Miller v. St. Joseph Transfer Co.

• Decision Date: 07 April 1930
• Parties: FRANK MILLER, RESPONDENT, v. ST. JOSEPH TRANSFER COMPANY, APPELLANT
• Court: Kansas Court of Appeals

32 S.W.2d 449

224 Mo.App. 1114

FRANK MILLER, RESPONDENT, v. ST. JOSEPH TRANSFER COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

April 7, 1930

Appeal from Circuit Court of Buchanan County.--Hon. L. A. Vories Judge.

JUDGMENT REVERSED.

Judgment reversed.

Stringfellow & Garvey for appellant.

Randolph & Randolph for respondent.

BARNETT C. Boyer, C., concurs. Bland, and Arnold, JJ., concur. Trimble, P. J., absent.

OPINION

BARNETT, C.

This is an appeal from a judgment of the circuit court of Buchanan County reversing an order of the Workmen's Compensation whereby they refused to award compensation to the respondent. When the plaintiff testified before the commission he was first examined by Commissioner Shaw. He claimed that he got an injury while working for the appellant in the latter part of January, 1928; that he did not remember the exact date nor the exact time of day, but that he received the accident "stacking furnaces;" that by pushing and stacking the furnaces he received a bruise on his hand; that after noticing the bruise he worked for about two weeks and then became sick. On direct examination he testified that he helped to unload and stack about four or five carloads of furnaces; that several men were engaged in the work, and he estimated that there were about two hundred furnaces in each carload. He was asked to describe how he stacked the furnaces. He answered as follows:

"A. We were putting crates down here (illustrating), then we come on up (illustrating), come on up (illustrating), we stacked them seven crates high, and then lined them up and I then put my hand under them and shoved them up."

"Q. On what part of the crate or furnaces did you put your hand? A. On the bottom and sometimes on the corner."

He testified that he did not notice anything wrong with his hand until the last two carloads of furnaces were unloaded "about the finishing up." He said that when he first noticed there was something wrong with his hand it seemed to be sore in the palm; that there was a little black spot in the palm of his hand and it looked like it might have been caused by a splinter. At another time he said that the place in his hand was a lump with a little black spot in it and that it was caused by "pushing on the furnaces and the constant bruising of it."

"Q. Was it on the first or second carload that you caught it on? A. I bruised my hand on the second carload.

"Q. What caused that? A. The constant pushing and stacking up of the furnaces."

After the plaintiff had worked about two weeks he became sick and Dr. C. H. Werner was called to attend him. Dr. Werner discovered that plaintiff was suffering from smallpox. At this time plaintiff complained that his hand was sore. Dr. Werner examined the hand and ascertained that plaintiff was suffering with Palmar abscess, which he testified was not caused by smallpox. The plaintiff's hand was lanced several times and he suffered disability on account thereof. Dr. Werner was asked the following questions and made the following answers:

"Q. Now, assuming, Doctor, that this man, along the latter part of December, and towards the first of January, engaged in the occupation of taking freighted furnaces out of cars and stacking them up in the warehouse of the Saint Joseph Transfer & Storage Company, about seven furnaces high, and that these furnaces were heavy, requiring from two to four men to lift them up and stacking them, and in the process of stacking, it was necessary to line them up and get them even, and sometimes he would take a hold of the crates and sometimes he would take the corner of the crates by the palm of the hand to push them up; assuming that he did that for a period of two or three days, unloading, perhaps from one hundred to two hundred crates in each carload, would the constant pushing, using the palm of the hand, would that possibly cause a bruise or infection there? A. Yes, sir, it could.

"Q. What do you suppose caused that infection? A. Either a bruised condition or perhaps a splinter."

The commission found that the plaintiff suffered from "an occupational disease and not an accident."

OPINION.

Section 4 of the Workmen's Compensation Act provides that upon appeal no additional evidence shall be heard and in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. Therefore, if there is any evidence to support the finding of the commission it may not be disturbed upon appeal. Section 3 of the act provides that the employer shall be liable irrespective of negligence to furnish compensation under the provisions of the act for personal injuries or death of the employee by accident arising out of and in the course of his employment. Section 7 provides as follows:

"The word 'accident' as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury. The term 'injury' and 'personal injuries' shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom. The said terms shall in no case be constructed to include occupational disease in any form," etc.

Many cases are cited in the briefs wherein the term "accident" has been defined by courts of other States. They are not controlling because our Statute defines the term. We are not even at liberty to follow the decisions of our own courts wherein the term "accident" was defined, but wherein the Workmen's Compensation Act was not involved. The commission made two findings of fact, namely; (1) that plaintiff suffered an occupational disease, (2) that he had not suffered an accident. If there is any evidence to support either of these findings the action of the commission must be sustained. The authorities are not in accord as to what constitutes an occupational disease. In L.R.A., 1916A, page 289, the editor says:

"The diseases suffered independently of any accident may be divided roughly into two classes, (1) the so-called industrial or occupational diseases which are naturally and reasonably to be anticipated as the result of a workman's following a certain occupation for a considerable period of time, as for example, lead poison; (2) diseases which are the result of some unusual condition of the employment, as for example, pneumonia following an enforced exposure."

The authorities that we have seen are unanimous in holding that those diseases which are the natural and reasonably to be anticipated results of a workman's following a certain occupation are occupational diseases. They are not unanimous on the question as to whether or...