Monical v. Armour & Co.

• Decision Date: 12 November 1957
• Docket Number: No. 46261,No. 1,46261,1
• Citation: 307 S.W.2d 389
• Parties: Robert Lee MONICAL, Jimmy Dale Monical and Kathryn Luwanda Monical, Respondents, v. ARMOUR AND COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 389

307 S.W.2d 389

Robert Lee MONICAL, Jimmy Dale Monical and Kathryn Luwanda

Monical, Respondents, v. ARMOUR AND COMPANY, a Corporation, Appellant.

No. 46261.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1957.

Opinion Modified on Court's Own Motion Dec. 9, 1957.

Rehearing Denied Dec. 9, 1957.

Brown, Douglas & Brown, R. A. Brown, St. Joseph, for appellant.

Randolph & Randolph, by Lewis F. Randolph, St. Joseph, for respondents.

VAN OSDOL, Commissioner.

This is a Workmen's Compensation case. Defendant employer and self-insurer Armour and Company has appealed from a judgment of the Circuit Court affirming a $12,426 award of the Industrial Commission for medical aid and burial expense, and for death benefits to the three dependent minor children of deceased employee, Robert Monical.

In this case the underlying factual questions are whether employee sustained an 'accident'--a blow on the head on April 16, 1956--with ensuing hemorrhage and deterioration of the cells of the brain; and, if so, whether such ensuing hemorrhage and deterioration caused employee to lose his sense of equilibrium and suffer a fatal fall on April 17th.

As indicated, the alleged accident occurred April 16, 1956, while employee was working, 'dropping hogs,' at employer's plant. It was the theory of claimants-respondents that employee was struck on the head by the lever of a mechanism consisting of a hook with weighted lever used in releasing the carcasses of hogs as they were passed along an overhead elevated carrier track or rail to a point where they were 'dropped' to a scalding tank. Employee was stationed along and under the elevated track or rail on a catwalk with handrailings. As the hogs were moved down the incline of the overhead carrier rail, it was employee's duty to use the lever of the releasing device in such a way that the hogs were released and dropped to the scalding tank where one Boyle Parham had the duty of managing the scalding process. The lever--two or three inches wide, a quarter of an inch thick, five feet long, with a fifty or sixty pound weight on the end--was overhead, as stated, and there had been 'trouble down there about that lever tripping without being pulled, and hitting the men on the head.'

The witness Parham testified that in the late morning of April 16th, he noticed that the hogs 'quit coming down'; he glanced up toward the place or station on the catwalk where employee Monical worked; Monical was leaning against the handrailing of the catwalk and 'had his cap off a-rubbing his head.' Parham asked employee 'what was wrong.' Employee Monical said 'that damn lever hit me on the head.' It might have been 'a minute or two minutes or three minutes, I can't say' from the time the hogs 'quit coming down' until the time Parham glanced up and asked Monical what was wrong.

Commission made findings of fact and conclusions of law, including the following,

'We find from all the evidence that the employee, Robert Monical, sustained an accident on April 16, 1956, arising out of and in the course of his employment with Armour and Company, which caused an injury to his brain. We further hold that the testimony of Boyle Parham, 'He said that damn lever hit me on the head--', was admissible in evidence as being a spontaneous statement by Robert Monical within a few minutes after sustaining the accident found herein. Soderstorm v. Missouri Pacific Railroad Co., Mo.App., 141 S.W.2d 73. We further find from all the evidence that injury to his brain caused by the accident of April 16, 1956, caused him to fall over backwards, on April 17, 1956, which resulted in injuries producing his death on April 18, 1956.'

Our examination of the record convinces us that Commission correctly found the immediate cause of employee's death was a fracture of the occipital, basal portion of the skull, with hemorrhage of the basal area of the brain sustained when he fell over backwards on April 17th. And the medical testimony is substantial and convincing in tending to show that employee suffered a hemorrhage of the left frontal lobe of the brain (the right frontal lobe was midly affected) on an earlier date, and that the deterioration of the cells of the brain due to the hemorrhage of earlier origin caused the fatal fall April 17th. However, physicians, witnesses for employer, who testified of the degeneration of the brain cells as disclosed by an autopsy, were of the opinion the earlier hemorrhage had its origin prior to April 16th; and, consequently, it is employer's theory that employee's death was not by 'accident,' as the term is used by the Workmen's Compensation Law (Section 287.010 et seq., RSMo 1949, V.A.M.S.), occurring April 16th. It is argued that employee's death was due to some condition of the brain existing or trauma experienced prior to that date. Employer contends the finding and award of Commission are not supported by competent evidence, and are contrary to the substantial evidence considering the record as a whole. Employer also contends Commission and the Circuit Court erred in admitting into evidence and considering, as part of the res gestae, Parham's testimony that employee had said he had been struck by the lever.

'In reviewing this workmen's compensation case we have the duty of determining whether the Commission's award is supported by competent and substantial evidence upon the whole record. Const. Art. 5, Sec. 22, V.A.M.S. This does not mean that we may substitute our own judgment on the evidence for that of the Commission. But we are authorized to decide whether the Commission could have reasonably made its findings and reached its result, upon a consideration of all of the evidence before it, and to set aside its decision if clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647.' Foster v. Aines Farm Dairy Co., Mo.Sup., 263 S.W.2d 421, 423; Conley v. Meyers, Mo.Sup., 304 S.W.2d 9.

Attending the contention that employee's statement was erroneously admitted into evidence---- There was evidence that the lever of the hook-and-lever device was so placed overhead as to permit the lever to come into contact with the head of an employee working on the catwalk. In fact, Parham testified that he and others, when engaged in dropping hogs, had been hit on the head by the lever a number of times. There was evidence that employee for some reason had stopped working and was leaning against the handrailing of the catwalk, had removed his cap and was rubbing his head indicating that he was experiencing pain. It would seem that the statement of employee that the lever hit him on the head was made at a time when he apparently was experiencing pain or shock and excitement due to the contact of his head with some object, and was so intimately connected with or so patently grew out of the facts or circumstances making up the event or transaction as to be a part or the spontaneous product of them. Now it is true the statement was made a minute or two or three after the circumstance of the cessation of employee's work, and was in response to Parham's question. But a statement may be the spontaneous product of an event itself, although made in response to a question. Cummings v. Illinois Cent. R. Co., 364 Mo. 868, 269 S.W.2d 111, 47 A.L.R.2d 513; Meyers v. Smith, Mo.Sup., 300 S.W.2d 474. See also and compare Roach v. Kansas City Public Service Co., Mo.Sup., 141 S.W.2d 800. And in considering the admissibility of this class of statements, it is fallacious to suppose that a statement must have been strictly contemporaneous with the exciting cause, although the utterance must have been while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. Vol. VI, Wigmore on Evidence, 3d. Ed., Sec. 1750, p. 142. The essential test of the admissibility of this class of statements is spontaneity. The lapse of time involved is material mainly as evidence of lack of spontaneity. 'Certainly the true test is neither the time nor the place of a statement but whether it is a spontaneous statement produced by the event itself.' Sconce v. Jones, 343 Mo. 362, 121 S.W.2d 777, 782; Cummings v. Illinois Cent. R. Co., supra. We hold there was no error in admitting into evidence and considering employee's statement. Cummings v. Illinois Cent. R. Co., supra; Roach v. Kansas City Public Service Co., supra; Sconce v. Jones, supra; Bennette v. Hader, 337 Mo. 977, 87 S.W.2d 413, 101 A.L.R. 1190; Smith v. Southern Illinois & Missouri Bridge Co., 326 Mo. 109, 30 S.W.2d 1077; Pryor v. Payne, 304 Mo. 560, 263 S.W. 982. And we further hold there was competent and substantial evidence tending to show employee on April 16, 1956, suffered a blow on the head by the lever of the releasing device while engaged in work for employer.

Considering the record as a whole, were there reasonable bases for the conclusion that, due to the blow on the head April 16th employee suffered a hemorrhage and deterioration of the cells of the frontal lobes of the brain which caused him to lose equilibrium and...