Kripplaben et al. v. Iron & Steel Co. et al., 22027.

• Decision Date: 07 June 1932
• Docket Number: No. 22027.,22027.
• Citation: 50 S.W.2d 752
• Parties: ELLA KRIPPLABEN AND KARL KRIPPLABEN, RESPONDENTS, v. JOS. GREENSPON'S SONS IRON AND STEEL COMPANY, AND HARTFORD ACCIDENT AND INDEMNITY COMPANY, APPELLANTS.
• Court: Missouri Court of Appeals

50 S.W.2d 752

ELLA KRIPPLABEN AND KARL KRIPPLABEN, RESPONDENTS, v. JOS. GREENSPON'S SONS IRON AND STEEL COMPANY, AND HARTFORD ACCIDENT AND INDEMNITY COMPANY, APPELLANTS.

No. 22027.

St. Louis Court of Appeals. Missouri.

Opinion filed June 7, 1932.

Appeal from the Circuit Court of the City of St. Louis. — Hon. M. Hartmann, Judge.

AFFIRMED.

Jacob M. Lashly, Harold C. Ackert and Holland, Lashly & Donnell for appellants.

(1) A death from heat prostration is not compensable under the Missouri Workmen's Compensation Act unless it appears that there were some peculiar, unusual or extraordinary conditions about the employment subjecting the employee to greater hazard from heat exhaustion than other persons in the vicinity or locality, and the record in this case not only contains insufficient evidence to sustain the award of the commission, but, on the contrary, the record affirmatively shows that the deceased employee was not exposed to any greater hazard from the heat than others in the same vicinity. Stone v. Blackmer & Post Pipe Co., 27 S.W. (2d) 459; Morris v. Dexter Mfg. Co., 40 S.W. (2d) 750; Roach v. Kelsey Wheel Co., 167 N.W. 33; Campbell v. Brewery Co., 171 N.Y. Supp. 522; Dougherty's Case, 131 N.E. 167; Pyper v. Manchester Liner, 2 K.B. 691; Lewis v. Industrial Commission, 190 N.W. 101; Slocum v. Jolley, 138 Atl. 244; Miskowiak v. Bethlehem Steel Co., 145 Atl. 199; Walsh v. River Spinning Co., 41 R.I. 490; Rau v. District Court, 138 Minn. 250, 164 N.W. 916; Ahern v. Spier, 93 Conn. 151, 105 Atl. 340; Warner v. Couchman, 1 K.B. 351, 13 A.L.R. 974. (2) The absence of facts from the record cannot be supplied by opinion testimony upon subjects within the common experience and knowledge of man kind. A college professor has no especial training for understanding simple facts about whether it is cooler in the sun or in the shade on a hot day than workmen of ordinary experience. Such testimony should be ignored as though it had never been given. Benjamin v. Street R.R. Co., 133 Mo. 274; Lee v. Knapp & Co., 155 Mo. 610; McAnany v. Henrici, 238 Mo. 103.

Joseph H. Brogan and Holland R. Polak for respondents.

(1) On review of Compensation Commission's finding of fact, appellate court is precluded from weighing evidence. And where the facts are in dispute, finding of commission is conclusive and binding on appeal, if there is substantial evidence to support it. Leilich v. Chevrolet Motor Co., 40 S.W. (2d) 601; Sanders v. Central Building Materials Company, 43 S.W. (2d) 863; Simmons v. Mississippi River Fuel Co. (St. L. Ct. App.), 43 S.W. (2d) 868; Jackson v. General Metals Refining Company (St. L. Ct. App.), 43 S.W. (2d) 865; McComosh v. Shapleigh Hardware Company (St. L. Ct. App.), 40 S.W. (2d) 728, l.c. 729. (2) In determining sufficiency of evidence to sustain commission's finding of facts, only evidence most favorable to support same will be considered, together with all reasonable inferences; and any unfavorable testimony, where contradicted by the evidence of the claimant, will be disregarded. Jackson v. General Metals Refining Co., 43 S.W. (2d) 865; Sanders v. Central Bldg. Materials Co., 43 S.W. (2d) 863; Simmons v. Mississippi River Fuel Corporation, 43 S.W. (2d) 868; Schulte v. Grand Union Tea & Coffee Company, 43 S.W. (2d) 832, 833; Betz v. Telephone Co., 24 S.W. (2d) 224. (3) The commission's finding of fact that employe's death was the result of heat exhaustion resulting from an unusual exposure to heat, incidental to his employment, was amply supported by the evidence; and such a state of facts constitutes a compensable case, according to the law of this State and of other States where the Workmen's Compensation Act is substantially the same as in this State. Cunningham v. Donovan, 93 Conn. 313; Ahern v. Moritz Spier, 93 Conn. 151; City of Joliet v. The Industrial Commission et al., 291 Ill. 555; Becton v. Deas Paving Co., 3 La. App. 683; State ex rel. Rau v. District Court, 138 Minn. 250; Kanscheit v. Garrett Laundry Co., 101 Neb. 702; Young v. Western Furniture & Mfg. Co., 101 Neb. 696; Joseph Murray v. Cummings Construction Co., 232 N.Y. 507; Lane v. Horn & Hardart Baking Co. (Sup. Ct. of Penn.), 104 Atl. Rep. 615, 17 Neg. & Comp. Cases Ann. 998; Walsh v. River Spinning Co., 41 R.I. 490; King v. Buckeye Cotton Oil Co., 155 Tenn. (2 Smith) 491; Ismay, Imrie & Co. v. Williamson, Law Rep. A.C. (1908), 437, 439; Maskery v. The Lancashire Shipping Co., Ltd., vol. 6, Neg. & Comp. Cases Ann., page 708; General Statutes of Connecticut (Revision of 1930), vol. II, sec. 5226; Cahill Ill. Rev. Statutes 1913, chap. 48, sec. 201; Constitution & Statutes Louisiana (Wolff), 1920, vol. 1, 709, 723; Mason's Minnesota Statutes 1927, vol. 1, chap. 23A, secs. 4261, 4326; Compiled Statutes Nebraska (1929), chap. 48-101, 48-152; McKinney's Consol. Laws New York Ann. (1922), Book 64, Workmen's Compensation Law, 28, 77; Purdon's Dig. Laws Pennsylvania (1905-1915), 7779; Gen. Laws of Rhode Island (1923), 406; Ann. Code of Tennessee (Shannon), Sup. 1926, Session Laws 1917-1925, sec. 3608A 139, 3608A 138. (4) Compensation Law must be reasonably and liberally construed in favor of employe (R.S. 1929, sec. 3301). If there is any doubt, such doubt should be resolved in favor of employe. Sawtell v. Stern Bros. & Co., 44 S.W. (2d) 264; Pruitt v. Harker, 43 S.W. (2d) 769; Howes v. Stark Bros. Nurseries and Orchards Co., 223 Mo. App. 793, 22 S.W. (2d) 839-844; Betz v. Columbia Telephone Co., 224 Mo. App. 1004, 24 S.W. (2d) 224; Carrigan v. Western Radio Co., 44 S.W. (2d) 245.

SUTTON, C.

This is an action for compensation under the Workmen's Compensation Act, for the death of Arthur Kripplaben, an employee of the defendant Jos. Greenspon's Sons Iron and Steel Company. Plaintiff Ella Kripplaben is the dependent widow of the employee, and Karl Kripplaben is his dependent son. Defendant Hartford Accident and Indemnity Company is the insurer of defendant Jos. Greenspon's Sons Iron and Steel Company against liability to its employees under the compensation act. The commission awarded compensation. Defendants appealed from this award to the circuit court. From the judgment of the circuit court, affirming the award of the commission, the defendants have appealed to this court.

The decedent, Arthur Kripplaben, was in the employ of defendant Jos. Greenspon's Sons Iron and Steel Company, on July 11, 1930, at its pipe yard in St. Louis, and had been in its employ for approximately five years prior to that date.

The commission found that "the employe's death was the result of heat exhaustion resulting from an unusual exposure to heat incidental to his employment."

There is no contention here that the evidence does not justify the finding that the decedent's death resulted from heat exhaustion. The sole contention is that there is no evidence to justify the finding that the heat exhaustion resulted from an unusual exposure to heat incidental to the employment. The applicable rule, which is invoked by the defendants, is that if an employe, because of his duties, is exposed to a special or peculiar danger from the elements, such as heat, cold, lightning or windstorm — a danger that is greater than that to which other persons in the community are subjected — an injury resulting from such exposure is compensable under the compensation act. If the character of the employment is such as to intensify the risk, the resulting injury is compensable. The causative danger must be peculiar to the work, and not common to the neighborhood. In other words, an injury resulting from the elements, like any other injury, to be compensable, must arise out of the employment, as well as in the course of the employment. [Morris v. Dexter Mfg. Co., 225 Mo. App. 449, 40 S.W. (2d) 750; Sweeny v. Sweeny Tire Stores Co., 227 Mo. App. 93, ante; Cunningham v. Donovan, 93 Conn. 313, l.c. 315; Ahern v. Moritz Spier, 93 Conn. 151, l.c. 154; City of Joliet v. Industrial Commission, 291 Ill. 555, l.c. 556; State v. District Courts, 138 Minn. 250; Kanscheit v. Garrett Laundry Co., 101 Neb. 702; Young v. Western Furniture & Mfg. Co., 101 Neb. 696, l.c. 699; Murray v. Cummings Const. Co., 232 N.Y. 507; Walsh v. River Spinning Co., 41 R.I. 490, l.c. 499; King v. Buckeye Cotton Oil Co., 155 Tenn. 491, 296 S.W. 3.

We think the facts here make out a compensable case under this rule. The decedent, at the time he was stricken, which was between twelve and one o'clock on Friday, July 11, 1930, was working at a threading machine, cutting threads on iron...