Tralle v. Chevrolet Motor Co., 18538.

• Decision Date: 06 April 1936
• Docket Number: No. 18538.,18538.
• Citation: 92 S.W.2d 966
• Parties: MARTHA TRALLE, RESPONDENT, v. CHEVROLET MOTOR COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

92 S.W.2d 966

MARTHA TRALLE, RESPONDENT, v. CHEVROLET MOTOR COMPANY, APPELLANT.

No. 18538.

Kansas City Court of Appeals. Missouri.

April 6, 1936.

Appeal from Circuit Court of Jackson County. — Hon. Thomas J. Seehorn, Judge.

AFFIRMED.

James E. Burke and Madden, Freeman & Madden for respondent.

Miller, Gumbiner & Sheffrey, R.C. Van Valkenburgh and Julius C. Shapiro for appellant.

REYNOLDS, J.

This is an appeal from the final judgment of the Circuit Court of Jackson County affirming an award of the Workmen's Compensation Commission.

On January 17, 1934, the respondent, Mrs. Martha Tralle, as claimant, filed before the Workmen's Compensation Commission her claim as the widow and dependent of Edmound H. Tralle, her deceased husband, an employee of the Chevrolet Motor Company, for compensation on account of accidental injuries alleged to have been sustained by the said Edmound H. Tralle on September 29, 1933, arising out of and in the course of his employment with said motor company, from which he died on October 24, 1933.

It was alleged in said claim that the deceased Edmound H. Tralle was run over by a truck being operated by another employee of the defendant company, causing injury to his leg, foot, and ankle.

On February 2, 1934, the defendant company, as employer and also as self-insurer, filed its answer to said complaint in which it admitted that the deceased employee, Edmound H. Tralle, and it, as his employer, were operating under and were subject to the Missouri Compensation Act at the time as to the matters contained in said answer and that it was a self-insurer and in which it further specifically denied that the deceased Edmound H. Tralle sustained an accident resulting in personal injury and death arising out of and in the course of his employment within the purview of and as provided by the Missouri Compensation Act.

The claim was heard on April 11, 1934, before the Honorable Orin H. Shaw, a member of the commission. Upon such hearing, the evidence offered by claimant in support of her claim as well as that offered by the defendant company in opposition thereto was received and duly preserved by the commissioner. Thereafter, on April 30, 1934, the said commissioner made report on said hearing, accompanied by his findings of fact on the evidence, awarding no compensation for the accident and denying compensation therefor.

Thereafter, claimant filed an application for review, together with an application for leave to introduce additional evidence before the entire commission, which was by the commission sustained; and the claim was set for hearing for review for the purpose of hearing additional testimony offered on Thursday, June 21, 1934, and on said date the Honorable JAY J. JAMES, a member of the commission acting for the commission, heard the additional evidence offered and caused it to be transcribed and submitted before the full commission.

On January 19, 1935, the commission made final award, accompanied by its findings of fact and rulings of law, in favor of the claimant, reversing its former award and allowing her compensation (the Honorable ORIN H. SHAW dissenting), which final award is in part as follows:

"The above parties having submitted their disagreement or claim for compensation for the death of the above employee to the undersigned member — of the Missouri Workmen's Compensation Commission, and after hearing the parties at issue, their representatives, witnesses and evidence, the undersigned hereby find and award — compensation for said accident in favor of the following dependents of said employee and against the said employer and insurer as provided in the Missouri Workmen's Compensation Law, as follows:

                "For Burial Expenses the sum of $150.00
                "For Death Benefits:  "To Martha Tralle
                                      the sum of $10.03
                                       per week for 300
                                       weeks.*
                                       "*Or until prior
                                    death or remarriage
                                   and then to Virginia
                                      Tralle, daughter
                                      * * *
                

"Given at the City of Jefferson, State of Missouri, this 19th day of January, 1935.

                        "Jay J. James
                            "Member, Missouri Workmen's
                               Compensation Commission
                        "Edgar C. Nelson
                           "Member, Missouri Workmen's
                              Compensation Commission
                        "Orin H. Shaw,
                           "Dissenting Member, Missouri
                               Compensation Commission."
                

Accompanying said award was the findings of fact made by the commission, together with the conclusions of law based thereon upon which said award was based, which is, in substance, as follows: The accident was on September 29, 1933, at Leeds, Missouri. Employee Edmound H. Tralle (deceased) was in the employ of the Chevrolet Motor Company at the time of the accident. Both employer and employee at the time of the accident had elected to accept the law. The claim for compensation was timely filed. All of employer's compensation liability for accident was insured by insurer. The employee was engaged in trucking batteries; and the truck ran over his foot and leg, cutting and spraining his right ankle. The accident caused death, which occurred October 24, 1933. The employee's dependents, including those who would be dependents should the widow die or remarry, were listed as Martha Tralle, wife of the employee, dependency total, Virginia Tralle, daughter of employee, dependency total.

It further found that the employee's death on October 24, 1933, was the result of an aggravation of his diabetic condition by the accident of September 29, 1933. As a conclusion of law upon the facts found, it held that the dependents are entitled to compensation as set out.

Thereafter, under the certificate of the commission, an appeal by the defendant company from said award allowing compensation was duly lodged in the Circuit Court of Jackson County by the return to said court by the commission of all documents and papers on file in the cause, together with a transcript of the evidence and the award, the orders and the decisions by it made thereon.

Thereafter, on July 13, 1935, upon hearing had on said appeal, the Circuit Court of Jackson County affirmed the award appealed from and entered judgment accordingly. This appeal is prosecuted from such judgment.

On November 25, 1933, the defendant company as employer and self-insurer filed with the Workmen's Compensation Commission its report of the accident, in which it stated that the employee "Slipped while trucking some batteries, truck running over his foot and leg, cutting and spraining his right ankle" and in which it described the injury received by the employee as a "cut, sprained and lacerated right ankle." It further appears from the said report that, in answer to the question therein, "Is accident under the Law?" the defendant company stated, "Yes." It further appears from said report that the employee was in the service of the defendant company on September 29, 1933, at the time the accident occurred. This report was introduced in evidence at the time of the first hearing before Commissioner SHAW. This report appears to have been made by the personal director of the defendant company, and there is no contention made that he was without authority to prepare and file the report. At the time of the first hearing before Commissioner SHAW, the record shows that the following took place:

"COMMISSIONER SHAW: Let the record show $15.05 is the employee's average weekly wage. Is there any question about this employee receiving an accident arising out of the course of his employment?

"MR. SHAPIRO (Counsel for employer): Judge, there may be some question about that, although he received a sprained ankle, or at least there is some question about proof on the matter. We don't know anyone that saw the alleged accident.

MR. BURKE: There is no question about it. You have it on your report.

"Mr. SHAPIRO: He received a sprained ankle, but the evidence will be here as to the condition of the foot, however, he received it."

It sufficiently appears from the employer's report of accident and other admissions of record and from the evidence introduced at the hearings before the commission that Mr. Tralle, at the time of his death, was an employee of the Chevrolet Motor Company at its assembly plant in Kansas City, Missouri, and, on September 29, 1933, sustained an accidental injury to his right foot and ankle and to the upper part of his right leg. It is admitted by counsel for the defendant company, at the time of the hearing, that Mr. Tralle received an accidental injury on the date in question although the evidence of the injury was disputed. It was further shown by the evidence in the record, upon the hearing before the commission, that, on the morning of September 29, 1933, at the time Mr. Tralle went to work, he was not suffering from injury of any kind; that, on the evening of September 29, when he returned home, he was limping and had a marked appearance of pain in his right foot; that he had a cut on his right foot and ankle which went to the bone, to which cut some of his stocking was adhering. The wound was bleeding and began to swell. Throughout that evening and night, he complained of pain shooting through his leg. The next day, he returned to work but was unable to complete a full day's work. From September 30, 1933, until his death on October 24, 1933, he never returned to work. The record does not show that any one actually saw Mr. Tralle at the time that he was injured or saw the accident in question. It shows, however, that, immediately prior to his injury, Mr. Tralle was loading a small truck on the dock of the defendant company; that, immediately after his injury, Mr. Tralle reported to Mr. Walter R. Brownhill, the stock room foreman, that he had "sprained his ankle" and Mr. Brownhill examined the injured leg and found an abrasion "Just where the truck had...