Karch v. Empire Dist. Elec. Co.

• Decision Date: 14 March 1949
• Docket Number: 40959
• Citation: 218 S.W.2d 765,358 Mo. 1062
• Parties: Elsie Karch (nee Sledge) and Lee Retta Jane Sledge, Dependents of Cecil P. Sledge, Deceased, (Claimants) Respondents, v. The Empire District Electric Company, Employer and Self-Insurer, (Defendant) Appellant
• Court: Missouri Supreme Court

218 S.W.2d 765

358 Mo. 1062

Elsie Karch (nee Sledge) and Lee Retta Jane Sledge, Dependents of Cecil P. Sledge, Deceased, (Claimants) Respondents, v. The Empire District Electric Company, Employer and Self-Insurer, (Defendant) Appellant

No. 40959

Supreme Court of Missouri

March 14, 1949

Appeal from Lawrence Circuit Court; Hon. Emory E. Smith Judge.

Reversed and remanded (with directions).

Ralph Baird and Richard K. McPherson for (defendant) appellant.

(1) The burden of proof upon the issues as to whether: (a) The decedent sustained an accident, and (b) If so, did it occur in the course of his employment, and (c) If so, did death result from a compensable injury, was upon the claimants. Miller v. Ralston Purina Co., 109 S.W.2d 866, 341 Mo. 811; Meintz v. Arthur Morgan Trucking Co., 132 S.W.2d 110, 345 Mo. 251; Smith v. Levis-Zukorski Mercantile Co., 14 S.W.2d 470, 223 Mo.App. 743; Hunt v. Armour & Co., 136 S.W.2d 312, 345 Mo. 677. (2) Because the award and findings of the Commission are supported by the weight of the evidence and reasonably made upon consideration of all the evidence before it, the court erred in capriciously setting aside said award and findings and substituting its judgment on the evidence for that of the Commission. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 200 S.W.2d 55, 355 Mo. 1153; Rogers v Reorganization Inv. Co., 200 S.W.2d 563; Crawford v. Sheahan Granite Co., 211 S.W.2d 52. (3) The court erred in failing to affirm the award, because there is no competent evidence in the record to support an award and findings that the employee sustained an injury by accident arising out of and in the course of his employment. Stone v. Blackmer & Post Pipe Co., 27 S.W.2d 459, 224 Mo.App. 319; Reis v. DeBord Plumbing Co., 186 S.W.2d 488; De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961, 225 Mo.App. 473; In re Gooch, 145 A. 737; Andrew v. Industrial Society, 2 K.B. 32.

Jo B. Gardner for (claimants) respondents.

(1) Referee Kinder heard all the testimony which will settle the question of whether deceased's injury arose out of and in the course of his employment. Referee Kinder was then replaced by Referee Wymore. The testimony before Wymore was largely medical and dealt with the cause of Sledge's death. The testimony before Referee Kinder was transcribed and furnished to Referee Wymore, but Wymore did not have the advantage of seeing or observing any of the witnesses who testified before Referee Kinder. Of course, the entire Commission saw and heard none of the witnesses. Referee Wymore was in no better position than is this court to determine the question of whether or not deceased's injury arose out of and in the course of his employment. The rule, therefore, which requires that due deference be given to the referee who heard the testimony has no application to this case. Neil v. Cunningham, 149 Mo.App. 53, 130 S.W. 503. (2) The medical testimony offered by appellant in an effort to contradict the death certificate raises no issue of fact. Frank v. Atlanta Life Ins. Co., 211 S.W.2d 940. (3) Deceased's injury arose out of his employment. Southern Colorado Power Co. v. Industrial Commission, 193 P.2d 885; Roe v. Boise Grocery Co., 21 P.2d 910; 71 C.J., pp. 647, 8653; Goetz v. J.D. Carson Co., 206 S.W.2d 530; Indemnity Ins. Co. v. Garsee, 54 S.W.2d 817; City of North Wildwood v. Cirelli, 29 A.2d 893, 131 N.J. Law 302; Morrow v. Orschlen Bros. Truck Lines, 151 S.W.2d 138, 235 Mo. 1166; Buckner v. Quick Seal, Inc., 118 S.W.2d 100, 233 Mo.App. 273; Van Kirk v. Hume-Sinclair Coal Mining Co., 49 S.W.2d 631, 226 Mo.App. 1137; Wessel v. St. Louis Car Co., 136 S.W.2d 388, 235 Mo.App. 499. (4) Deceased's injury was received in the course of his employment. Zimmerman v. Goodfellow Lumber Co., 56 S.W.2d 608; Reeves v. Fraser-Brace Engineering Co., 172 S.W.2d 274, 237 Mo.App. 473; Leilich v. Chevrolet Motor Co., 40 S.W.2d 601, 328 Mo. 112. (5) Deceased's death was caused by a tick bite. Sec. 9781, Mo. R.S.A. 1939; Frank v. Atlanta Life Ins. Co., 211 S.W.2d 940.

Dalton, C. Bradley and Van Osdol, CC., concur.

OPINION

DALTON

This is an appeal by the employer and self-insurer from a judgment of the circuit court of Lawrence county. The judgment reversed a final award of the Industrial Commission which had denied compensation (death benefits) to claimants who are the widow and fourteen year old daughter of the deceased employee, Cecil P. Sledge. The circuit court found that the award of the Commission was contrary to the overwhelming weight of the evidence; and that, upon the whole record, the findings and award of the Commission were not supported by competent and substantial evidence. The cause was remanded to the Commission with directions to make and enter an award in favor of claimants.

The amount involved ($ 10,800.00) gives this court jurisdiction. Sec. 3, Art. V, Const. of Missouri 1945. The average weekly wage of the employee upon which benefits would be figured was admitted to be $ 54.00. Sec. 3709 R.S. 1939, as amended Laws 1943, pp. 1073 and 1076; Shroyer v. Missouri Livestock Commission Co., 332 Mo. 1219, 61 S.W.2d 713, 715.

The claim was based upon an alleged accidental injury, towit, a tick bite under the right arm, suffered on July 23, 1945, near Aurora, Missouri, and resulting in death on July 24, 1945. Claimants alleged that the deceased employee was a lineman for appellant and was engaged in digging holes, climbing and setting poles and trimming trees; that his work required him to be in tick-infested areas; and that, as a result of an accident arising out of and in the course of his employment, he was bitten by a tick on July 23, 1945 and died on July 24, 1945, "from coronary thrombosis as a result of such tick bite or bites." The testimony of certain witnesses was heard by Honorable Francis M. Kinder, Referee. Thereafter, a transcript of the testimony of these witnesses was offered at a hearing before Honorable Carl F. Wymore, Referee, and the testimony of other witnesses was heard and an award of no compensation was entered. Most of the widow's testimony was reviewed orally before this Referee and all of the medical testimony was heard before him. The Referee found "from all the evidence that the death of Cecil P. Sledge, employee herein, was not the result of an accident arising out of and in the course of his employment on or about July 23, 1945, as alleged." On review before the full Commission, findings in substantially the same words were entered and a final award made denying compensation.

Appellant contends that the findings and award were supported by competent and substantial evidence upon the whole record; that such findings and award were not contrary to the overwhelming weight of the evidence; and that the circuit court erred in reversing the award of the Commission. A rather detailed review of the evidence is required.

The testimony of claimants' witnesses tended to show that the employee, hereinafter referred to as the deceased, had been in appellant's employment for some six weeks prior to his death. He resided on a farm located about nine miles southeast of Aurora and, each day, drove his own automobile to and from appellant's headquarters at Aurora. From Aurora the employees were taken to and from their work in the employer's truck. The regular period of work was eight hours, with occasional overtime. Claimant (widow) testified that deceased's health was very good and that he worked every day. His foreman testified that "he seemed to be in fair condition."

On Saturday, July 21, 1945, the deceased and other employees were engaged in building an extension line about seven miles east of Aurora, digging holes, setting poles and stringing wire along an east-west public road from the Garner farm to the Marks farm. Deceased topped two walnut trees, trimmed some soft maples and dug two post holes near Garner's house. The holes were dug in the fence row, adjacent to pasture land, which had grown up in grass and weeds. Some ten head of cattle used in this pasture, grazed to the fence and waded in and stayed about a pond, which was located about 150 feet from the road. The fence row was "grown up" with "more or less sagebrush" and some blackberry bushes. The employees took their lunches and usually sat down in a fence row to eat, but where they ate on this day does not appear. What particular kind of work deceased had been doing prior to this date, and where he had been working, does not appear from the evidence.

The deceased was at home Saturday night and Sunday (July 21st and 22nd). (There was, however, testimony that he was seen Saturday pumping up his truck tires at a little country store near where he lived). He woke up Sunday morning with a severe headache, he seemed to be exhausted and he ached all over. The aches extended across his forehead, down the back of his neck and in his arms and legs. He was sick, stayed in bed most of the day (Sunday) and didn't want to do anything except lie around. He only left the house to go to the toilet, which was located a short distance away. When he went to work on Monday (23rd), he was still sick and complained of headache. That day he worked in the southwestern edge of Clever, near the Tampa King place, building a line down the west side of a country road, right next to the fence. The fence row adjoined pasture land and there were calves in the field. There was some underbrush, a few saplings, trees and sagebrush and "stuff like that" in this fence row. It was a hot day, the men got in the shade of a big wild cherry tree, just south of where Sledge was working, and wiped sweat and talked awhile. They also sat down and ate lunch in the shade of a tree. Deceased only went into the brush while he was on duty.

Deceased had...