Merriman v. Ben Gutman Truck Service, Inc.

Decision Date12 July 1965
Docket NumberNo. 50993,No. 1,50993,1
Citation392 S.W.2d 292
PartiesKenneth 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
CourtMissouri 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 freight usually when they take off, it is stacked; when you make a couple stops, well it shifts, if it is not tied, it shifts, that is what happened. This coil of rope lying on top of the containers I had to take out and I had to step over these other boxes in order to get to this rope to throw it over out of my way so I stepped one foot forward, my right foot forward, stepped up on another container and when I reached down to get the coil of rope, * * * three feet, three and a half feet in diameter, about twelve, fourteen inches thick, just a coil of rope wrapped in some kind of wrapper. * * * it weighed around one hundred pounds or one hundred ten. * * * It wasn't very high because the freight it was in more or less flat boxes, I would say about sixteen or eighteen inches off the floor lying close to the floor on some stuff I had to get. * * * the coil of rope was up here in front of some more freight laying where it had fallen off of something on the freight I was supposed to leave at Wilson. I had to move it off and that's why I had to leave one foot there and step over there to get ahold of it; you are not supposed to walk on those containers.' 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 'two and a half feet, I was stretched out, lying forward. * * * Bending forward, way forward. * * * I didn't want to stand, walk on the other small cartons, that is not a good policy, you might bust them and so I tried to keep off of them, keeping one foot down and one on a solid like carton, and to reach the coil of rope too. I tried to lift it on to its edge or either roll it out of the way, anywhere to get it off my carton I had to get out. * * * That is when something happened in my back. * * * I lifted it, I guess, approximately six inches, and then I had to drop it back.' 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: 'I had to lift the coil of rope, I had to clear it to get it on to its edge to roll it out of the way of the freight that I was going to unload at Wilson Truck Line, I had to lift it to turn it to get it out of the way, because, as I thought I brought out clear before, the freight had shuffled and fallen in the trailer and I reached over to lift it to clear it, to get it on its edge * * *. I had to hold on all the time or it would have fallen back to where it was to begin with.

'Q. You were lifting it and twisting it? A. That is right. * * * Q. And you were trying to lift one end of it up? A. I was trying to clear it so I could * * * Just like if this was one on here, you have to get it up over the edge to roll it out of there and had to hold on to it and lift it and try to turn it all at the same time, which I didn't do right then. * * *

'Q. * * * what, if any, degree of effort did you have to extend to attempt to accomplish that motion or function? A. I guess, all I would say all the strength I had.' 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 'We find from all of the evidence that the employee, Kenneth C. Merriman, did not sustain an accident on or about July 6, 1962, within the meaning of the Missouri Workmen's Compensation Law. The employee contends that he sustained an accident in the form of an abnormal or unusual strain within the meaning of Crow v. Missouri Implement Tractor Co., Mo., 307 S.W.2d 401, and other cases dealing with the subject. A careful review of those cases and the facts in the instant case, convinces us that he has failed to prove that he sustained an abnormal or unusual strain. We believe that the evidence fails to demonstrate the occurrence of any unforeseen or unexpected event (other than the injury itself) which happened suddenly and violently. So far as we are aware, the strain cases do not dispense with this statutory element.' Commissioner Cates dissented, saying that the award 'disregards the evidence that the employee was in the act of lifting and twisting a large, heavy, bulky and cumbersome coil of rope and that in doing so he had assumed a position with his body that placed him completely out of normal position, and when he was in this abnormal position he was exerting all the strength he had to move the rope. Such being the case, with his body in the abnormal, awkward position because he was attempting to avoid stepping on the small cartons, he was subjected...

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