Stephens v. Spuck Iron & Foundry Co.

• Decision Date: 08 November 1948
• Docket Number: 40806
• Citation: 214 S.W.2d 534,358 Mo. 372
• Parties: Florence Stephens, Dependent of Lem Stephens, Deceased, Respondent, v. Spuck Iron & Foundry Company, a Corporation, Appellant
• Court: Missouri Supreme Court

214 S.W.2d 534

358 Mo. 372

Florence Stephens, Dependent of Lem Stephens, Deceased, Respondent, v. Spuck Iron & Foundry Company, a Corporation, Appellant

No. 40806

Supreme Court of Missouri

November 8, 1948

Appeal from Circuit Court of City of St. Louis; Hon. W. L Mason, Judge.

Affirmed.

Jesse L. Renderer, Norris H. Allen, and Anderson, Gilbert, Wolfort Allen & Bierman for appellant.

(1) The evidence shows that deceased's injury did not arise out of and in the course of his employment because by his own uncontrolled emotions and vile language directed against a fellow employee he provoked and initiated the cause of his injury. Staten v. Long-Turner Const. Co., 185 S.W.2d 375; Sanders v. Jarka Corp., 59 A.2d 415; Kimbro v. Black & White Cab Co., 50 Ga.App. 143, 177 S.E. 274; Marion County Coal Co. v. Industrial Commission, 292 Ill. 463; Knocks v. Metal Package Corp., 194 A.D 65, 185 N.Y.S. 309; Gross v. Great Atlantic & Pacific Tea Co., 25 So.2d 837. (2) Deceased stepped aside from his employment and initiated the cause of his injury and thus was in the status of an aggressor and an aggressor is not in the course of his employment. Cases supra Point (1); Triangle Auto Painting & Trimming Co. v. Industrial Commission, 346 Ill. 609, 178 N.E. 886; Merkel v. T.A. Gillespie Co., Inc., 162 A. 250, 10 N.J. Misc. 1081; Cherry v. Magnolia Petroleum Co., 24 S.W.2d 549; Fulton Bag & Cotton Mills v. Haynie, 43 Ga.App. 579, 159 S.E. 781; Garrett v. Texas-Louisiana Power Co., 19 La. App. 858, 141 So. 809. (3) There was no medical evidence, on the medical question involved, that went beyond the point that the injury might or could have caused the death and none that, in the expert's opinion, it did cause the death and such evidence is insufficient to sustain the award. Stewart v. Martin, 353 Mo. 1, 181 S.W.2d 657; Hunt v. Armour & Co., 345 Mo. 677, 136 S.W.2d 312; Kimmie v. Terminal R. Assn. of St. Louis, 334 Mo. 596, 66 S.W.2d 561; Long v. F.W. Woolworth Co., 159 S.W.2d 619; O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55. (4) The evidence concerning a causal connection between the injury and the death left the question in equipoise and was insufficient to show whether the death resulted from any one of a number of causes, only one of which could concern liability, and the evidence stands in the realm of speculation and conjecture. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644; Draper v. Louisville & N.R. Co., 348 Mo. 886, 156 S.W.2d 626; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236. (5) Respondent failed to sustain the burden of proof that the injury caused the death. Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644.

Champ C. Stonebraker for respondent; Orville Richardson of counsel.

(1) There was substantial evidence upon the whole record that Stephens' hip was broken as a result of an accident arising out of and in the course of his employment. At least one of the proximate, contributing causes of Stephens' fall, injury and death was his accidental tripping over a mold on the floor. Giles v. Moundridge Milling Co., 351 Mo. 568, 173 S.W.2d 745; Northern v. Chesapeake & Gulf Fisheries Co., 320 Mo. 1011, 8 S.W.2d 982. (2) Common-law rules applicable to tort law cannot be applied to the purely statutory relief of workmen's compensation. Every case must be determined upon its own facts without reference to a formula. Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Hartford Accident & Indemnity Co. v. Cardillo, 112 F.2d 11; Cardillo v. Liberty Mutual Co., 330 U.S. 469; Farmers' Mfg. Co. v. Warfel, 144 Va. 98, 131 S.E. 241; Hanson v. Robitshek-Schneider Co., 209 Minn. 596, 297 N.W. 19. (3) The better rule, followed in Missouri and a majority of other states, allows recovery for injuries or death sustained in an assault even though the injured employee was an aggressor in word or deed, providing that there is a reasonable causal relation between the argument which gave rise to the assault and the subsequent injury. Mere words do not constitute the user as an aggressor in an assault. Keithley v. Stone & Webster Engineering Corp., 226 Mo.App. 1122, 49 S.W.2d 296; Kaiser v. Reardon Co., 195 S.W.2d 477; O'Dell v. Lost Trail, Inc., 337 Mo. 114, 85 S.W.2d 441; Beem v. H.D. Lee Mercantile Co., 337 Mo. 114, 85 S.W.2d 441; Hartford Accident & Indemnity Co. v. Cardillo, 112 F.2d 11; Southern Pacific Co. v. Sheppeard, 112 F.2d 147; Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 199 A. 653; Scott v. Travelers Ins. Co., 49 Ga.App. 157, 174 S.E. 629; Hansen v. Frankfort Chair Co., 249 Ky. 194, 60 S.W.2d 349; Pekin Cooperage Co. v. Industrial Comm., 285 Ill. 31, 120 N.E. 530; Swift & Co. v. Industrial Comm., 287 Ill. 564, 122 N.E. 796; Fey v. Bobrink, 84 Ind.App. 559, 151 N.E. 705; Delco-Remy Corp. v. Carlton, 96 Ind.App. 493, 185 N.E. 341; Milton v. T.J. Moss Tie Co., 20 So.2d 570; Newell v. Moreau, 94 N.H. 439, 55 A.2d 476; Knocks v. Metal Package Corp., 231 N.Y. 78, 131 N.E. 741; Levy v. World-Telegram, 247 A.D. 830, 286 N.Y.S. 37, s.c. 255 A.D. 237, 7 N.Y.S. (2d) 546, app. dism. 280 N.Y. 680, 21 N.E.2d 193, rearg. den. 280 N.Y. 812, 21 N.E.2d 697, s.c. 259 A.D. 943, 19 N.Y.S. (2d) 890, rearg. den. 21 N.Y.S. (2d) 615, aff. 285 N.Y. 533, 32 N.E.2d 827; Schueller v. Armour & Co., 116 Pa.Super. 323, 176 A. 527; Indemnity Ins. Co. v. Scott, 278 S.W. 347, affirmed in 298 S.W. 414; Crowder v. State Comp. Comr., 115 W.Va. 12, 174 S.E. 480. (3) The employer's "Report of Injury" and its "Answer to the Claim for Compensation" both admit that Stephens' death on November 20, 1946, was a result of his fall and injury on November 6, 1946. These documents constitute admissions against interest and foreclose the issues now raised on appeal as to the sufficiency of the oral testimony of Dr. Gradwohl. Tralle v. Chevrolet Motor Co., 230 Mo.App. 534, 92 S.W.2d 966; Lamkins v. Copper-Clad Malleable Range Corp., 46 S.W.2d 941; Floyd v. A.Y. McDonald Mfg. Co., 226 Mo.App. 444, 46 S.W.2d 251; Lumpkin v. Sherdley Realty Co., 227 Mo.App. 306, 53 S.W.2d 386. (4) These documents are equivalent to pleadings and constitute judicial admissions. Albert v. Krey Packing Co., 195 S.W.2d 890; Bartels v. Owens Paper Box Co., 49 S.W.2d 239; Ellegood v. Brashear Freight Lines, Inc., 238 Mo.App. 971, 162 S.W.2d 628; James v. Bailey Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W.2d 118. (5) It was not necessary that the formal opinion of an expert be obtained to express an opinion that the injury did cause the death. Nick v. International Shoe Co., 200 S.W.2d 590; Garrison v. U.S. Cartridge Co., 197 S.W.2d 675; Fetter v. Fidelity & Casualty Co., 174 Mo. 256, 73 S.W. 592. (6) The testimony of Dr. Gradwohl alone was sufficient to establish the causal connection between the injury and the death. It was not impaired by cross-examination. Morrow v. Orscheln Bros. Truck Lines, 235 Mo.App. 1166, 151 S.W.2d 138; Schroeder v. Western Union Telegraph Co., 129 S.W.2d 917; Bumgardner v. St. Louis Pub. Serv. Co., 340 Mo. 521, 102 S.W.2d 594; Waterous v. Columbia Natl. Life Ins. Co., 353 Mo. 1093, 186 S.W.2d 456. (7) Dr. Gradwohl's admission that emboli may, in general, arise from conditions other than were present in this case, does not even prove that such a result was "possible" in the case of Lem Stephens. Speculation cannot defeat a recovery where, as here, there was substantial evidence that the death occurred as a result of the fall for which compensation was due. Sparks v. Auslander, 353 Mo. 177, 182 S.W.2d 167.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

This is a workmen's compensation case. Claimant received an award of $ 11,200 by the industrial commission and the self insured employer appealed to the circuit court. The circuit court sustained the finding of the commission and the employer again appealed.

Lem Stephens, deceased, was the employee; claimant is his widow and sole dependent. Two contentions are made by appellant: (1) That there was no substantial evidence that the accident, which claimant says resulted in the death of her husband, arose out of and in the course of his employment; and (2) that there was no substantial evidence that the injury received in the accident caused or contributed to the death.

Deceased was a moulder; was 60 years old; had been employed by appellant at its foundry in St. Louis for about 5 years. November 6, 1946, he sustained an injury at appellant's foundry; was taken to the Christian Hospital, St. Louis, where he died November 20th, two weeks after injury. Edward B. Stengel, a moulder, also worked at appellant's foundry. About 2 or 3 weeks prior to November 6th, there was some discussion by the employees about working on Saturday. Some wanted to work on Saturdays; others did not. Stengel was among those who opposed working on Saturday; deceased was among those who favored working on Saturday. November 6th, day of accident, was on Wednesday. Deceased had worked on the previout Saturday; Stengel did not.

About 2:30 p.m., November 6th, Stengel, Emanuel Gaona, John P Conley, Walter Semenske, and Marion Sabatino, moulders, were sitting on, or were about a bench in what is termed the doghouse. They were waiting "for the iron to come down." Such waits occurred now and then when the iron was not hot enough for delivery to the moulders. Deceased came into the doghouse and an altercation occurred between him and Stengel; deceased tripped and fell; his left hip was broken by the fall and he died two weeks thereafter, as...