McComosh v. Shapleigh Hardware Co.

• Decision Date: 03 July 1931
• Docket Number: No. 21548.,21548.
• Parties: McCOMOSH v. SHAPLEIGH HARDWARE CO. et al.
• Court: Missouri Court of Appeals

40 S.W.2d 728

McCOMOSH v. SHAPLEIGH HARDWARE CO. et al.

No. 21548.

St. Louis Court of Appeals. Missouri.

July 3, 1931.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by James McComosh, employee-claimant, opposed by the Shapleigh Hardware Company, employer, and T. H. Mastin & Co., insurer. Award of the Compensation Commission in favor of claimant was affirmed by the circuit court, and the employer and insurer appeal.

Affirmed.

Fordyce, Holliday & White, of St. Louis, for appellants.

Frank P. Nuelle, of St. Louis, for respondent.

BECKER, J.

This is an appeal from the judgment of the circuit court of the city of St. Louis affirming the final award of the Missouri Workmen's Compensation Commission in favor of Joseph McComosh, employee, against the Shapleigh Hardware Company, employer, and T. H. Mastin & Co., insurer, for injuries alleged to have been sustained by said employee on September 12, 1927, while he was employed as a watchman by said employer at its plant in St. Louis.

Claimant, on said date, while making his rounds of the employer's plant, found that a window had been left open in the basement. The window was propped up and held open by a stick. He removed the stick and the window in closing scattered particles of dirt and dust, some of which got into plaintiff's right eye, resulting in injury thereto.

The claim was originally heard by a single commissioner, whose finding and award, upon review, was affirmed by the full commission, and upon appeal to the circuit court the findings as to the award were affirmed. The employer and insurer, in due course, bring this appeal.

The only point raised here on appeal has reference to the allowance of the sum of $250 for medical aid, it being urged by appellants that the claimant failed to prove that he ever requested medical treatment of the employer, as provided by the provisions of the Compensation Act, and so, in fact, failed to adduce sufficient competent evidence to warrant the commission in awarding the allowance for medical aid.

The propriety of this item or portion of the award is to be determined from the provisions of section 13 of the act (Laws 1927, p. 498), where it is provided that, in addition to all other compensation, the employee shall receive, and the employer shall provide, such medical, surgical, and hospital treatment, including nursing, ambulance, and medicines, as may reasonably be required for the first sixty days after the injury or disability, to cure and relieve from the effects of the injury, not exceeding in amount the sum of $250; that thereafter such additional similar treatment shall be provided within one year from the date of the injury as the commission by special order may determine to be necessary; that, if the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense; and that, if it be shown to the commission that the requirements are being furnished in such manner that there is reasonable ground for believing that the life, health, or recovery of the employee is endangered thereby, the commission may order a change in the physician, surgeon, hospital, or other requirement.

We direct our attention, therefore, to the question whether there is any substantial evidence to support the finding of the commission, on the question of the allowance for medical aid. If there is such evidence, then the finding being a finding of fact, is as conclusive on appeal as the verdict of a jury. Wheat v. Whitney (Mo. App.) 34 S.W.(2d) 158; State ex rel. Syrup Co. v. Compensation Comm., 320 Mo. 893, 8 S.W.(2d) 897; Kinder v. Car Wheel Co. (Mo. App.) 18 S.W.(2d) 91; Hammack v. Lbr. Co. (Mo. App.) 30 S.W.(2d) 650.

We have read the record, and have come to the conclusion that sufficient substantial evidence is contained therein to support the finding of the commission as to the necessary medical aid not furnished by the...