King v. Mark Twain Hotel

• Decision Date: 31 May 1933
• Docket Number: No. 22591.,22591.
• Citation: 60 S.W.2d 675
• Parties: KING v. MARK TWAIN HOTEL et al.
• Court: Missouri Court of Appeals

60 S.W.2d 675

KING v. MARK TWAIN HOTEL et al.

No. 22591.

St. Louis Court of Appeals. Missouri.

May 31, 1933.

Rehearing Denied June 13, 1933.

Appeal from Circuit Court, Marion County; Vernon L. Drain, Acting Judge.

"Not to be officially published."

Proceedings under the Workmen's Compensation Act by Janet King, claimant, against the Mark Twain Hotel, employer, and the Fidelity & Casualty Company of New York, insurer, for compensation for the death of George Edward King, deceased employee. From a judgment of the circuit court reversing a final award of the Workmen's Compensation Commission denying compensation, and directing the commission to enter an award in favor of the claimant, the employer and the insurer appeal.

Judgment of the circuit court reversed, and cause remanded, with directions.

George A. Hodgman and Albert E. Cunliff, both of St. Louis, for appellants.

Walter H. Juett, Roy Hamlin, and Ben Ely, all of Hannibal, for respondent.

BECKER, Presiding Judge.

This is a workmen's compensation case; the claim being for the death of George Edward King, husband of claimant. The claim was originally heard before a referee, who made an award of compensation. Upon review by the full commission, the award of the referee was reversed and set aside; the commission finding that the employee's death was not the result of an accident arising out of and in the course of his employment. On appeal, the circuit court reversed the final award of the commission and remanded the cause, directing the commission to enter an award in favor of the claimant, in accordance with the original award of the referee. From the judgment of the circuit court, the employer and insurer in due course appeal.

It is here urged on appeal that there was sufficient competent evidence in the record to justify and support the final award of the commission, and that therefore the action of the circuit court in reversing the final award was error. From a careful examination of the record, we have concluded that the point is well taken.

In determining whether there was sufficient testimony to support the finding and award of the commission we have in mind that on appeal, in the absence of fraud, the finding of facts made by the commission within its powers is conclusive and binding, and that such finding of facts and award of the commission have the force and effect of the verdict of a jury. Tassi v. Haase & Sons Fish Co. (Mo. App.) 56 S.W.(2d) 797; Caldwell v. Kreis & Sons (Mo. App.) 50 S.W.(2d) 728; Leilich v. Motor Co., 328 Mo. 112, 40 S.W.(2d) 601; Jones v. Coal Co. (Mo. App.) 46 S.W.(2d) 196; Rolens v. Constr. Co. (Mo. App.) 24 S.W. (2d) 1077; Kinder v. Hannibal Car Wheel & Fdry. Co. (Mo. App.) 18 S.W.(2d) 91. Where the evidence is conflicting on the issue of whether the accident arose out of and in the course of employment, a question of fact is involved for the determination of the commission alone, Sawtell v. Stern Bros., 226 Mo. App. 485, 44 S.W.(2d) 264, loc. cit. 267, and, in testing the sufficiency of the testimony on the whole record to support the findings made, we must look to the evidence which tends most favorably to bear out the view of the case which the commission saw fit to take, Jones v. Coal Co., supra; Schaefer v. Lowell-Krekeler Groc. Co. (Mo. App.) 49 S.W.(2d) 209; Smith v. Shoe Co. (Mo. App.) 49 S.W.(2d) 233; Vollet v. Sign Co. (Mo. App.) 49 S.W.(2d) 201.

If there is sufficient competent evidence to support the commission's award, the court, on appeal, cannot set the award aside as being against the weight of the evidence. Doughton v. Refining Co. (Mo. Sup.) 53 S. W. (2d) 236; Hammach v. Lbr. Co., 224 Mo. App. 570, 30 S.W.(2d) 650; Miller v. Transfer Co., 224 Mo. App. 1114, 32 S.W.(2d) 449.

The record discloses that the claimant is the widow of George King, who was employed by the Mark Twain Hotel at Hannibal, Mo., as "a general all-around man," whose duty it was to take care of the furnace and the hot water heater, and to do certain outside work, such as washing the sidewalk. King was over 80 years of age. He lived with his wife, who was some years younger than he, but who was subject to occasional sick spells. Witnesses testified that, when the wife "had one of her spells," she would send for King to come home from work and take care of her, and that he invariably did so.

A witness, Mrs. Ellen Winkler, adduced on behalf of claimant, testified she lived in the same building with the Kings; that on September 22, 1932, Mrs. King had one of her "spells," and requested her to go to the hotel and get her husband to come home to her; that she went to the basement of the hotel where she found King at work helping a man named Shave, who was an engineer in the employ of the hotel. Shave and King were working on an iron pipe. King was holding the pipe while Shave was working on the pipe, "with a big long wrench, pipe wrench." Mrs. Winkler testified that she told King that his wife was sick and wanted him to come home; that King answered, "I'll be through in a minute," and that Shave stated, "Well, I will hurry up and get through," and with that Shave gave the wrench a jerk; "he jerked the wrench, seemed like kind of angry and it hit King * * * on the right leg or foot or ankle. * * * He put his hand down there and rubbed his ankle and took his sock and pushed it down and the skin had a red bruised place where it hit." After that King accompanied Mrs. Winkler to his home, limping. Mrs. Winkler further testified that she next saw King either the following day or the day thereafter, and that King had his leg on a chair and his wife was bathing it with liniment; "it was all swollen and red"; that Mrs. King called in Dr. T. A. Roselle, who bandaged the leg; and that "after Dr. Roselle bandaged it up we didn't unwrap it any more, but before that I put wrapping on it."

"Q. Was there some sort of pus oozing out? A. Yes, sir.

"Q. At the place where he got hurt? A. Yes, sir.

"Q. At the place where you saw him get hurt? A. Yes, sir.

"Q. I will get you to state whether or not that swelling continued to be in the leg and the discoloration of the leg continued up until the time he went to the hospital? A. Yes, sir, he looked awful."

On October 3, 1931, Dr. Roselle sent King to the hospital, where he died three days thereafter from blood poisoning and senility. The hospital records show that at the time of his demise he was suffering with "cellulitis of the leg, septicemia, and senility."

Dr. T. A. Roselle testified that he was city physician of the city of Hannibal; that he was called in to administer to George King some four or five days before he sent him to the hospital. He saw him two or three times. When he first saw him his right leg "was swollen quite a little. The patient had fever; noticed an abrasion on King's right foot. It looked like he had an infection; * * * that is what we call blood poisoning, streptococcus infection. * * * You might call it septicemia or septic condition from a wound." The next time the doctor called, King said his leg was better, but the next time he saw him the leg "looked bad and was paining him, and then I made an examination of his leg. * * * As far as getting a history is...