Russell v. Southwest Grease & Oil Co.

• Decision Date: 06 May 1974
• Docket Number: No. 26529,26529
• Parties: Harry F. RUSSELL, Deceased et al., Appellants, v. SOUTHWEST GREASE AND OIL COMPANY, Employer, and Aetna Casualty & Surety Company, Insurer, Respondents.
• Court: Missouri Court of Appeals

Page 776

509 S.W.2d 776

Harry F. RUSSELL, Deceased et al., Appellants, v. SOUTHWEST GREASE AND OIL COMPANY, Employer, and Aetna Casualty & Surety Company, Insurer, Respondents.

No. 26529.

Missouri Court of Appeals, Kansas City District.

May 6, 1974.

John P. Ryan, Jr., Kansas City, for appellants.

James F. Stigall, Raytown, for respondents.

Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.

WASSERSTROM, Judge.

On a claim for Workmen's Compensation benefits by the widow and daughter of a deceased employee, the referee denied compensation. His decision was affirmed on review by the Industrial Commission, whose decision in turn was affirmed by the Circuit Court. The claimants again appeal to this court.

At approximtely 3:00 p.m. on February 6, 1969, Harry F. Russell, the deceased employee, delivered six 55-gallon drums of undercoating to the Triad Vault Company. Each of these drums weighed approximately 429 pounds and was being transported in an open bed truck fitted with a hydraulic lift at the rear.

Russell backed the truck into the Triad building through large service doors. Then he had a brief conversation with John Heflin, a Triad employee, after which Russell moved three of the barrels to the lift at the rear of the truck and lowered the barrels by use of the lift to the floor. Heflin observed this operation and saw nothing unusual about the way Russell moved the barrels. At this point Heflin went to the restroom to wash his hands. When he returned the second group of three barrels had been moved to the lift at the back of the truck, the lift was back in the up position, but he did not see Russell. After calling and commencing a search, Heflin discovered Russell just outside the large service doors through which the truck had been driven into the premises. Heflin testified that Russell's face was blue, his eyes were bugged out and he could hear him gargling and gasping for breath. An ambulance was called which took Russell to the hospital where he was pronounced dead on arrival. No one saw Russell from the time he moved the first three drums to the back of the truck until the time that he was found gasping on the ground by Heflin. Russell was unable to respond to questions and made no statement to anyone from the time Heflin found him until his death.

Claimants introduced the testimony of Dr. Edward Robert Nigro, Russell's personal physician. Dr. Nigro testified that he and his associates had been treating Russell for arteriosclerosis since 1952 and that EKGs taken over the years had shown posterior coronary insufficiency with lateral involvement. Although no post mortem was performed and although Dr. Nigro did not examine the body following death, he signed the death certificate showing the cause of death to be 'coronary thrombosis-arteriosclerotic heart disease.' There was no evidence offered to show any traumatic injury, other than a statement by the widow that approximately 24 hours after the death she observed a darkness on one side of deceased's face in the nature of a bruise.

The record shows that the work being done by Russell on the afternoon of his death was the same usual type of work which he had performed for the previous five or six years. It was customary for him to move barrels of the same type and weight and unload them from his truck without the assistance of any helper, and six barrels constituted a normal delivery.

On these facts the Industrial Commission found that the death was not caused by accident so as to be compensable, stating in this respect as follows:

'The Comission finds from all of the evidence that on February 6, 1969, and for a number of years prior thereto, the employee had been suffering from arteriosclerotic heart disease and that on said date he was performing his normal duties and that his death was not caused by accident or unusual or abnormal strain but was caused by coronary thrombosis precipitated by arrythmia as the result of his normal strenuous work and that the presumption that the employee's death arose out of and in the course of his employment as the result of accident or unusual strain was rebutted by the medical evidence.'

Claimants challenge that decision by the following two points: 1) that claimants are entitled to the benefit of a presumption that the death was caused by accident in the course and arising out of employment, which presumption stands unrebutted; and 2) that the Commission erred in following the rule that a heart attack is not 'accidental' unless it be the result of unusual exertion and strain.

I.

The Missouri Workmen's Compensation Act, § 287.120, RSMo 1969, V.A.M.S., provides compensation for death of an employee only if 'by accident arising out of and in the course of his employment.' The Commission held that the claimants had not met their burden of proof of showing these required elements, especially that of 'accident'. Claimants strenuously oppose that conclusion, arguing that having shown that Russell died under unexplained circumstances on the premises where he was employed and during the hours of employment, a presumption arises that the death occurred in the course of and in consequence of his employment. As stated in appellants' reply brief, this contention is 'the cornerstone of the appellant's (sic) theory of recovery in this case.'

A.

There are a number of decisions in this state which recognize the theoretical validity of the presumption stated, the leading case being Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165 (1949), although strangely enough no Missouri case has been cited or found actually permitting recovery by application of this presumption. However, this presumption does not extend to a showing of the element of 'accident'. In the many Missouri cases discussing the presumption, the element of accident either plainly appeared or was readily inferable from the surrounding circumstances, and the only debated issue was whether the injury 'arose out of and in the course of employment'.

There is sound logic in presuming that an unexplained injury or death which occurs on the premises and during the time of employment has a causal connection with the employment activities. Work-relatedness naturally follows as a rebuttable presumption from those facts. That is far different, however, from taking the further step of inferring that such an unexplained injury or death occurred by reason of accident rather than from a natural cause. With respect to this latter matter, there is no logical basis for an inference that the unwitnessed, unexplained death resulted from 'an unexpected or unforeseen event happening suddenly and violently,' as the word 'accident' is defined in § 287.020, RSMo 1969, V.A.M.S.

While there is no Missouri case drawing this distinction, there are decisions from other jurisdictions which are persuasive in that direction. Thus in Maas v. Otis Elevator Co., 140 Pa.Super. 33, 12 A. 814, 816 (1940) the deceased employee died of an unwitnessed heart attack after climbing a ladder to the roof in order to inspect an elevator. This activity fell within the employee's usual and ordinary routine. The court held that there was no presumption of 'accident' and that it was therefore error to award compensation to the widow:

'The mere fact that this employee was stricken while in the course of his employment, instead of at his home, or on his way to work, raises no presumption in favor of the claimant. Before she is entitled to an award, the evidence submitted in her behalf, must show either directly or circumstantially, that her husband sustained an accident, within the meaning of the statute.'

So also in Hrynkiw v. Davis & Lyon, 24 App.Div.2d 1056, 265 N.Y.S.2d 321, aff'd, 21 N.Y.2d 681, 234 N.E.2d 453 (1967), a painter was found dead on the premises where he had been working. It was held that a presumption cannot be used as a substitute for evidence of accident and that there could be no recovery because of a lack of evidence of any unusual exertion.

Likewise, in York v. State Workmen's Ins. Fund, 131 Pa.Super. 496, 200 A. 230 (1938), a coal miner was found dead just outside the mine alongside two coal cars which had just been dumped, with a third car half emptied. Medical testimony was that death resulted from bursting of a coronary artery. Although the court sustained the granting of compensation on the basis that the inference drawn by the Compensation Board from all the circumstances were permissible, the court made this pertinent observation: 'We readily recognize that a presumption of an accidental death is not raised by simply showing a collapse of an employee while at his work. There must be affirmative proof of an accident . . .'

In a jurisdiction following the lenient rule under which there may be a finding of 'accident' even without any unusual strain, there has been a refusal to apply the 'found dead' presumption without some independent evidence showing an accident in the usual traumatic sense. In this respect, Wilsey v. Reisinger, 76 N.J.Super. 20, 183 A.2d 717, l.c. 721 (1962) holds as follows:

'We are mindful of the rule, that where an employee is found dead from accident and there is no evidence offered as to just how the death occurred the court will presume that the accident causing the death was one that arose out of and in the course of the employment. (citing cases) However, we find that in each case in which this rule has been invoked the evidence established the occurrence of an 'accident' in the ordinary traumatic sense of the word, as distinguished...