Moran v. Edward Peterson Const. Co., 22433.

• Decision Date: 07 February 1933
• Docket Number: No. 22433.,22433.
• Citation: 56 S.W.2d 809
• Parties: Mary MORAN, Ann, Hayden, and Joyce Moran (Dependents), v. EDWARD PETERSON CONST. CO. et al.
• Court: Missouri Court of Appeals

56 S.W.2d 809

Mary MORAN, Ann, Hayden, and Joyce Moran (Dependents), v. EDWARD PETERSON CONST. CO. et al.

No. 22433.

St. Louis Court of Appeals. Missouri.

February 7, 1933.

Appeal from St. Louis Circuit Court; Julius R. Nolte, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Mary Moran, claimant (Mary Moran and others, dependents), for the death of James E. Moran, her husband, opposed by the Edward Peterson Construction Company, employer, and the Southern Surety Company of New York, insurer. From a judgment of the Circuit Court affirming an award of the Workmen's Compensation Commission in favor of the employer and insurer, Mary Moran and others appeal.

Affirmed.

Harold C. Ackert and Louis A. McKeown, both of St. Louis, for appellants.

Jones, Hocker, Sullivan & Gladney and Willard A. McCaleb, all of St. Louis, for respondents.

BENNICK, C.

This is a proceeding under the Workmen's Compensation Act (sections 3299-3376, R. S. 1929 [Mo. St. Ann. §§ 3299-3376]). Mary Moran, the dependent widow of James E. Moran, is the actual claimant, though the caption also contains the names of the dependent children to whom the compensation, if any, should go upon the death or remarriage of the mother. The Edward Peterson Construction Company is the employer, and the Southern Surety Company of New York the insurer.

Claim was filed in due time for compensation for the death of the employee on June 30, 1931, while in the general service of the employer. Suffice it to say that death was alleged to have resulted from heat prostration suffered by accident arising out of and in the course of the employment, and that the answer served to put the question of the employer's liability directly at issue.

The claim was heard before one of the referees of the commission, who, on October 21, 1931, entered an award in favor of the widow, and against the employer and insurer. Thereafter the latter filed their application for a review before the full commission, and upon such review, on December 1, 1931, the full commission entered its final award, reversing and setting aside the award of the referee, and finding in favor of the employer and insurer.

Thereafter an appeal was perfected to the circuit court of St. Louis county, wherein the award of the commission was affirmed. From the judgment so rendered, the appeal of the claimants to this court has followed in the usual course.

Prior to the time of Moran's employment by it, the employer had contracted to construct a new right of way for the Wabash Railway Company along a certain portion of its lines in St. Louis county, closely adjacent to the Missouri river, and in the vicinity of the city of St. Charles in St. Charles county. The purpose of the construction of the new right of way was to eliminate a sharp curve and a heavy grade in the course of the old right of way, and with this in view a cut 1,000 feet long and 100 feet wide was being made through the hills in the line that the new road was to follow. From the base of the hills at either end of the cut its depth increased to a maximum of 20 feet at the center.

The main camp of the employer was located on top of a hill about a mile from the cut in which Moran was employed. The testimony fixed its location as being generally 3 miles north of the St. Charles rock road, and two miles east of the city of St. Charles.

Moran was employed on June 28, 1931, and worked all of that day, and all of the 29th, and until noon of the 30th, which was the day on which his death occurred. He and two fellow employees, Boucherie and Allen, were the only members of the crew assigned to work in the cut at the time in question, and their work consisted of smoothing or sloping down the sides of the cut with grub hoes.

The weather at the time was extremely warm as shown by the official readings of the temperature both in St. Louis and also at Lambert Field which is only a mile or so from the cut in which Moran's duties were performed. On the 28th, the daytime temperature in St. Louis ranged from 82 degrees to 101 degrees, and at Lambert Field, from 77 degrees to 101 degrees; on the 29th, in St. Louis, from 83 degrees to 101 degrees, and at Lambert Field, from 75 degrees to 101 degrees; and on the 30th, in St. Louis, from 82 degrees to 102 degrees, and at Lambert Field, from 73 degrees to 103 degrees.

The records showed further that there was no rain at Lambert Field on the 30th, so that in all probability there was one hundred per cent. sunshine. The records of the velocity of the wind at Lambert Field on the 30th showed an average of 4.2 miles an hour for the day, with a maximum velocity of 19 miles an hour at 7:15 p. m., which was several hours after Moran's death. The readings for St. Louis on the 30th were approximately the same.

On the morning of the 30th, the three men drove from the main camp to the cut in Boucherie's automobile, and then began their work, Boucherie taking his place in the open, at the extreme west end of the cut, and Allen and Moran moving back some thirty feet into the cut proper at a point where the north bank, which they were engaged in smoothing down, was about six or seven feet in height. Moran stood on the bottom of the cut, with Allen on the slope above him where the footing was more uncertain and the work correspondingly more difficult.

The men were supplied with a five-gallon keg of water containing a block of ice, and the testimony was that by 8:30 o'clock the ice had melted, and the water had become warm. The nearest point at which fresh water could be obtained was back at the main camp.

Such shade as there was was furnished by a sumac bush, located one hundred feet up over the top of the bank at the point where Moran and Allen were working, and by a tree standing approximately one hundred yards away, which could be reached by going down one hill and then ascending another.

The testimony of Boucherie and Allen was that on the two previous days Moran had done his full work, but that on the morning of the 30th he began to complain of the heat and to tire easily, and that he made frequent visits to...