Kerby v. Missouri State Highway Commission
| Decision Date | 02 April 1951 |
| Docket Number | No. 21507,21507 |
| Citation | 238 S.W.2d 464 |
| Parties | KERBY v. MISSOURI STATE HIGHWAY COMMISSION et al. |
| Court | Missouri Court of Appeals |
Crawford & Harlan, Earl T. Crawford, and Samuel P. Harlan, all of Sedalia, for appellant.
John T. Martin and Martin & Gibson, all of Sedalia, for respondents.
BOUR, Commissioner.
This is an appeal from a judgment of the circuit court affirming a final award of the Industrial Commission in a proceeding under the workmen's compensation law. Claimant-appellant is the widow of the deceased employee, Robert E. Kerby. The defendants are the employer and the insurer. The appeal is here because of the amount involved. Const. of 1945, Art. V, secs. 3, 13, Mo.R.S.A. The average weekly wage of the employee was admitted to be $26.40, and claimant concedes that 'the maximum amount of compensation which can be claimed for this employee's death is $5680.00.' Sec. 287.240, R.S.Mo.1949, Mo.R.S.A. Sec. 3709.
The claim filed June 23, 1948, alleged that on April 26, 1946, Robert E. Kerby suffered accidental injuries while lifting a concrete slab into a truck; that the accident occurred in the course of and arose out of his employment by the Missouri State Highway Commission; that as a result of the accident his 'heart, muscles, nerves and veins thereof, the sympathetic nerve, the stomach, and surrounding region' were injured; that such injuries caused his death on June 16, 1948.
The defendants, in their answer, denied that the 'employee sustained any accident as alleged which resulted in bodily injury as claimed or occasioned the disability from which he suffered or which caused his death,' and alleged that 'the employee's disability and death were attributable to disease, and particularly coronary thrombosis and its producing causes, and that such conditions developed through and by reason of natural causes.'
The matter was heard before a referee who found 'from all the evidence that claimant failed to prove that employee's death was the result of an accident arising out of and in the course of his employment as alleged, therefore, compensation must be and is accordingly denied.' Upon review, the full commission made the same finding and denied compensation. Claimant appealed to the circuit court, which affirmed the final award of the commission. The appeal to this court was then perfected. A rather detailed review of the evidence is required.
The record shows that the employee, Robert E. Kerby, filed a claim for compensation on account of the alleged injury here in question, and while that claim was pending his deposition was taken by the employer and its insurer. At the hearing in the present case the claimant offered this deposition in evidence, and it was admitted without objection. Kerby testified that on April 26, 1946, he was working with other members of a crew loading broken concrete slabs into trucks; that about 3:30 that afternoon as he was attempting to lift a piece of concrete into a truck, it caught on the side of the truck bed and 'started back'; that he caught it between his chest and the truck bed and held it there until he got his hands under it and 'pushed it over'; that as he 'started over with it' he had a sharp pain in his chest--'the lower end of the breast bone'--and another such pain as he pushed the piece of concrete over the top of the truck bed. He was unable to estimate the weight or size of the piece of concrete. He further testified that the piece of concrete did not actually fall as he had his hands on it at all times, and it only 'came back' about a foot; that when his foreman arrived about five minutes later, he told him that 'something happened' and that he 'felt pretty bad, but didn't tell him what happened'; that he worked the rest of the day but did not lift any heavy objects; that he returned to work the next day (Saturday); that the following Monday he consulted Dr. W. E. Walker, a practicing physician at La Monte, Missouri; that he worked on May 2d and 3d and for a time on May 4th, 1946, but not thereafter.
Kerby further stated that after the occurrence in question he 'got sore all over and stayed that way until I began having those coronary pains'; that about May 15 1946, he had 'a spell of something like indigestion' and a similar attack on May 28th; that on June 3d or 4th he had a severe attack which lasted about thirty minutes, during which time he could hardly breathe and he suffered from severe pain in his chest; that he had another attack that same afternoon, followed by similar attacks during the next few days; that on June 12, 1946, he entered Research Hospital in Kansas City, where he remained for six weeks; that upon returning home he went to bed and stayed there for ten weeks, and continued: He further testified that prior to April 26, 1946, he had been in good health. His deposition was taken on August 8, 1947, and he died on June 16, 1948.
The claimant testified that on April 26, 1946, the date of the alleged accident, her husband was brought home by his foreman, Earl Miller; that he was 'complaining of pain' and had a 'red place' in the 'pit of his stomach'; that the skin was not broken and there was 'no dark, black or blue area, indicating a bruise'; that the 'red place' was just a 'red streak' about three inches long; that in June, 1946, he was taken to Research Hospital in Kansas City, where he remained for six weeks under the care of Dr. Davis and Dr. Saunders; that he was in bed for ten weeks after he returned home; that thereafter his condition improved, but it got 'considerably worse' in February, 1948, at which time it was discovered that he had an umbilical hernia. In March, 1948, he was taken to a hospital where he remained for three weeks. He died at his home. Claimant further testified that her husband was 68 years of age at the time of his death, and that she was his sole dependent; that he had been in good health prior to April 26, 1946, but he never worked after that date.
On April 26, 1946, Kerby was working with a crew under a foreman named Earl G. Miller, who testified as a witness for claimant that he was not present at the time of the alleged accident, and continued: 'I'd been gone until about three in the afternoon and came back, Mr. Kerby said to me, he said 'Earl I got a lick." Miller stated that he told Kerby to 'get a drink and sit down and rest, and he did,' but a short time thereafter 'he was out picking up small rocks'; that the crew 'loaded up a load to take up to another place' and Kerby 'complained of getting so sore on the road, the jerking of the truck on the trip just hurt his muscles, and such as that, now, that is about all I can tell you about that part of it.' Miller further testified that Kerby returned to work the next morning (Saturday) but complained of being sore 'right at the lower end of the breast bone'; that 'you could tell when he stooped over there was something bothering him, he went at it very easy'; that the following Monday he performed light work all day, but complained of pains and 'couldn't hardly get around'; that he did not work on Tuesday or Wednesday, but he worked the following Thursday and Friday and until about 11 a. m. on Saturday, when the witness took him home because he continued to complain; and that he did not work thereafter.
George D. Swope testified that he had known Kerby for many years and he appeared to be in good health prior to April 26, 1946.
Dr. W. E. Walker, a physician at La Monte, Missouri was called as a witness for claimant. As indicated above, the employee first consulted this doctor on April 29, 1946, three days after the accident. Dr. Walker testified that he 'saw Mr. Kerby 677 days, he was sick 782 days.' When Kerby came to his office on April 29, he complained of soreness and pain in the umbilical region, but did not mention any accidental injury. The doctor concluded that he was suffering from an intestinal ailment and gave him some medicine. On May 2, he found 'more soreness, tense across the umbilical region, some more or less pain up to the bottom of the ribs.' The doctor stated that he 'gave the heart a thorough going over' and 'couldn't detect anything with the ear or stethoscope,' but admitted that some heart ailments cannot be detected 'with the ear.' About the same time (the exact date is not indicated), Kerby told him about 'catching the big rock and about getting it into the truck.' The doctor then concluded that the patient had received a blow in the umbilical region which resulted in an injury to 'the dorsal ganglia of the sympathetic nerve center.' He stated that such an injury could cause almost any condition, including heart trouble. This witness stated that on or about January 11, 1948, he discovered Kerby was suffering from 'what we call a potential hernia' in the umbilical region. He concluded from the appearance of the potential hernia that it was caused by the alleged accident and this, he said, confirmed his theory that Kerby received a blow which injured the nerve mentioned above.
Dr. Walker further testified that Kerby did not have 'any clot,' nor did he have and that in his opinion 'this slab falling that distance could cause that trouble.' He said the immediate cause of death was myocardiac degeneration, meaning a degeneration of the heart muscles to the point where the heart ceased to function, and stated: ...
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