Reeves v. Fraser-Brace Engineering Co.
| Decision Date | 08 June 1943 |
| Parties | Evelyn Reeves, Respondent, v. Fraser-Brace Engineering Company and Liberty Mutual Insurance Company, Appellants |
| Court | Missouri Court of Appeals |
Appellants' Motion for Rehearing Denied June 25, 1943.
Appeal from the Circuit Court of St. Charles County; Hon. Edgar B Woolfolk, Judge.
Affirmed.
John F. Evans for appellants.
(1) There was not sufficient competent evidence to support the finding of death by accident. (a) The burden was upon the claimant to prove that the employee punctured his left heel with a nail as the result of an accident arising out of and in the course of his employment on July 21, 1941. Munton v. Driemeier, 223 Mo.App. 1124, 22 S.W.2d 61. (b) A finding of fact cannot be predicated upon speculative and conjectural inferences drawn from circumstantial evidence. De Moss v. Evens & Howard Fire Brick Co., 225 Mo.App. 473, 37 S.W.2d 961; (same) 57 S.W.2d 720; Wetter v. Mechanic's Iron Works (Mo. App.), 49 S.W.2d 236 239; Allison v. Eyermann Const. Co. (Mo. App.), 43 S.W.2d 1063; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31, 33; Weiler v. Peerless White Lime Co. (Mo. App.), 64 S.W.2d 125; Muesenfechter v. St. L. Car Co. (Mo. App.), 139 S.W.2d 1102, 1106. (c) Hearsay statements contained in hospital records and coroner's proceedings do not constitute competent evidence. Munton v. Driemeier, 223 Mo.App. 1124, 22 S.W.2d 61; Lamkins v. Copper Clad Range Corp. (Mo. App.), 42 S.W.2d 941; Thrower v. Life & Casualty Ins. Co. (Mo. App.), 141 S.W.2d 192, 197; Childers v. Natl. Life & A. Ins. Co. (Mo. App.), 37 S.W.2d 490, 493. (2) Upon a finding that the employee did not report the alleged accident as soon as practicable, the conclusion of the Commission that employer and insurer were not prejudiced by this failure is not supported by sufficient competent evidence. Under the evidence and circumstances of employee's death, prejudice existed as a matter of law because of employee's failure to report the alleged accident. Sec. 3726, R. S. Mo. 1939; Conn v. Chestnut Realty Co., 235 Mo.App. 309, 133 S.W.2d 1056, 1059; Annotation, 78 A. L. R. 1232; Annotation, 107 A. L. R. 815; Dorb v. Stearns & Co., 167 N.Y.S. 415; Feenberg Pipe Co. v. Matthews, 173 Okla. 473, 49 P.2d 76. The burden was upon claimant to prove there was good cause for the failure to give notice. State ex rel. Buttiger v. Haid, 330 Mo. 1030, 51 S.W.2d 1010. (3) The allowances for medical and hospital expense during the last illness are unsupported by competent evidence and are contrary to law. It affirmatively appears that employer and insurer had no notice of either the alleged accident or subsequent illness, had no opportunity to furnish medical aid, and the employee selected his own physicians and medical service. Sec. 3701, R. S. Mo. 1939; Moorman v. Central Theatres Corp. (Mo. App.), 98 S.W.2d 987, 992, and cases cited; Richter v. Multiplex Display Co. (Mo. App.), 127 S.W.2d 783.
Tyree C. Derrick for respondent.
(1) There is sufficient competent evidence in the record to justify the award. (a) The evidence not only consists of circumstances, but there is direct and positive evidence that the deceased sustained the injury as alleged. Lanahan v. Hydraulic-Press Brick Co. (Mo. App.), 55 S.W.2d 327; Pilkington v. Pilkington, 230 Mo.App. 569, 93 S.W.2d 1068; Everard v. Women's Home Companion Reading Club, 234 Mo.App. 760, 122 S.W.2d 51; Buckner v. Quick Seal, Inc., 233 Mo.App. 273, 118 S.W.2d 100; R. S. Mo. 1939, Chap. 29, sec. 3691; Zimmerman v. Goodfellow Lumber Co. (Mo. App.), 56 S.W.2d 608; Tralle v. Chevrolet Motor Co., 230 Mo.App. 535, 92 S.W.2d 966; Hill v. Edward F. Guth Co. (Mo. App.), 35 S.W.2d 924; Auchley v. Zerr (Mo. App.), 155 S.W.2d 23; Hunt v. Jeffries (Mo. App.), 156 S.W.2d 23; Toombs v. Deitz Hill Development Co. (Mo. App.), 159 S.W.2d 317; Wilhelm v. Buchanan Co. (Mo. App.), 131 S.W.2d 894; Wright v. Penrod Jurden & Clark Co., 229 Mo.App. 1147, 88 S.W. 411; Gilden v. Dorsa Dresses, Inc. (Mo. App.), 160 S.W.2d 484; Schroeder v. Western Union Tel. Co. (Mo. App.), 129 S.W.2d 917; Williams v. Planters Realty Co. (Mo. App.), 160 S.W.2d 480; McCoy v. Simpson, 346 Mo. 72, 139 S.W.2d 950; O'Neil v. Fred Evans Motor Sales Co. (Mo. App.), 160 S.W.2d 775; Munton v. Driemeier, 223 Mo.App. 1124, 22 S.W.2d 61. (b) It was error for the referee to refuse to consider all of the evidence contained in the coroner's report. R. S. Mo. 1939, sec. 3738; State ex rel. Hanlon v. Maplewood, 231 Mo.App. 739, 99 S.W.2d 138; Johnson v. Am. Life & Accident Ins. Co. (Mo. App.), 145 S.W.2d 444; State ex rel. Ellis v. Brown, 326 Mo. 627, 33 S.W.2d 104; Muesenfechter v. St. Louis Car Co. (Mo. App.), 139 S.W.2d 1102. (2) Employer and insurer had timely notice of the accident and injury and were not prejudiced. R. S. Mo. 1939, sec. 3726; Haill v. Champion Shoe Machinery Co., 230 Mo.App. 631, 71 S.W.2d 146; McClintock v. Skelly Oil Co., 232 Mo.App. 1204, 114 S.W.2d 181; Dauster v. Star Mfg. Co. (Mo. App.), 145 S.W.2d 499; Buckner v. Quick Seal, Inc., 233 Mo.App. 273, 118 S.W.2d 100; Conn v. Chestnut St. Realty Co., 235 Mo.App. 309, 133 S.W.2d 1056; Payne v. Sullivan County, 225 Mo.App. 126, 36 S.W.2d 127; Cuchi v. George C. Pendergast & Sons (Mo. App.), 72 S.W.2d 136. (3) The medical expense was properly allowed by the Commission. Evans v. Chevrolet Motor Co., 232 Mo.App. 927, 105 S.W.2d 1081; Klasing v. Fred Schmitt Contracting Co., 335 Mo. 721, 73 S.W.2d 1011; Garnant v. Shell Petroleum Corp., 228 Mo.App. 256, 65 S.W.2d 1052; Schutz v. Great American Ins. Co., 231 Mo.App. 640, 103 S.W.2d 904; Martensen v. Schutte Lumber Co. (Mo. App.), 162 S.W.2d 312.
ANDERSON
This is an appeal by an employer and an insurer from a judgment of the circuit court, affirming an award of the Missouri Workmen's Compensation Commission in favor of respondent, widow and dependent of Frank Reeves, an employee at the time of his death of appellant Fraser-Brace Engineering Company.
Respondent's claim, filed with the Commission, alleged that Frank Reeves, claimant's husband, died August 5, 1941, as a result of an accident which he sustained on July 21, 1941, when he stepped on a nail in the course of his employment at the T.N.T. plant at Weldon Springs, Missouri, the immediate cause of death being tetanus, which developed following said accident. The Commission made an award in favor of claimant, and the circuit court affirmed the award.
In this court, appellants contend, in their first assignment of error, that there was not sufficient competent evidence to support the finding and award that Frank Reeves died as a result of an accident arising out of and in the course of his employment. This contention necesitates a review of the evidence, stated in its most favorable aspect to to respondent's case.
On July 21, 1941, and for some time prior thereto, Frank Reeves had been employed by the Fraser-Brace Engineering Company as a carpenter's helper at the Weldon Springs T. N. T. plant in St. Charles County. On the day of the alleged accident, he was engaged in digging holes for concrete footings. He had left home that morning about 6 o'clock, and had ridden to work in an automobile with several other workmen.
The claimant, Mrs. Reeves, testified that on the day before, which was a Sunday, while her husband sat around the house reading the papers, she noticed his feet, and saw "no marks or scars or anything of that kind" on them. She further testified that when he came home from work on July 21st she saw him limping as he came through the hall, and noticed he had a tense facial expression. Mrs. Dreyling, a nurse, who was present at the time, asked Mr. Reeves what had happened, and after receiving his reply, examined his foot and saw on it a mark which she described as "a little dry red spot," which looked as if dried blood were around it. The skin was broken, but the wound, which was in the center of the heel of the left foot, had not bled much. She told him to wash the wound carefully, to put iodine on it, and to be sure to get the iodine inside the wound. Mr. Rees, however, did nothing to his foot other than to put alcohol on it.
The record shows that Reeves returned to work the following day, and worked everyday or night through the next Saturday, changing to the night shift on Wednesday, July 23rd. On the following Sunday morning he came home from work about 9 o'clock, dressed, and went to church. After returning from church, he went to bed. About 2:30 in the afternoon, respondent heard him in the kitchen. He sounded as though he were choking. When he choked again, she and Mrs. Dreyling went into the kitchen, and Mrs. Dreyling beat him on the back. In a few minutes he was all right. At the time he was extremely nervous, and said he could not swallow. About a half hour later, Mrs. Dreyling suggested that a doctor be called, and claimant called Dr. Douglas V. Reese, who came and prescribed medicine for him. On Monday afternoon, respondent took her husband to Dr. Reese's office, and Dr. Reese sent him to Dr. Bernard McMahon, a throat specialist. Dr. McMahon sent him to Barnes Hospital on Tuesday morning for an examination.
Dr McMahon testified that an X-ray examination revealed a complete obstruction of his esophagus at the level behind the larynx. He stated that he performed an esophagoscopy on Wednesday, July 30th, which consisted in introducing a tube into the esophagus in order to see what was causing the constriction. This examination revealed no pathology and no inflammation, except a slight thickening of the membrane, which might be found in any man's throat. The patient still could not swallow, and they inserted a nasal feeding tube which was kept in...
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