Murphy v. St. Louis County Water Co.

• Decision Date: 08 November 1932
• Docket Number: No. 21776.,21776.
• Citation: 54 S.W.2d 69
• Parties: MURPHY et al. v. ST. LOUIS COUNTY WATER CO. et al.
• Court: Missouri Court of Appeals

54 S.W.2d 69

MURPHY et al. v. ST. LOUIS COUNTY WATER CO. et al.

No. 21776.

St. Louis Court of Appeals. Missouri.

November 8, 1932.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Irene Murphy, claimant, for the death of Thomas Murphy, her husband, opposed by the St. Louis County Water Company, employer, and the General Accident, Fire & Life Assurance Corporation, insurer. From a judgment of the circuit court reversing the final award of the Workmen's Compensation Commission in favor of the claimant, she appeals, and the employer and insurer file a motion to dismiss the appeal.

Motion overruled, and judgment reversed, and cause remanded, with directions.

Igoe, Carroll, Higgs & Keefe and Powell B. McHaney, all of St. Louis, for appellant.

Allen, Moser & Marsalek, of St. Louis, for respondents.

HAID, P. J.

This is an appeal from the judgment of the circuit court reversing the final award of the Workmen's Compensation Commission in favor of the claimant, upon the ground that there was not sufficient competent evidence to warrant the making of the award.

Before proceeding to the merits of the case, we find two objections made, which will have to be disposed of.

The respondents assert that the appeal is not properly before us because the same was not taken at the judgment term. The record discloses that the judgment of the circuit court was entered on December 29, 1930, during the December term of the circuit court, and that at the same term, and within four days thereafter, to wit, on January 2, 1931, a motion for new trial was filed, which motion was continued to the following term, and on February 16, 1931, at the February term of said court, the same was overruled, and on February 18, 1931, the court allowed an appeal to this court, and thereafter a bill of exceptions was filed. It is unnecessary to go into the matter further, because that question is finally settled adversely to respondents, by the case of State ex rel. Midwest Pipe & Supply Co. v. Haid et al. (Mo. Sup.) 52 S.W.(2d) 183.

The respondents also assert that the record does not disclose that notice of the time, place, and nature of the injury and name and address of the person injured was given to the employer within thirty days after the accident, in compliance with section 38 of the original act, now section 3336, Revised Statutes of Missouri 1929 (Mo. St. Ann. § 3336), and that the commission did not find that there was good cause for failure to give such notice or that the employer was not prejudiced by failure to receive the same. This question has also been determined adversely to the contention of the respondents by the case of State ex rel. Buttiger v. Haid et al. (Mo. Sup.) 51 S.W.(2d) 1008, and therefore no further notice need be taken of it.

The referee before whom the case was originally heard made a special finding that "the deceased, in the course of his employment, slipped on the steps and injured his spine, causing disintegration of the bony structure of the first lumbar vertebra and affecting other parts of the spine," and made an award in favor of claimant for $150 for burial expenses and $20 per week for 311.5 weeks for death benefits, the employer to receive credit of $409.40 previously paid as wages from April 14 to July 15, 1927. An appeal was taken to the entire commission, and additional testimony heard and the entire commission, on March 4, 1930, modified the previous award by providing that the employer should receive credit for $409.40 as wages paid from April 14 to July 15, 1928, instead of April 14 to July 15, 1927, and, as so modified, the previous award was affirmed by the full commission.

This leaves but one question to be determined, and that is whether the circuit court was correct in reversing the final award of the commission upon the ground that there was not sufficient competent evidence to warrant the making of the award. In considering this question, we are to be guided by the rules laid down by the courts of this state to the effect that we are not to consider the weight of the evidence or the credibility of the witnesses, since we are required to consider the case just as if it was a case where the facts had been determined by a jury [Travelers' Ins. Co. v. Davis (Mo. App.) 42 S.W.(2d) loc. cit. 946], and we must view the evidence in the light most favorable to support the award [Lamkins v. Copper-Clad M. R. Co. (Mo. App.) 42 S.W.(2d) loc. cit. 943; DeMoss v. Evens & Howard F. B. Co., 225 Mo. App. 473, 37 S.W. (2d) loc. cit. 962, and cases cited; State ex rel. Buttiger v. Haid et al. (Mo. Sup.) 51 S.W.(2d) loc. cit. 1009].

The evidence in the record most favorable to sustain the award of the commission is, in substance, as follows:

At the hearing before the commission, it was agreed that both the employer and employee were under the act at the time of the accident; that his average weekly wages were $31.15; that claimant is his widow and dependent.

The claimant, widow, testified that her husband had an accident at the water company's office around the holidays in December, 1927; that on the day of the accident, when deceased returned to his home, he said to claimant that he had had a terrible fall; that he could not eat his meal, and was sick all night; he told her he hurt his hip; that he went to work next day; that prior to the accident he was in perfect health, never complained of any pain in his spine, back or hips; that after the fall he treated himself, and she rubbed his hips the first night after the injury, and also rubbed his back, but saw no discoloration; that later the employee consulted a Dr. Drum, who treated him for rheumatism, and then he consulted a Dr. Miner, who treated him for neuritis; that the employee became incapacitated from work on the 14th day of April, 1928, when Dr. R. Emmett Kane was called in and took the employee to a hospital.

Mr. Charles E. Jutz, the treasurer of the water company, testified that some time in December, 1927, he heard a noise on the steps as if something had fallen, and in about two or three seconds the employee appeared from the place where witness had heard the noise; that the employee was coming up the stairs carrying two large ledgers weighing between twenty and twenty-five pounds apiece, and in size about 16×12 inches, containing about five...