Keller v. Bechtel, McCone, Parsons Corporation

• Decision Date: 02 November 1943
• Docket Number: No. 26412.,26412.
• Parties: KELLER v. BECHTEL, McCONE, PARSONS CORPORATION et al.
• Court: Missouri Court of Appeals

174 S.W.2d 925

KELLER v. BECHTEL, McCONE, PARSONS CORPORATION et al.

No. 26412.

St. Louis Court of Appeals. Missouri.

November 2, 1943.

Appeal from Circuit Court, Pike County; Theo. C. Bruere, Jr., Judge.

"Not to be reported in State Reports."

Proceeding under the Workmen's Compensation Act by Walter Keller, employee, opposed by Bechtel, McCone, Parsons Corporation, employer, and the Travelers Insurance Company, insurer. From a judgment reversing an award of no compensation, the employer and insurer appeal.

Reversed and remanded with directions.

Fuller, Fuller & Ely, of Hannibal, for appellants.

May & May, of Louisiana, for respondent.

HUGHES, Presiding Judge.

This is an appeal by the employer and its insurance carrier from a judgment of the Circuit Court of Pike County, Missouri, reversing an award of no compensation made by the Compensation Commission.

The claimant, respondent here, was employed as a common laborer by appellant Bechtel, McCone, Parsons Corporation, and on Friday the 27th day of March, 1942, was engaged in digging a ditch at the employer's plant. The ditch was about four feet deep and there was mud in the bottom thereof which was nearly knee deep, and claimant was standing in the mud and shoveling the mud and dirt over the side of the ditch a distance of about five or six feet. He had been doing this work all day, and he said that, "You had to throw it (the mud), hard to get it off the shovel, and twist yourself in the throwing." Just before quitting time in the afternoon, after throwing out a shovel of mud, he said he had a sickening feeling and it felt like a cramp in his right side.

On cross-examination claimant testified as follows:

"Q. When did you feel this pain at the up-swing of your shovel? A. I was in the twist, Mister, when we had to turn.

"Q. You didn't fall? A. No, sir.

"Q. Was the twist any more unusual than the others that you had made? A. I had been working there all day and made several.

"Q. You had been working there all day? A. Yes, sir.

"Q. And that happened about 4:20 in the afternoon? A. Yes, sir.

"Q. Made the same kind of twists before without any bad results? A. I don't know that I went that far.

"Q. Nothing unusual occurred except that you felt a pain? A. That is the way it was."

Claimant continued work until quitting time, and went back and worked the next day, although his side was bothering him, and it continued to bother him until the following Friday, April 3rd, when he went to Dr. Cunningham. The doctor examined him but at that time could not find evidence of any hernia and diagnosed it as a strain, but told claimant to return in a few days. Claimant returned to the doctor about the 11th of April, and the doctor's diagnosis then was that claimant had an inguinal hernia, indirect, right. The doctor testified; "I heard the testimony about the work that he was doing at the time. That kind of work could have caused a hernia. I would say it brought it down or brought it through, I know it came through at that time, if he felt the pain while he was doing the work. Of course, we feel that there is a weakness from which hernia is caused; that is more or less established in medical circles, that there is a weak spot where a hernia could occur. The hernia is caused by a strain."

In view of these facts the question presented is whether there was substantial proof on which to base the finding of the Commission that the condition complained of by the employee was not the result of an accident arising out of and in the course of his employment.

Section 3695(b) of the Workmen's Compensation Law, Chapter 29 R.S. 1939, Mo.R.S.A. § 3689 et seq., construes the word "accident" as used in the law 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. It has been definitely decided by our Supreme Court that the injury itself does not constitute the "event" or "accident", because if it did it would make the act provide for insurance against disease and injury rather than against accident. State ex rel. Hussman-Ligonier Co. v. Hughes, 348 Mo. 319, 153 S.W.2d 40. And so in order to recover the employee must not only show that the condition complained of came upon him as a result of or during the course of the work in which he was engaged, but he must go one step further and show that the condition was the result of an accident. In other words, proof of "accident" is necessary. State ex rel. Hussman-Ligonier Co. v. Hughes, supra. And the burden is on the employee claiming compensation to show that the injury resulted from an accident within the meaning of the term as defined by the statute. De Lille v. Holton-Seelye Co., 334 Mo. 464, 470, 66 S.W.2d 834. If the evidence is such as to authorize a finding either that there was an accident or that there was not an accident, and the commission, who are the triers of the facts, find against the employee's claim, that...