Taylor v. City Ice & Fuel Co.

• Decision Date: 07 February 1933
• Docket Number: No. 22564.,22564.
• Citation: 56 S.W.2d 812
• Court: Missouri Court of Appeals
• Parties: TAYLOR v. CITY ICE & FUEL CO.

56 S.W.2d 812

TAYLOR v. CITY ICE & FUEL CO.

No. 22564.

St. Louis Court of Appeals. Missouri.

February 7, 1933.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Rosa Taylor, claimant, for the death of her husband, Edward Taylor, opposed by the City Ice & Fuel Company, employer, self-insurer. From a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of the employer and insurer, claimant appeals.

Affirmed.

Frank S. Bledsoe, of St. Louis, for appellant.

Fordyce, White, Mayne & Williams, of St. Louis, for respondent.

BECKER, P. J.

This case is brought here on appeal by Rosa Taylor, dependent, widow of Edward Taylor, deceased, from the judgment of the circuit court of the city of St. Louis affirming an award of the Missouri Workmen's Compensation Commission in favor of the employer and insurer, and against the claimant.

Edward Taylor, while an employee of the City Ice & Fuel Company, filed a claim for compensation with the Missouri Workmen's Compensation Commission based upon an alleged accidental freezing of his feet arising out of and in the course of his employment, while standing in the yards of the employer loading coal into wagons and trucks by means of an electric machine.

Before the claim was heard Taylor died, while being operated on for ventral hernia. After his death his widow, appellant here, duly filed her claim, as his dependent, for compensation on account of his death, and also for the alleged total and permanent disability to Taylor's feet and legs.

On February 25, 1931, the commission, after hearing, found for the plaintiff and awarded her compensation for 191 weeks at the rate of $17.50 per week, for permanent partial disability of the feet and legs of the deceased, but held that his death was not caused by the accident. On April 13, 1931, the commission reversed this award and entered its final award holding that the claimant failed to prove that the deceased suffered an injury by accident arising out of and in the course of his employment, which final award was upheld by the circuit court on appeal.

Plaintiff, appellant here, contends that the commission acted outside and in excess of its powers, in that there was no competent evidence supporting the award.

The record discloses that Edward Taylor for many years prior to 1929 had been employed as a laborer by the City Ice & Fuel Company; that on December 18, 1929, he was working in the company's yard in St. Louis, at Hodiamont and Cates avenues. His duties were to operate coal conveyors used by the company to load wagons and trucks. These conveyors, some four or five in number, were controlled by a switch, making it necessary, in operating the machines, that Taylor be present to start them and be present during their operation, and to stop them when a vehicle was loaded. His hours of work were from 6 a. m. until 5 p. m.

The day in question had been preceded by rain and sleet, and moist snow fell from midnight until 8:45 o'clock in the morning of the 18th of December; and from that time on a dry snow continued to fall throughout the day the total precipitation for the day being in excess of five inches.

Clifford Washington testified that he was a truck driver for the Polar Wave and City Ice & Fuel Company and that Taylor, in December, 1929, was living at his home as a boarder; that one evening Taylor came home and said that his feet had been frostbitten and were causing him pain; that Taylor did not, however, state, nor did he (Washington) ask Taylor where he "got his feet frozen." With reference to the place where Taylor customarily worked in the yard of his employer, the witness was asked:

"Q. Was there anything near him to keep him warm? A. He had a fire.

"Q. Was it a fire in one of those iron salamanders?

A. Yes.

"Q. Did you ever warm your hands over that fire? A. Every time I came in the yard."

According to Washington, this fire in the salamander was within fifteen feet of where Taylor worked. He further testified that he had never frozen his feet while working for this defendant employer, and that he knew of no employee beside Taylor who had his feet frozen at the yards during that winter.

"Q. And was there snow over where he was standing? A. They would clean away the place where they had to work; and around the fire it would melt.

"Q. Do you know who cleaned the snow away? A. Himself.

"Q. Taylor? A. Yes."

Witness Henry Wilson testified that Taylor came into the engine room, which was about a block distant from the conveyors for the purpose of warming himself. "He didn't stay in there long. He never stayed in there long. He would come in and warm his feet a little and put on his shoes and go back out. * * * He said his feet were frostbitten. * * * He would go to the fire whenever he wanted to—whenever he got cold."

Wilson placed the time when Taylor told him that his feet were frostbitten as 9 o'clock in the morning, and so far as this witness was concerned, though he saw Taylor each day, beyond this one occasion Taylor never again spoke of or referred to having his feet frostbitten. As to how much snow there was around the conveyors, Wilson testified, "a little around there. There was not much around the conveyor part, it was most on the ground." The government records disclose that the temperature on December 18, 1930, was twenty-nine degrees at 7 a. m.; twenty-eight degrees at 8 o'clock; and twenty-six degrees at 9 o'clock.

The record discloses that Taylor had been a patient at the City Hospital, No. 2, in St. Louis, on several occasions.

In September, 1929, Taylor went to the hospital for chronic constipation; in May, 1929, for a stab wound, as the result of which he had a ventral hernia; and in March, 1930, Taylor was admitted to the hospital with both feet in a gangrenous condition (reported) as the result of frostbitten feet, and at that time the little toe of his right foot was amputated. Taylor next went to the hospital in June, 1930, when it was found necessary to operate upon his ventral hernia, and he died on the operating table. The hospital record attributes his death to myocarditis. On this last occasion the examination disclosed that Taylor had "a definite heart involvement," and showed "a positive Wasserman reaction." He had a "pulmonary condition in his...