Lanahan v. Hydraulic-Press Brick Co.

• Decision Date: 20 December 1932
• Docket Number: No. 22310.,22310.
• Citation: 55 S.W.2d 327
• Parties: LANAHAN et al. v. HYDRAULIC-PRESS BRICK CO.
• Court: Missouri Court of Appeals

55 S.W.2d 327

LANAHAN et al. v. HYDRAULIC-PRESS BRICK CO.

No. 22310.

St. Louis Court of Appeals. Missouri.

December 20, 1932.

Appeal from St. Louis Circuit Court; Albert D. Nortoni, Judge.

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Act by Kathryn Lanahan, widow, and Veronica Dunn, daughter, for the death of William Lanahan, employee, opposed by the Hydraulic-Press Brick Company, employer and self-insurer. From a judgment affirming a final award of the Workmen's Compensation Commission, the employer appeals.

Affirmed.

Eliot, Blayney & Bedel, of St. Louis, for appellant.

Robert E. Hannegan and Robert L. Aronson, both of St. Louis, for respondents.

BECKER, J.

This is an appeal by the employer, self-insurer, from the judgment of the circuit court of the city of St. Louis affirming a final award of the Missouri Workmen's Compensation Commission.

The claim is for the death benefit, and alleges that the death of the employee, William Lanahan, on May 3, 1931, was the result of an accident which occurred April 27, 1931, arising out of and in the course of his employment as a night watchman. The claim alleges that the employee heard noises out in the yard of the employer and opened a door to investigate, when a watchdog owned by the employer and kept at its place of business rushed through the door, running into the employee, causing him to fall and injure his ribs, which ultimately resulted in the employee's death.

The answer to the claim admits that William Lanahan was in its employ as a night watchman on April 27, 1931, and admits the employee's death, but denies any knowledge of the decedent suffering injuries by accident arising out of and in the course of his employment.

A hearing was had before a referee for the commission, at which evidence was introduced by the claimants only. The referee made an award of $150 for burial expenses, and death benefits of $20 per week for 318.5 weeks to Kathryn Lanahan, widow, payable until death or remarriage, the balance, if any, payable to Veronica Dunn, a dependent daughter of the decedent. The award was affirmed by the full commission, and on appeal was affirmed by the circuit court. The employer in due course brings the case here on appeal.

The findings of fact of the referee, which were approved by the full commission, are as follows:

"That the employer had notice of the accident and claim was filed within the time prescribed by law.

"The employee was a night watchman and his duties required him to make frequent trips about the plant during the night punching clocks at different locations. In making his rounds his only companion was a dog and it was not customary for the employee to see a human being during the whole night.

"On the evening of April 27, 1931, employee was taken to his employment by his son in good physical condition and the following morning when the son called for him at the plant the employee showed evidence of being injured. Within several days a representative of the employer called upon the employee at his home and was notified of the injuries the employee had received, and on April 29, 1931, after this visit employee was given an order by his employer to receive medical attention, but he did not have a chance to receive this medical attention as on the morning of April 30, 1931, he was carried from the plant in a city ambulance and conveyed to the city hospital where it was found he had sustained a fracture of three ribs on the right side and it is found from the evidence that as the result of the fractures he developed lobar pneumonia from which he died.

"Aside from the circumstances from which it is clearly shown that employee did sustain the injuries in question while engaged in his work there is cumulative evidence, some of which is hearsay but corroborative and leave little room to doubt the fact that accident did occur in the course of his employment and was the result of the employment.

"Employee left surviving a widow whom he was under legal obligation to support, who is a claimant herein, and he also left a daughter who was physically incapacitated and totally dependent upon employee's earnings (Section 3319, R. S. of Mo. 1929 [Mo. St. Ann. § 3319])."

Appellant's sole contention is that there is not sufficient competent evidence in the record to support a finding that the employee suffered injuries which caused his death as the result of an accident arising out of and in the course of his employment.

In testing the record on the question so raised, we have in mind that under our workmen's compensation statute (Rev. St. 1929, § 3299 et seq., Mo. St. Ann. § 3299 et seq.) the burden of proof is on claimant to show that the injury or death resulted from an accident arising out of and in the course of the employment [Munton v. Driemeier Storage & Moving Co., 223 Mo. App. 1124, 22 S.W.(2d) 61]; also that it has been held that the fact that an employee met with injuries on the premises of his employer during working hours, in itself alone, forms no basis for a presumption that an accident arose out of and in the course of the employment [Stone v. Blackmer & Post Pipe Co., 224 Mo. App. 319, 27 S.W.(2d) 459; Smith v. Levis-Zukoski Merc. Co., 223 Mo. App. 743, 750-751, 14 S. W.(2d) 470, 473; DeMoss v. Evens & Howard Fire Brick Co., 225 Mo. App. 473, 37 S.W.(2d) 961], and that hearsay testimony and declarations not a part of the res gestæ are incompetent, inadmissible, and insufficient to support an award of compensation, if timely objected to and the adverse ruling thereon duly excepted to [Munton v. Driemeier Storage & Moving Co., supra; Lamkins v. Copper-Clad Malleable Range Corp. (Mo. App.) 42 S.W.(2d) 941]. And, since the findings of fact and the award of the commission have the force and effect of the verdict of a jury in determining whether or not the award made by the commission is justified by sufficient evidence, we consider only the evidence most favorable to the claimant, together with all reasonable inferences which may be drawn therefrom to support the conclusion of the commission, and will disregard any unfavorable testimony where it is contradicted by the evidence of the claimants. Schulte v. Grand Union Tea & Coffee Co. (Mo. App.) 43 S.W.(2d) 832; Jones v. Century Coal Co. (Mo. App.) 46 S.W.(2d) 196; Probst v. St. Louis Basket & Box Co. (Mo. App.) 52 S.W.(2d) 501.

There was competent testimony adduced on behalf of the claimant which, if believed, tended to prove that William Lanahan, the deceased, aged 67 years, had been in the employ of the defendant company for nearly 30 years as a stationary engineer and fireman, but that for some 3 or 4 weeks prior to April 26, 1931, his work was shifted to that of night watchman; that as such he reported for work at 5:30 o'clock in the afternoon, and remained on duty until 6 o'clock the following morning; that Joe Lanahan, an adult son, took his father to work each night and called for him again in the morning; that it was a part of the work of the deceased, as watchman, to make regular rounds of the defendant's plant where he worked, and that there were the usual "clocks" to be "keyed" or "rung up" by the watchman, and that such "clocks" were on the circuit of and kept watch over by the Missouri District Messenger Company, so that a failure of the watchman to make his rounds would be recorded by his failing to "key" or "ring up" a clock. It was necessary for the watchman to "key" or "ring in" on these clocks every hour between 6 and 10 p. m., and every fifteen minutes from 10 p. m., until 6 a. m.

The son testified that on the evening of April 26th he drove his father to the defendant's place of business; that his father was "in splendid health" at the time; that when he called for his father on the morning of the 27th, "* * * I kind of noticed my dad was looking funny; I was watching him for a couple of minutes and every once in a while he would put his hand up to his side. * * *" The witness was not permitted to testify what conversation he had with his father, but, in answer to the question whether he had made an examination of his father's back after he had gotten home, he said that he had made such examination and found it marked—"a discolored mark three inches long and about an inch wide on his right side." He testified that he had taken his father direct from the defendant's plant to his home without having stopped anywhere on the way, and that they had had no accident on the way home. He further testified that his mother put hot water bottles on his father's injured side during the day while he was in bed, and up until the time that he and his father returned to the plant that evening, when he accompanied his father to the boiler room; that Mr. Sullivan came in and talked to his father, complaining that he had received notice from the Missouri District Messenger Company that the father had missed ringing in on some of his bells the night before, and asked him why that occurred, and that his father had replied: "Well, I am hurt." Decedent worked again the night of the 28th; that during the day of the 29th, while his father was home and in bed, Mr. McAlone, of the defendant company, called at the house; that when he came in he said: "I understand Mr. Lanahan had an accident over at the shop," and asked to see him. His father thereupon came into the front room where he and Mr. McAlone sat down. Mr. McAlone took out a slip and asked his father how the accident happened; that his father told him in detail; that Mr. McAlone wrote out his answers, and, when he had finished, the decedent signed the statement at McAlone's request. The son further testified that he again took his father to work on the night of the 29th; that, as he was leaving the premises, he met McAlone, who asked him whether his father had come in, and, on being told that he had, McAlone accompanied him to the boiler room, where his father was sitting down....