Nantron v. General Tile & Marble Co.

• Decision Date: 08 November 1938
• Docket Number: 24,896
• Citation: 121 S.W.2d 246
• Parties: JOHN NANTRON, (Plaintiff), Appellant, v. GENERAL TILE AND MARBLE CO., a Corporation, Employer, and CONSOLIDATED UNDERWRITERS, Insurer, (Defendants), Respondents
• Court: Missouri Court of Appeals

121 S.W.2d 246

JOHN NANTRON, (Plaintiff), Appellant, v. GENERAL TILE AND MARBLE CO., a Corporation, Employer, and CONSOLIDATED UNDERWRITERS, Insurer, (Defendants), Respondents

No. 24,896

Court of Appeals of Missouri, Eastern District

November 8, 1938

Appeal from the Circuit Court of the County of St. Louis. Hon. John J. Wolfe, Judge.

Jefferson D. Hostetter, PRESIDING JUDGE. Becker and McCullen, JJ concur.

OPINION

Jefferson D. Hostetter

This is an appeal from the circuit court of St. Louis County Missouri, affirming an award of the Missouri Workmen's Compensation Commission.

John Nantron was in the employ of the Central Tile and Marble Company, a corporation, and claimed that by reason of an accident, which occurred on the 24th day of July, 1936, he sustained injury which entitled him to compensation and filed his claim with the Workmen's Compensation Commission, on or about November 9, 1936, which was in conventional form and the Employer and Consolidated Underwriters, the insurer, by their answer denied all the allegations contained in the claim.

Upon a hearing before the referee he denied compensation and a later hearing before the commission resulted in a finding reading as follows:

"We find from the evidence that the condition complained of is not the result of the accident of July 24, 1936.

"Therefore, compensation must be and is hereby denied--Affirming on review award dated February 15, 1937. * * *"

An appeal by claimant from the Commission to the circuit court resulted in an affirmance of the finding and award of the Commission, and claimant duly perfected his appeal to this Court.

The sole question involved in this appeal is whether there was sufficient substantial and competent evidence to support the award of the Commission.

Claimant and Dr. L. M. Webb were the only witnesses who testified, the latter being called by the Employer and Insurer.

On direct examination claimant testified as follows:

After stating his name, his age as 35, that he was married, his place of residence, and that he was in the employ of the General Tile and Marble Company on July 24, 1936, he proceeded as follows:

"Q. Were you injured in an accident on that date? A. Yes. Q. What kind of work were you doing? A. Terrazzo flooring. Q. This terrazzo floor work you were doing, was it done by hand or machine? A. Machine. Q. Just tell what happened, what accident occurred? A. I finished the job on the first floor with the machine and going down to the basement, going around the building, going down in the basement, you put a board to go around and go down to the basement and the board was a little wet and trying to keep the machine from falling down, my foot slipped to keep the machine from falling down and I got hurt.

"Referee Lahey: Your foot slipped and you are indicating your right foot?

"A. Yes, to keep the machine from falling down and I was hurt; I feel it right away.

"Mr. McLemore (resuming): What did you feel right away? A. Feel hurt, you know inside. Q. What hurts you? A. I suffered from piles. Q. How soon after your--at the time your foot slipped, was there any kind of a strain you felt? A. I feel bad, I hurt. Q. How soon after your foot slipped was it you began to feel the suffering from the piles? A. About five minutes or ten minutes after. Q. What did you do then? A. I bring the machine inside and clean the room there was no one else there and about 2:30 or 3:00 I go home, something like that. Q. What time was it when this happened? A. About nine or nine-thirty, something like that. Q. Did you work on until 2:30 or 3:00? A. Yes, some-thing like that. Q. Was that the regular time you went home every day? A. No, not every day; I just finished cleaning the room. Q. You had finished the work for the day? A. Yes, sir. Q. Then what did you do with reference to this injury? A. I went home, I went to the office and I said, "Work to-morrow?" and he said, "No, nothing to do", so I went home and stayed home. Q. Were you treated by any physician at all on this case? A. I don't know what you mean. Q. Doctor, did any doctor treat you for this condition? A. Before? No. Q. After you got hurt? A. After that, yes, sir. Q. When did the doctor treat you? A. Monday. Q. What day of the week was this when the accident happened? A. On Friday. Q. How did the doctor come to treat you--did you report to your employer that you were hurt? A. Yes, I was in the office, Monday morning from the office he drove me down to the doctor. Q. Did you say you went back Monday morning and reported your injury to the employer? A. Monday I tried to go to work and I couldn't stay on, I have to lay down on the floor until the other fellow got through with the job and he had to take me home. Q. Who took you to the doctor? A. I don't know his name, Ernest Butellino or something like that. Q. Who told him to take you to the doctor? A. The boss. Q. Who was the boss? A. Ramagareo. Q. What doctor were you taken to? A. Dr. Webb, in North St. Louis. Q. Where is that located? A. I don't know.

"Dr. Webb: 4501a Manchester.

"Mr. McLemore (resuming): What did Dr. Webb do for you? A. Dr. Kane was there. Q. What did Dr. Kane do when you were taken there? A. Cured me. Q. When you went to Dr. Webb that first day, he treated you? A. Yes. Q. When did you see Dr. Webb again?

"Mr. Simpson: That question is rather confusing, Dr. Kane was the first doctor that saw him.

"Mr. McLemore (resuming): Dr. Kane treated you? A. Yes. Q. When did you see a doctor again? Every day, the next day. Q. How many times did you see Dr. Kane? A. About three or four times, something like that. Q. When did you see Dr. Webb? A. The week after. Q. How many times did you see Dr. Webb? A. I don't know how many times. Q. Was it ten times? A. More than that. Q. During this time did Dr. Webb call at your home or did you go to his office? A. I went to his office; my brother-in-law took me down there in the car. Q. Were you suffering at that time? A. Suffering, yes, sir; I lost four or five pounds in three weeks. Q. How long did you remain away from work, Mr. Nantron? A. Three weeks. Q. Then did you go back to work for your same employer? A. Same employer. Q. Are you working for that employer now? A. Yes, sir. Q. How do you--how does your injury seem to be, are you cured yet or still suffering? A. I still suffer. Q. How is that suffering--is it just the same all the time or sometimes worse? A. Sometimes it is better and sometimes worse. Q. Are you doing the same kind of work you did before? A. I do the same kind of work but they do not let me do the real work any more; I don't move the machine. Q. You do the same kind of flooring but not altogether the same kind of work? A. No. Q. They don't allow you to move the machine about the room any more, you say? A. That is right." Claimant testified on cross examination as follows:

"Q. This work that you do is grading down of the terraz-zo floor with a machine? A. Yes, with a machine. "Mr. McLemore: Are you still being treated by a doctor? A. Yes. Q. Who is treating you now? A. Dr. Coe. Q. On Pine Street? A. Pine and Broadway. Q. You were never operated on for this injury? A. No.

"Mr. Simpson (resuming): Now, you say this happened on a Friday? A. Yes, sir. Q. About nine in the morning? A. Nine or nine-thirty. Q. Your right foot slipped as you were moving the machine from one floor to the basement? A. Yes, sir. Q. Where was the machine at the time your foot slipped, was it out on the driveway? A. Right on the board. Q. You had taken it from the first floor to the driveway and were going to take it in the basement? A. Yes. Q. And it has wheels on it? A. Yes, three wheels. Q. You were rolling it from the first floor to the basement on boards? A. Yes, it was on the board to the sidewalk--from the sidewalk to go to the stairway or driveway and go to the basement. Q. Was that the place you were rolling it at the time your foot slipped, was that practically level? A. No, they grade like this (indicating). Q. Was it very much downgrade? A. No. Q. Now, you say then about five or ten minutes after your foot slipped you felt this pile begin to bother you? A. Yes. Q. Did you know you had piles? A. No. Q. You went on and worked until you finished the job? A. I just cleaned it away, nothing more to do; just cleaned the room. Q. You finished about two or three in the afternoon? A. Yes. Q. Then you went to the office at 4332 W. Clayton and turned in your time? A. Yes, sir. Q. That was Friday afternoon? A. Yes, sir. Q. You didn't tell anybody down at the office that afternoon you hurt yourself? A. There was nobody there but the girl; I didn't tell the girl; I said, "Work tomorrow?", and she said, "There is nothing to do tomorrow". Q. The boss came there after you got to the office on Friday afternoon? A. Yes. Q. You asked him about working the next day and he told you there was not any work? A. Yes. Q. Then you went on home? A. Yes. Q. You didn't tell the boss that afternoon about being hurt? A. It was nothing--I didn't report it, it was nothing. Q. On aturday morning, isn't it a fact when you went to the toilet for your bowels you noticed these piles came out? A. Yes. Q. That is right? A. Before I feel something there, when my bowels moved I had to go to bed. Q. On Saturday morning after your bowels moved, that pile came out and you felt very bad? A. Yes. Q. Now, on Monday morning-- A. (Interrupting): All day Sunday it was bad, I was in bed. Q. On Monday morning did you go to work? A. Yes, I tried to go to work; I was on the job. Q. On Monday morning you had to quit? A. Yes, sir. Q. Then they sent you to Dr. Webb's office? A. Yes. Q. Where Dr. Kane saw you? A. Yes. Q. Did you tell them that morning, on Monday morning did you tell them about this accident where your foot had slipped? A. Yes, sir. Q.

...