurer, and in favor of Ralph Kane and Mary Jane Kane, grandchildren, as partial dependents of the deceased employee, William Kane, Sr., for compensation for 100 weeks at $6 per week for each partial dependent.

The issues presented to this court on appeal are whether there was sufficient competent evidence adduced to warrant the finding of the commission that the death of the deceased resulted from an accident arising out of and in the course of his employment, and whether the claimants were partial dependents of the deceased employee at the time of his death.

In light of the fact that we have reached the conclusion that there was not sufficient competent evidence adduced to warrant the finding of the commission that the death of the deceased was the result of accident arising out of and in the course of his employment, we set forth only such facts as bear upon that issue.

William Kane, Sr., was an employee of the St. Louis Refrigerator Transit Company in the capacity of night watchman. He was a widower, and boarded with his daughter, Mrs. Elizabeth Woods, at 737 Erskine avenue, St. Louis, Mo. His married son, John, lived with his wife close by at 731 Erskine avenue. The claimants, Ralph Kane and Mary Jane Kane, were grandchildren of William Kane, deceased, and lived with their maternal grandmother ; their own father being dead. There is testimony that the deceased contributed ten or twelve dollars a month for the clothes and for medical attention of these grandchildren.

On the night of November 12, 1928, William Kane, Sr., went to work as usual. His son, John, at the solicitation of his wife, went down to see his father that evening, and found his father lying on the floor of a large open shed. The father later stated that his lantern had "gone out" and that he had stumbled over a rail in the shed and had fallen. The son, with the aid of a policeman, took Kane to the hospital. The son admitted, on cross-examination, that he had signed a statement, dated November 14, 1928, in which he said that his wife had told him that his father, William Kane, Sr., was feeling badly when he left for work on the night of November 12, 1928, and she felt uneasy about his condition; that his father had a cold sweat before he left home ; and it was for that reason that he had visited his father at his place of employment.

Dr. Edward Buddy testified that he examined William Kane, Sr., on November 13, 1928, at 9 o'clock a. m., in the Alexian Brothers Hospital; he was unconscious; in a toxic stupor; he found an abrasion on the right knee and right chest, with swelling and emphysema; his heart was rapid, and he found "coarse rales at both bases of the lungs ; he was coughing and his throat was red." He diagnosed the case as "pneumonia, accident, that is, there was evidence of an accident from the abrasions on the right chest, rales and swelling of the left knee."

"Q. How long does it take for pneumonia to set up? A. To get a definite consolidation of the lungs it would be at least five or six days.

"Q. From the condition he had? A. It would be from three to five days."

Dr. Buddy testified that Kane died the following day at noon. Dr. Buddy did not take any X-rays of Kane at the time he examined him "because his condition was too bad to do that," and the doctor did not learn that one of the deceased's ribs was fractured until after the autopsy.

"Q. Your conclusion is that the man died of pneumonia ? A. Yes.

"Q. A fractured rib or any other injury immediately surrounding the lungs would increase pneumonia ? Have a tendency to do that? A. The infection would have to follow and that takes time for that to develop before pneumonia could come from a fractured rib.

"Q. If a man were laying in dampness for any length of time, how long would it take him to contract pneumonia? A. He might get the infection from laying there and it would take forty-eight or sixty-two hours for pneumonia to develop that you could tell it clinically."

And the doctor testified that the condition of the pneumonia which he found Kane suffering from when he examined him on the morning of November 13, 1928, was such that it could not have developed to the state it had in the deceased under forty-eight hours, and an injury or fracture would speed up pneumonia.

Dr. George J. Epp testified that he made a post mortem examination of Kane on November 14, 1928, and found that the deceased was suffering from "bilateral lobar pneumonia, fracture of tenth rib right, superficial abrasions on both knees, chronic nephritis, a chronic myocarditis, cirrhosis of the liver, and chronic fibrous pleurisy right"; that, in his opinion, "bilateral lobar pneumonia caused the man's death"; that, in his opinion, "it was evident that the condition in the right lobe was older than that of the left, and that this condition was older than forty-eight hours at the time of the examination." He could not say how much older than forty-eight hours. There were no puncture wounds of the lung; that the fracture which he found was a recent fracture; that there would be a tendency of a fractured rib to aggravate any condition already existing, "whether it was pneumonia or anything else." Dr. Epp stated that the coroner's verdict was that Kane's death was lobar pneumonia following shock and injuries.

Dr. William C. Weinsberg testified that he examined Kane on November 13, 1928, and found that he could be aroused; that the deceased told him that his lantern went out and after that he had stumbled over a rail in the shed and had fallen. He made an examination of Kane and diagnosed his case as lobar pneumonia. He saw the deceased that night and the following...