Meintz v. Arthur Morgan Trucking Co.

• Decision Date: 03 November 1939
• Docket Number: 36406
• Citation: 132 S.W.2d 1010,345 Mo. 251
• Parties: Esther Meintz, Dependent of Fred Meintz, Appellant, v. Arthur Morgan Trucking Company, Incorporated, Employer, and Aetna Casualty & Surety Company, a Corporation, Insurer
• Court: Missouri Supreme Court

132 S.W.2d 1010

345 Mo. 251

Esther Meintz, Dependent of Fred Meintz, Appellant, v. Arthur Morgan Trucking Company, Incorporated, Employer, and Aetna Casualty & Surety Company, a Corporation, Insurer

No. 36406

Supreme Court of Missouri

November 3, 1939

Appeal from Circuit Court of City of St. Louis; Hon. Frank B Coleman, Judge.

Affirmed.

Ely & Derrick for appellant.

(1) There is not sufficient, competent evidence in the record to support or warrant the making of the award of the Workmen's Compensation Commission. Adams v. Lilbourn Grain Co., 48 S.W.2d 147; Kimmie v. Terminal Railroad Assn., 66 S.W.2d 561; Kenzer v. Ely & Walker Dry Goods Co., 48 S.W.2d 167; State ex rel Ely & Walker Dry Goods Co. v. Cox, 73 S.W.2d 743; Bicanic v. Kroger, 83 S.W.2d 917; Woods v. Amer Coal & Ice Co., 25 S.W.2d 144; Platies v. Theodorow Bakery Co., 79 S.W.2d 504; Kristanik v. Chevrolet Motor Co., 70 S.W.2d 890; Snorgrass v. Cudahy Packing Co., 83 S.W.2d 226; Sawtell v. Stern Brothers & Co., 44 S.W.2d 264; Metting v. Lehr Const. Co., 32 S.W.2d 121. (a) Where the facts are undisputed, it becomes a question of law for the court to determine whether the accident is compensable. Maltz v. Jackoway-Katz Cap Co., 82 S.W.2d 909. (b) A doubt as to compensation or not, should be resolved in favor of the employee, and the Compensation Act should be liberally construed. Schultz v. Great A. & Pac. Tea Co., 56 S.W.2d 126; Betz v. Columbia Tel. Co., 24 S.W.2d 224; Pruitt v. Harker, 43 S.W.2d 796; Zimmerman v. Goodfellow Lbr. Co., 56 S.W.2d 608; Carrigan v. Western Radio Co., 44 S.W.2d 248; Dennis v. Wrought Iron Range Co., 89 S.W.2d 133; Gillmore v. Ring Const. Co., 61 S.W.2d 764; Bicanic v. Kroger, 83 S.W.2d 917; Sec. 3374, R. S. 1929; Schaefer v. St. Louis Independent Packing Co., 38 S.W.2d 303. (c) The following cases are in point with the present case, and disclose that the courts have held as a matter of law on similar facts that there is a causal connection between an abrasion or injury, subsequent infection, weakened resistance and ultimate death of the employee by reason of pneumonia or complications resulting from the original injury or infection. Zimmerman v. Goodfellow Lbr. Co., 56 S.W.2d 608; Anderson v. Fisher Body Co., 239 Mich. 506, 214 N.W. 938; Ensign v. So. Pac. Co., 223 P. 953, 23 N. C. C. A. 616; Farmer Motor Co. v. Smith, 69 S.W.2d 1, 35 N. C. C. A. 479; Bucyrus v. Reisinger, 133 S.E. 516, 21 N. A. C. C. 675; Coyl v. Mass. Acc. Board, Mass. W. C. C. 704; Lammon v. Simpkins, 3 Cal. L. A. C. 127; Schneider on Workmen's Compensation; Hill v. Guth, 35 S.W.2d 924; Wittelberger v. Roch, 181 Mich. 463, 148 N.W. 247; Homan v. Boardman River E. L. Co., 166 N.W. 860; Anderson v. Industrial Comm., 116 Wash. 421, 199 P. 747; Beckner v. K. C. Ry., 232 S.W. 745; Devins v. Chicago City Ry. Co., 195 Ill.App. 304; Black Mt. Corp. v. Block, 294 S.W. 820; Schoefer v. St. Louis Ind. Roofing Co., 38 S.W.2d 303; Tralle v. Chevrolet Motor Co., 92 S.W.2d 966. (d) Any doubt in the minds of the Workmen's Compensation Commissioners should be resolved in favor of the employee, and the Compensation Act should be liberally construed. Carrigan v. Western Radio Co., 44 S.W.2d 248; Dennis v. Wrought Iron Range Co., 89 S.W.2d 127; Gillmore v. Raing Const. Co., 61 S.W.2d 764; Bicanic v. Kroger, 83 S.W.2d 917; Sec. 3374, R. S. 1929; Betz v. Columbia Tel. Co., 24 S.W.2d 224; Schaeffer v. St. Louis Indep. Packing Co., 38 S.W.2d 303. (2) The court erred in limiting the appellant in her cross-examination of the medical experts. Gallagher v. Schutte Lbr. Co., 273 S.W. 213; DeMoss v. Evans & Howard Firebrick Co., 57 S.W.2d 720; Sec. 3349, R. S. 1929.

Luke & Cunliff and Thomas R. Pascal for respondents.

(1) On appeal in a compensation case the court must look only to the evidence most favorable to support the finding of the commission; all reasonable inferences must be drawn from the evidence in support of the finding of the commission, and if there is any substantial competent evidence to support the award it is binding and conclusive on the reviewing court; and in determining whether the evidence is sufficient to support the award the court must consider only the evidence tending to support the finding and disregard all opposing evidence. Sec. 3342, R. S. 1929; Leilich v. Chevrolet Motor Co., 40 S.W.2d 604; Doughton v. Marland Refining Co., 53 S.W.2d 241; State ex rel. Probst v. Haid, 62 S.W.2d 872; Gillick v. Fruin Colnon Const. Co., 65 S.W.2d 928; Decker v. Raymond Concrete Pile Co., 82 S.W.2d 267; Jenneman v. Consolidated Underwriters, 100 S.W.2d 458; Edwards v. Al Fresco Advertising Co., 100 S.W.2d 515; Sayles v. Kansas City Struct. Steel Co., 128 S.W.2d 1046; Hendrickson v. Riss & Co., 104 S.W.2d 1046. (2) Although the Missouri Workmen's Compensation Act is to be liberally construed, and doubt should be resolved in favor of the claimant, even a liberal construction cannot relieve the claimant of the burden of establishing that the disability or death was the result of the accident. Hatfield v. Southwestern Grocer Co., 104 S.W.2d 717; Moscicki v. Amer. Foundry Co., 103 S.W.2d 494; Gillick v. Fruin-Colnon, 65 S.W.2d 927; De Lille v. Holton-Seelye Co., 66 S.W.2d 835; Meldrum v. Southard Feed & Mill Co., 74 S.W.2d 75; Miller v. Ralston Purina Co., 109 S.W.2d 866; Freese v. St. Louis Pub. Serv. Co., 58 S.W.2d 578.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is an appeal by a claimant under the Workmen's Compensation Act (Chapter 28, R. S. 1929), from the judgment of the Circuit Court of the City of St. Louis affirming an award of the Commission in favor of the employer and insurer.

The claim was by the widow of Fred Meintz for $ 9788.30 for his death from pneumonia alleged to have resulted from infection and weakened resistance caused by a broken arm sustained while at work for his employer, the Morgan Trucking Company. The referee who heard the claim found against claimant and his award was affirmed upon hearing by the whole Commission. The finding of fact made was "that the death of the employee on April 11, 1937, was not the result of the accident sustained by said employee on November 6, 1935." The principal assignment of error briefed and argued on behalf of claimant is that the award was erroneous "for the reason that there is not sufficient competent evidence in the record to support the award." Claimant, of course, had the burden of proof of this essential fact issue of causal connection. [Miller v. Ralston Purina Co., 341 Mo. 811, 109 S.W.2d 866; Adams v. Continental Life Ins. Co., 340 Mo. 417, 101 S.W.2d 75; DeLille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236.] Claimant argues the matter as though the facts were undisputed and this is only a case involving a question of law citing decisions where that was the situation such as Kristanik v. Chevrolet Motor Co., 335 Mo. 60, 70 S.W.2d 890, and Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909. It is apparent from a review of the evidence (even claimant's evidence hereinafter reviewed) that there was conflicting testimony concerning essential fact issues.

Meintz broke his left arm in an automobile accident (not connected with his employment) in September, 1935. He went back to work for the Morgan Trucking Company on November 3, 1935. While changing a tire of one of his employer's trucks, on November 6, 1935, he slipped and fell refracturing his arm in the same place. Both breaks were compound fractures in the elbow joint. Dr. O. P. Hampton treated him both times. After the first break the doctor "wired the fragments back together," and after the second break "the fragments were rewired together." Thereafter "a low-grade infection or irritation, sinus formation" developed. The doctor said: "It was either caused by the irritation of the wire which was necessarily left buried there, or a low-grade infection in the fracture site in the bone or soft tissue infection about the bone. . . . The wound continued to drain at one or two points after the primary stage of healing for several months. One would would open and close, and the second would open and close. Finally in May of 1936, the wound seemed to be healed entirely. . . . Everything seemed to be fine; motion was increasing, though not complete. On July 5, 1936, it opened with a slight drainage and it opened again on the 28th of July. At that time his wound was probed to get any loose pieces of bone. These two drains were from a small sinus over the fracture site. I saw Meintz again in the fall. (October, 1936.) At that time the wound opened again and drained off two or three days and closed up."

Meintz went back to work in March, 1936, and was paid on a claim for compensation, for 20 per cent permanent loss of use of his left arm, the total amount of $ 1190.30. Thereafter, he lost a week from work in September 1936, because of a "gastro-intestinal upset . . . probably caused by dietary indiscretion or poor food" also treated by Dr. Hampton. Claimant's testimony was that in January, 1937, "he had a cold and was off from work a week," and that in February, 1937, "he was off another week" from sickness. It was not shown that any doctor attended him on these two occasions. The employer's testimony was that from January 9 to 16, 1937, Meintz was laid off because he was "under the influence of liquor" during working hours. There was also evidence of considerable use of alcoholic beverages by Meintz at other times. On February 1, 1937, Meintz went to Dr. G. C. Lyttle, who said he "found a localized inflammation," in his elbow. Dr. Lyttle further stated: "I put my surgical dressing and wet pack on him and he returned on February 4 and the inflammation had subsided some,...