Munton v. A. Driemeier Storage & Moving Co.

• Decision Date: 07 January 1930
• Citation: 22 S.W.2d 61,223 Mo.App. 1124
• Parties: MRS. ADA MUNTON, WIDOW OF CHARLES MUNTON, DECEASED, RESPONDENT, v. A. DRIEMEIER STORAGE & MOVING COMPANY (EMPLOYER), AND UTILITIES INDEMNITY EXCHANGE (INSURER), APPELLANTS. [*]
• Court: Missouri Court of Appeals

22 S.W.2d 61

223 Mo.App. 1124

MRS. ADA MUNTON, WIDOW OF CHARLES MUNTON, DECEASED, RESPONDENT, v. A. DRIEMEIER STORAGE & MOVING COMPANY (EMPLOYER), AND UTILITIES INDEMNITY EXCHANGE (INSURER), APPELLANTS. ^[*]

Court of Appeals of Missouri, St. Louis

January 7, 1930

Appeal from the Circuit Court of the City of St. Louis.--Hon. M. N Sale, Judge.

AFFIRMED.

Judgment affirmed.

John J Nangle for appellants.

(1) The burden of proof was on the claimant to prove by competent evidence that the deceased's death was the result of injuries received in an accident arising out of and in the course of his employment in order to entitle her to compensation. Missouri Workmen's Compensation Act, sec 3; Corpus Juris (W. C. T.), page 111; Frederick v. Ind. Commission (Ill.), 160 N.E. 845, 846; West Side Coal & Mining Co. v. Ind. Comm. (Ill.), 151 N.E. 593; Wisc. Steel Co. v. Ind. Comm., 123 N.E. 295; Sparks v. Consolidated Ind. Coal Co. (Ia.), 190 N.W. 593; Olson-Hall v. Ind. Comm., 205 P. 527. (2) Hearsay evidence and self-serving declarations, which are no part of the res gestae, are not competent, and such statements alone will not support an award of compensation. Jones on Evidence, 235, Civil Cases; Grant v. Kansas City Southern R. R., 157 S.W. 1016; Olson-Hall v. Ind. Comm., 205 P. 527; Englebretson v. Ind. Comm., 151 P. 421; Brashear v. Mo. P. R. R. Co., 6 S.W.2d 650; Jewell v. Excelsior Powder Co., 149 S.W. 1045; Dunlap v. R. Ice Co., 129 S.W. 262; Greenlaw v. K. C. Casualty Co., 182 S.W. 138. (3) Presumption and inferences may be drawn only from facts established, and presumption may not rest on presumption, or inference on inference. Cardinale v. Kemp, 274 S.W. 437; State ex rel. Mo. Pub. Utilities Co. v. Cox, 250 S.W. 551; Brainard v. Mo. Pac. R. R., 5 S.W.2d 15; Yarnell v. Railway, 113 Mo. 570. (4) Conjecture, surmise, speculation and guess are not permissible methods in determining the cause of an employee's death, and an award based on mere possibilities cannot stand, for the reason that a proximate and causal connection between the injury and the employment must be established by competent evidence. Smith v. Levis-Zukoski Mercantile, 14 S.W.2d 470; Corpus (W. C. T.), page 111; Sparks v. Consolidated Ind. Coal Co. (Ia.), 190 N.W. 593; Slack v. C. A. Percival Co. (Ia.), 199 N.W. 323; Clapps Parking Station v. Ind. Comm., 197 P. 369; Wisc. Steel Co. v. Ind. Comm. of Ill., 123 N.E. 295.

McNearney & Murphy, A. A. Alexander and Charles E. Morrow for respondent.

(1) An award may be based on hearsay evidence admitted without objection. Poluski v. Coal Co., 133 A. 819; Baer Express Co. v. Industrial Board, 282 Ill. 44; State ex rel. v. Lichtman, etc., Co., 131 Mo.App. 65. (2) The appellants, the defendants below cannot complain of hearsay evidence offered by the plaintiff, because they offered the same evidence of the same witness in their case in the form of the transcript of the evidence before the coroner. Finn v. Indemnity Co. (Mo. App.), 8 S.W.2d 1078; Robb v. Bartels (Mo. App.), 263 S.W. 1013. (3) The report of accident in this case was offered by the respondent and admitted without objection. Also a letter from the appellant Insurance Company to respondent, which states that the deceased had been injured in an accident. It is not necessary that appellant should have had personal knowledge of the facts admitted in those communications. Sparr v. Wellman, 11 Mo. 230; Brookfield v. Drury College, 139 Mo.App. 367. (4) The appellants having paid one weekly installment to the deceased as compensation for an injury, thereby admitted that he received an injury growing out of and in the course of his employment, and admitted liability therefor. Newberry v. Construction Co., 180 Mo.App. 672; Moore v. Mfg. Co., 113 Mo. 98; Wiseman v. Rome (Mass.), 146 Me. 28; Langdon v. Ahrends, 166 Ia. 336; Thayer v. Glynn, 93 Vt. 257; Taylor v. Fremont Fuel Co., 100 Ore. 495; Altman v. Railway Co., 75 N.H. 573. (5) The evidence showed that deceased's death was the result of an injury received by him, arising out of and in the course of his employment. The award is not based upon mere presumption or presumption upon presumption or inference upon inference, but a legitimate inference drawn from the facts proven. Santa v. Industrial Acc. Commission, 175 Cal. 235.

BECKER, J. Haid, P. J., and Nipper, J., concur.

OPINION

BECKER, J.

This is an appeal from an award of the Missouri Workmen's Compensation Commission made in favor of Ada Munton, widow of Charles Munton, deceased. The award of the commission was affirmed by the Circuit Court of the City of St. Louis, and the employer and the insurer, in due course, bring this appeal.

Charles Munton was an employee of the A. Driemeier Storage & Moving Company, and both the employer and employee had accepted the Workmen's Compensation Law.

Charles Munton died August 11, 1927, leaving surviving him as his sole dependent his widow, Ada Munton. An application for compensation was duly filed, claiming that the said Charles Munton had been injured on July 28, 1927, while moving a piano in the course of his employment at a designated residence on 21st street in the city of St. Louis, Missouri. When this application came up for hearing, the claim for compensation was amended to include an additional accident alleged to have happened on July 30, 1927.

Inasmuch as appellants here urge that there is not sufficient competent evidence in the record to warrant the making of the award, we now set out the evidence adduced before the commission. Mrs. Munton testified that on July 28, when her husband returned home at the close of the day, he told her that he had hurt his neck while moving a piano near 21st street; that her husband continued working on however through the day of July 30, 1927, on which day, on his return from work, he told her that he had again hurt his neck while carrying a dresser downstairs.

As to the accident of July 28, Mrs. Munton testified that her husband stated that an accident occurred while he and other employees of the defendant were carrying a piano downstairs; that it had slipped and came down on the back of his neck. She further stated that she examined his neck and it looked to her as though it was swollen; and that on July 30, upon her husband returning from work, he complained of having met with another injury; that she rubbed his neck and noticed that it was swollen and red.

On July 3, Dr. Blake was called in to treat her husband, and a Dr. Steinfels also made an examination of Munton. On August 1, a Dr. Bechtold was called in and he was of the opinion that meningitis could be caused by some fracture of the spine. Munton got no better and within the next few days a Dr. Mountjoy was called in, and upon her advice Munton was taken to the City Hospital, where he died a week later.

X-ray pictures were taken at the hospital. They show a lateral view of the skull and spine, and Dr. Ruben N. Smith, the chief resident physician at the City Hospital, who was called in in consultation, testified that he found no indication of disease, but he testified further, however, that the X-ray pictures show a fracture of one-half of the ring of the first cervical vertebra with a very slight upward displacement of the posterior fragment, and that, according to the hospital record, Munton died of simple meningitis, which in his opinion could have been caused by a fracture of the vertebra.

Dr. Grace Mountjoy, one of the physicians who treated Munton, examined the radiographs and testified that they showed a fracture "at the first vertebra, right at the top of the spine, on which vertebra the skull rests," and she gave it as her opinion that meningitis could be caused by a fractured vertebra. Dr. Julius Bechtold, a chiropractor who attended Munton, testified to like effect.

It is admitted that the insurer, at Mrs. Munton's request, sent an adjuster to the hospital to see her and that they mailed her a check August 10, for $ 20. The letter in which the check was enclosed reads as follows:

"Dear Mrs. Munton:

"We are enclosing herewith our check in the amount of $ 20, covering the compensation due your husband for the period of August 1st to and including August 7th, on account of the injury he sustained.

"The enclosed form is the agreement that I told you about when I saw you at the hospital. Under this agreement we will pay you $ 20 a week during the period that your husband is unable to work. Have some one on whom you depend read this over to you and advise you as to just what is there. This must be signed by you or by your husband in order to keep the promises I made you yesterday.

"I hope that you have received encouraging reports from the doctor at the hospital and that you can now feel that your husband is on the road to recovery.

"Rest assured that we are taking care of your interests and are making no attempt to keep any benefits that our company has to offer from you."

The "enclosed form" referred to in the letter nowhere appears in the record before us, and Mrs. Munton testified that Mr. Thrasher, who represented the insurer and signed the letter in which the check was enclosed, told her that he would pay her $ 20 per week until Mr. Munton got better; that no further payment was in fact made as Munton died the day after the check was sent.

The following letter was introduced in evidence on behalf of claimant:

"Lyton T. Block & Company,

"511 Locust Street,

"St Louis, Missouri.

"Gentlemen:

"Charles Munton, one of our employees, residing at 3933a N. 20th Street, failed to report for work at usual time of 7:00 A. M on Monday, August 1, 1927. About 7:30 A. M. his wife, Mrs. Munton, telephoned our office and informed us that Mr. Munton became ill with severe headaches on Saturday...