Oswald v. Caradine Hat Co.

• Decision Date: 02 November 1937
• Docket Number: No. 24494.,24494.
• Citation: 109 S.W.2d 893
• Parties: OSWALD et al. v. CARADINE HAT CO. et al.
• Court: Missouri Court of Appeals

109 S.W.2d 893

OSWALD et al. v. CARADINE HAT CO. et al.

No. 24494.

St. Louis Court of Appeals. Missouri.

November 2, 1937.

Rehearing Denied November 19, 1937.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Proceeding for compensation under the Workmen's Compensation Law by Nellie L. Oswald and Charles L. Oswald, claimants, opposed by the Caradine Hat Company, employer, and the American Mutual Liability Insurance Company, insurer. From a judgment reversing an award of the Workmen's Compensation Commission denying compensation, employer and insurer appeal.

Reversed and remanded, with directions.

Luke & Cunliff, of St. Louis, for appellants.

Barker, Durham & Drury and J. M. Brown, all of St. Louis, for respondents.

SUTTON, Commissioner.

This is an action to recover compensation for the death of John P. Oswald, under the Workmen's Compensation Law (as amended, Mo.St.Ann. § 3299 et seq., p. 8229 et seq.). John P. Oswald was in the employ of the Caradine Hat Company as a watchman at the time of his death. Nellie L. Oswald is his widow, and Charles L. Oswald is his minor son. The Caradine Hat Company is insured against liability by the American Mutual Liability Insurance Company.

The Compensation Commission found that the employee's death was not the result of an accident arising out of his employment, but was the result of disease which was in no way connected with his employment. From the judgment of the circuit court reversing this award and remanding the cause to the commission, defendants have appealed to this court.

Defendants urge here that the circuit court ought to have affirmed the award of the commission, because the finding of the commission, being supported by substantial evidence, is conclusive. Plaintiffs urge that the finding is without any substantial evidence to support it.

The evidence shows that John P. Oswald, a man sixty-nine years old, was at the time of his death and for a long time prior thereto in the employ of the Caradine Hat Company as night watchman at its warehouse in the city of St. Louis. He was found dead, during his working hours, on the premises of his employer, and at a place where his duties required him to be. The building in which he watched consisted of a subbasement, a basement, and seven upper stories, nine stories in all. Once each hour as his duties required he started in the subbasement and punched a time register in the subbasement and in the basement and two time registers on each of the other floors. He used the stairs in going up and down. On the night of his death he rang in in the subbasement at 5:55 p. m., and at intervals of a few minutes between rings made the several posts reaching the seventh floor in eighteen minutes. He made his second, third, fourth, and fifth rounds in the usual way. His sixth and last round began at 10:51 and he reached the seventh floor in fourteen minutes. He did not ring in again. When his 12 o'clock call was missed a man from the central office was dispatched to ascertain the reason. Admission to the warehouse was gained with the aid of the fire department and the relief watchman, who was waiting outside, and with the aid of the firemen and police. The employee was found dead on the first floor near the washroom in a large clear passageway. There was no evidence of disturbances of any kind. The doors were locked and the windows fastened down. The key to the front door was in the lock on the inside. Investigation disclosed no evidence of a burglarious entry. The testimony of the lay witnesses who saw the body of the employee shows that there was a cut across the nose, bruises on the temples, a bruise on the back of the head, and a scratch on his hand, and that there was blood on the floor. One of the witnesses described it as a pool of blood having an irregular dimension of ten inches; another as a pool the size of a saucer; another as a spot half the size of a dollar bill; and another as a spot the size of the top of his thumb.

The report of the autopsy physician to the coroner, which was read in evidence without objection, and was used by both plaintiffs and defendants in the examination of their expert witnesses, shows "a laceration on forehead at base of nose, no other marks of violence; scalp and skull, negative; spine, negative." It further shows "left lung bound down by adhesions, crepitant throughout; right lung bound down by fibrous adhesions, hypostatic pneumonia lower lobe; heart muscles flabby; valves thickened; calcium infiltration; coronary orifices of heart very narrowed; arteriosclerosis; abdominal cavity, no injuries or hemorrhage; liver small, fibrous tissue increased; spleen soft, pulpy; kidneys small, granular fibrous tissue increased; cause of death, arteriosclerosis, cirrhosis of the liver, chronic myocarditis, chronic interstitial nephritis."

The testimony of lay witnesses introduced on the part of the plaintiffs tends to show that the employee prior to his death was in a good state of health and had never been under the treatment of a physician.

Dr. Edward N. Snyder testified, for plaintiffs, upon hypothetical interrogation, that in his opinion the employee's "injuries as described would, either directly or concurrently with his physical condition, have caused his death."

Dr. J. H. Walton testified, for plaintiffs, upon hypothetical interrogation, that in his opinion the employee's "injuries as described would concur with natural causes to cause his death."

Dr. D. L. Harris testified, for defendants, that in his opinion the heart condition as shown in the autopsy report was the cause of the employee's death. He further testified that the condition so shown is a very common cause of sudden death without any previous symptoms.

Defendants put in evidence a certified copy of the verdict of the coroner's jury, wherein it was found "upon a full investigation of the facts in the case and hearing...