Merriman v. Ben Gutman Truck Service, Inc.
Decision Date | 12 July 1965 |
Docket Number | No. 50993,No. 1,50993,1 |
Citation | 392 S.W.2d 292 |
Parties | Kenneth C. MERRIMAN, Respondent, v. GEN GUTMAN TRUCK SERVICE, INCORPORATED, and Liberty Mutual Insurance Company, and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Appellants |
Court | Missouri Supreme Court |
Quinn & Quinn, William B. Quinn, Julia M. Quinn, St. Louis, for respondent.
Edw. C. Friedewald, St. Louis, for other appellants.
Norman H. Anderson, Atty. Gen. of Missouri, Irving L. Cooper, Sp. Asst. Atty. Gen., Clayton, for appellant, Treasurer of State of Missouri, as Custodian of Second Injury Fund.
HIGGINS, Commissioner.
Appeal by employer, insurer, and custodian of Second Injury Fund from a judgment of the circuit court reversing a final award of the Industrial Commission, which award denied compensation. Appellant custodian is a state officer and we have jurisdiction. Art. V, Sec. 3, Mo.Const., V.A.M.S.; Mossman v. St. Joseph Lead Co., Mo.App., 254 S.W.2d 241; Grant v. Neal, Mo., 381 S.W.2d 838.
On July 6, 1962, respondent was 29 years old, 6 feet tall, weighed around 195 pounds, and had been a truck driver for about six years. He had gone to work for Ben Gutman Truck Service, Incorporated, around the middle of June, 1962, from previous employment of five years with Marine Petroleum Company. His job consisted of driving trucks and making local delivery of freight. His truck or trailer would be loaded overnight and each morning he would receive delivery tickets which showed where and what he was to deliver. Upon arrival at a delivery point he moved the freight from the forward part of the truck to the tail gate where it was taken off by employees at the place of delivery.
On July 6, 1962, respondent arrived for work at 8:30 a.m. and started making his deliveries. He made a couple of deliveries on Hall Street and then arrived at Wilson Truck Line around 11 a.m. The shipment to be delivered at Wilson was in the front of the trailer and consisted of several pieces. He had to move a round coil of rope to get to the boxes and containers. The rope had fallen over on the Wilson shipment because the load had shifted from its original placement. In the words of respondent, The rope was two and a half to three feet in front of where he was standing, and he described his movements as: '* * * I stood with one foot on the floor of the trailer and I put my right foot on a container which was in front of me and bent forward down, in order to get to the coil of rope.' His right foot was approximately sixteen to eighteen inches off the floor of the trailer, and his feet were apart He had lifted as much weight before but the difference on this occasion was 'I was lifting all with my shoulders and arms and my hops and back was completely behind me * * *.' As he went through the described motions and function of lifting the rope he experienced ' a sharp burning pain right in the small of my back.' At another point in his testimony respondent described his motions and function as:
' * * *
He sat down and remained lying on his side for two or three minutes. He later removed the rope by getting on his hands and knees. He completed his day's work with his back hurting. This was on Friday and his next work was Monday. He made no report because he thought it might cost him his job. He came back to work Monday but was not able to work. He was sent to a doctor from whom he received heat treatment. He went back to Marine Petroleum two weeks later. The only lifting he had to do there was of a five pound unloading hose.
William A. Stevens, M.D., examined respondent on September 27, 1962, October 8, 1962, December 13, 1962, and September 6, 1963. In addition to respondent's complaints, he found that respondent's right leg was one-quarter inch shorter than the left. He was of the opinion that respondent sustained a permanent and progressive soft tissue injury and strain of the lower back in the region of the lumbosacral joint as a result of the incident of July 6, 1962, and that he had right lower leg symptoms as a result of an old degenerative condition of his right hip joint. He testified also that respondent's type of back is 'vulnerable even to minor trauma, twist, lifting in a twisted position or unguarded movements that produce a severe back condition.'
Jack C. Tippett, M.D., examined respondent on behalf of appellants on August 28, 1963. Dr. Tippett gave respondent a disability rating of ten to fifteen per cent to the man as a whole by reason of the low back strain and pain condition of which respondent complained. Upon learning of respondent's hip condition the doctor was unable to separate it from the back condition but his rating was on the low back strain.
Respondent's claim was that he sustained accidental injury in the form of an abnormal and unusual lift, and that by reason of pre-existing congenital deformity of his right hip, he had combined disabilities greater than from the last injury alone and was therefore entitled to make claim against the Second Injury Fund.
Under these circumstances the referee made an award of compensation to respondent which was reversed by the Industrial Commission because Commissioner Cates dissented, saying that the award ...
To continue reading
Request your trial-
Davis v. Research Medical Center
...a process of natural reasoning from the facts alone, it is a conclusion of law and subject to our reversal.' Merriman v. Ben Gutman Truck Serv., Inc., 392 S.W.2d 292, 297 (Mo.1965) omitted) (quoting Williams v. Anderson Air Activities, 319 S.W.2d 61, 65 (Mo.App.1958)). Research cites and di......
-
Young v. Boone Elec. Coop.
...exceeding the usual and begets an unanticipated strain, results in a compensable injury.”) ]. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo.1965) [ (“An abnormal strain may, therefore, be classified as an accident even though not preceded or accompanied by a slip or a ......
-
Davies v. Carter Carburetor, Division ACF Industries, Inc.
...conclude that the claim came within what we conceive to be the doctrine of the Crow case.' In the case of Merriman v. Ben Gutman Truck Service, Inc., Mo.Sup., 392 S.W.2d 292, the Court sustained the Circuit Court in its judgment reversing the final award of the Commission. Recovery by the c......
-
Young v. Cooperative, WD76567
...exceeding the usual and begets an unanticipated strain, results in a compensable injury.")]. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo. 1965) [("An abnormal strain may, therefore, be classified as an accident even though not preceded or accompanied by a slip or a f......