Morris v. Dexter Mfg. Co.

• Decision Date: 03 July 1931
• Parties: BENJAMIN F. MORRIS, RESPONDENT, v. DEXTER MANUFACTURING COMPANY (EMPLOYER) AND CONSOLIDATED UNDERWRITERS (INSURER), APPELLANTS
• Court: Missouri Court of Appeals

40 S.W.2d 750

225 Mo.App. 449

BENJAMIN F. MORRIS, RESPONDENT, v. DEXTER MANUFACTURING COMPANY (EMPLOYER) AND CONSOLIDATED UNDERWRITERS (INSURER), APPELLANTS

Court of Appeals of Missouri, Springfield

July 3, 1931

Appeal from the Circuit Court of Stoddard County.--Hon. W. S. C. Walker, Judge.

REVERSED.

Judgment reversed.

Galivan & Finch for appellants.

(1) The finding of facts and award by the commission are conclusive and binding. Section 3342, Revised Statutes 1929; section 4 page 512; Workmen's Compensation Act, Session Acts 1927; State ex rel. Breman Clark Syrup Co. v. Workmen's Compensation Comm., 8 S.W.2d 879; Kinder v. Hannibal Car Wheel & Foundry Co. et al., 18 S.W.2d 91. The finding of facts and award of the commission have the force and effect of the verdict of a jury. Kinder v. Hannibal Car Wheel & Foundry Co. et al., 18 S.W.2d 91; Woods v. American Coal & Ice Co. et al., 25 S.W.2d 144. (2) The facts as found by the commission show that the injury of the complainant was not the result of an accident within the meaning of subsection B, section 7 of the Compensation Act which defines accident to be "an unexpected or unforeseen event without human fault, and producing at the time objective symptoms of an injury." Kinder v Hannibal Car Wheel & Foundry Co. et al., 18 S.W.2d 91. (3) The freezing of the employee's finger was not the result of an accident arising out of and in the course of his employment under the Compensation Act. Smith v. Levis-Zukoski Merc. Co. et al., 14 S.W.2d 470; Kinder v. Hannibal Car Wheel & Foundry Co. et al., 18 S.W.2d 91.

W. C. Keaton and Francis M. Walker for respondent.

(1) An injury "arises out of" the employment when there is a causal connection between the conditions under which the work is required to be done and the resulting injury. Wahlig v. Krenning Schlapp Gro. Co., 29 S.W.2d 128; Bise v. Tarlton, 35 S.W.2d 993; Jackson v. Euclid Pine Inv. Co., 22 S.W.2d 849; Kiser on Workmen's Compensation Acts, paragraph 64. (2) The injury arises "in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fufilling the duties of his employment or engaged in doing something incidental thereto." Wahlig v. Krenning-Schlapp Gro. Co., 29 S.W.2d 993; Kiser on Workmen's Compensation Acts, paragraph 72. (3) This injury, frost bite, is an accident within the meaning of Paragraph (b) section 7 of the Compensation Act. Brewer v. Ash Grove Lime & Cement Co., 25 S.W.2d 1086; Guillod v. Kansas City Power & Light Co., 18 S.W.2d 97; Jackson v. Euclid Pine Co., 22 S.W.2d 849. Frost bite is a compensable injury. 1 Schneider on Workmen's Compensation, 821-24.

COX, P. J. Bailey and Smith, JJ., concur.

OPINION

COX, P. J.

--This case arose under the Workmen's Compensation Act. The plaintiff was an employee of defendant, Dexter Manufacturing Company, and on December 8, 1927, was engaged with other men in loading spokes on a railroad car for his employer at Dexter, Missouri. During the course of his work on that day one finger was so badly frozen that amputation became necessary. The claim for compensation was filed and on a hearing before one commissioner, his claim was allowed. Later the Commission held against claimant and he then appealed to the circuit court where the finding of the Commission was reversed and judgment entered for plaintiff. Defendants appealed to this court.

The contention of appellants is to the effect that the evidence does not show that plaintiff was entitled to recover or is at least sufficient to sustain the finding of the Commission against him and, in either event, the trial court erred in setting aside the finding of the Commission and entering judgment for claimant.

There is no substantial conflict in the evidence as to the essential facts. These may be shown by excerpts from plaintiff's own testimony as follows:

"I was loading spokes northeast of the mill. The shed we were trucking from was covered but we were loading out in the open. I guess about 150 feet from the shed to the box car, maybe a little farther. The sheds have sides. There isn't any fire in the sheds. We trucked the spokes from the sheds to the box car. About fifty bundles to the load. It was just a push truck. I think there were four or five of us out there. Three men can push the truck. We were all working there that day. We would load the truck up and push it up to the car door and throw the spokes up from the truck to the box car. . . . The place where the box car stood was open and exposed. It was awful cold that day and the wind blew from the north. I should say it was cold enough to freeze. I don't know what the temperature was but it was about as cold a day as we had this winter. The wind was blowing. I had a coat on--just ordinarily dressed. Had on gloves, canvas, with leather palm. Yes, fingered gloves. . . . I went to work at seven o'clock that morning. About nine o'clock, I noticed that my hands were getting cold. . . . I worked five hours before the noon hour, until twelve o'clock. I was off one hour at noon. . . . I commenced work afternoon at one o'clock and worked from one until five. In the afternoon I noticed that my hand seemed numb and stiff and stinging. My fingers all hurt some but seemed like to me one was the worst. I worked until five o'clock and then went home, went in and commenced to wash. I got some hot water and as soon as I put my hand in it, that is the first time I knew my hand was frozen. Seemed like I stuck needles in it."

The finger was so badly frozen that it was later amputated. Claimant also testified: "There were four or five of us there doing the same kind of work that day. . . . The work in the shed is just about divided. Takes just about as long to unload a truck as it did to load it. I suppose that everybody in that community who was working out of doors that day would have been in just about the same position I was with respect to the cold weather. Anyone employed out of doors that day would experience the same cold as I did as far as I know. . . . That night was the first time I realized it was frozen. I merely thought my hand was numb and frosty from being in the cold. My hand had been that way in working out of door a great many times. As quick as I put it in warm water it began to turn black. No sir, I do not know just when it froze. It was something that would come on gradually by exposure out in the weather that day. . . . I would not say that the freezing of my finger happened suddenly. There was nothing that called my attention or caused me to be conscious of the fact that my finger was frozen until I got home and put it in hot water. When it became thawed out it pained so in the joints."

The Commission found against claimant and in the circuit court to which the matter was appealed, and in this court the finding of the Commission stands on the same footing as the verdict of a jury in an ordinary action at law. It was therefore the duty of the trial court, and it will be the duty of this court, to uphold the finding of the Commission unless the evidence is so...