Wall v. Lemons, Inc.

• Decision Date: 26 August 1932
• Docket Number: No. 17455.,17455.
• Citation: 51 S.W.2d 194
• Parties: OLLIE WALL ET AL., RESPONDENTS, v. HENRY L. LEMONS, INC., EMPLOYER; CENTURY INDEMNITY CO., INSURER, APPELLANTS.
• Court: Missouri Court of Appeals

51 S.W.2d 194

OLLIE WALL ET AL., RESPONDENTS, v. HENRY L. LEMONS, INC., EMPLOYER; CENTURY INDEMNITY CO., INSURER, APPELLANTS.

No. 17455.

Kansas City Court of Appeals. Missouri.

August 26, 1932.

Appeal from the Circuit Court of Lafayette County. — Hon. Robert M. Reynolds, Judge.

AFFIRMED.

Lyons & Ristine and B.A. Hamilton for respondent.

Horace F. Blackwell, Henry M. Shughart and Lowell R. Johnson for appellant.

TRIMBLE, P.J.

Herein, the Employer and the Insurer have appealed from a judgment of the circuit court of Lafayette county, affirming an award of the Missouri Compensation Commission made in favor of the widow and minor child of a deceased employe, George Wall, a truck driver for the Employer, who, while engaged in trucking for his employer, died as a result, so Claimants assert, of a fall from his truckload of pipe a distance of about five feet to the ground.

The fall occurred on the morning of October 15, 1930, and the death occurred shortly after two o'clock in the afternoon of the same day.

A claim was filed for compensation November 13, 1930, twenty-nine days after the employe's death. On February 25, 1931, the claim was heard by a Referee of the Commission who, on March 11, 1931, entered an award in favor of Claimants for the total death benefit. Application for review being filed by appellants, the full Commission, on April 3, 1931, made a final award affirming the Referee's award and granting to the Claimants compensation at the rate of $19.23 per week for 300 weeks and $150 for funeral expenses. The employer and insurers in due time appealed to the circuit court where the same was heard upon the record certified by the Commission, and on September 9, 1931, the circuit court affirmed the award of the Commission. As stated, from this judgment the employer and insurer have appealed to this court.

Prior to going to work for the Lemons Company, employer herein, deceased worked for more than a year as a truck driver for the Hinderliter Tool Company, and was paid $32 per week and all his expenses including room rent and board. While working for said Lemons Company in the same capacity, he was paid $7.50 a day. Up to October 15, 1930, and the happening of the occurrence alleged or claimed to have caused his death, George Wall was a strong able-bodied man, had never had any sickness, and when he left home to go to work on the morning of the day of his death he was well and made no complaint of feeling ill or being sick.

He was working that day near Waverly, Missouri, and was engaged in hauling a load of pipe from that place to Carrollton, Missouri. According to the testimony of deceased's fourteen-year-old son, Delmer Wall, one of the Claimants, a pipe became loose, and his father, in the attempt to fasten said pipe on the load, undertook to tighten it, and in doing so, slipped and fell about five feet to the ground, striking his side against the truck as he fell and then "scooted up on to the fender" where he vomited and then after about five minutes got back on the truck and drove on toward Carrollton. A few minutes after he got back on the truck, Delmer left his father and returned home. The father drove on to Carrollton where he met an older son, named Delbert, who says his father looked pale. The two ate their lunch and then started back to Waverly. On the way, the father became nauseated again. The father told him of having fallen from the truck, but did not tell anyone else so far as known. They arrived at the garage at Waverly about two P.M. and in a few minutes thereafter, the father fell to the ground and died without making any further statements. A doctor, and then the coroner, were called.

No one but the fourteen-year-old son, Delmer, was with deceased when he fell. The father told the son not to say anything to his mother about the fall for fear of alarming her (she was just recovering from a serious illness), and so the boy said nothing about it, and the widow did not learn of the fall until some time thereafter when, in talking about the father's death, she expressed a wish that she knew what was the matter with him, and the boy told her of his fall. He said his failure to say anything about it before that time, was because his father had told him not to cause his mother alarm or worry, and he had not thought of the fall as having anything to do with the death. The employer must have been immediately notified because the employer's attorney was at the home the next day and talked to the widow about the death, but the boy said nothing about the fall for the reason already stated and because his father had always told him not to tell his mother of any untoward event happening to the father. (It seems, too, that the boy was not questioned at this time.)

After the burial and about three weeks after the death, the mother was grieving and "wondering what caused his death" and the boy then told her of his fall, this being the first time he had said anything to anybody about it. He said, in answer to questions about its occurrence, that his father was standing on the bed of the truck trying to "boom the pipe," i.e., hook a chain around it and pull it up tight, and it was raining and there was grease on the floor of the truck and the two made it slippery, and his father's foot slipped and he fell off the truck to the ground, striking, as he did so, the right side of his body against the truck. He sat up on the ground after a little while and then "scooted upon the fender and went to vomiting." After about five minutes on the fender he got into the cab and rode to the top of the hill. He complained of hurting in his back and rectum; looked as white as a piece of paper. He did not get up from the ground immediately but lay there "two or three minutes and then he scooted to the fender." He sat there about five minutes and then went to vomiting. When the young son left him about twenty minutes later he "looked sick" and said he "felt sick," and he was "pale looking." In coming back from Carrollton "he was vomiting; he had to stop five or six times after he came back from Carrollton." Before he fell he was apparently well, he "looked like he always did" and was "around there playing with the men." After he fell he was pale.

Doctor Lissack, who had practiced medicine for ten years, who had a good medical training and was County Coroner, saw the deceased's body about an hour after his death, and examined it to ascertain the cause of his death and whether he had come to his death by the criminal act of anyone, and satisfied himself that the deceased had not so come to his death. He did not know of the fall at that time. Considering the condition the doctor found him in and the facts related by the son, the fall might have, and could have, caused his death. The doctor testified that it is rather difficult to determine just what internal injuries will be caused by a body falling and lighting on its side from a height of five feet. He did not hold an autopsy because he knew nothing about the fall. Had he heard or known of that he would have held one. In answer to a hypothetical question embodying all the known facts, and his previous good health and his symptoms after the fall and his death thereafter, the doctor said the fall could have caused his death; that the fall could be the probable cause thereof, and that except for the fact of his fall, his death would have been unusual; but not so, if the fall and its surrounding circumstances, were known; and that, assuming Mr. Wall received an injury and died as related, then in his opinion as a medical man he would say that deceased's injury was the cause of his death. On cross-examination, the doctor testified that any shock or jolt of the body could weaken the tone of the heart muscles and cause immediate death, and would be likely to cause death three hours later through "coronary obstruction," internal hemorrhage producing some particle in the blood stream, which lodging in the smallest vessels would obstruct them. The deceased was a large fleshy man, and the doctor said: "I still maintain that the man died from coronary obstruction;" that he had seen more than one man fall in such way that three hours later he fell over dead; and that all of his answers were on the assumption that the deceased had a fall of the nature stated by the boy. He was finally asked on cross-examination, "Q. You mean to say this injury caused his death; is that what you are saying? A. Assuming the facts as I have heard them as the case has been going on, I would say yes."

Dr. George A. Kelling, who did not know the deceased, but who saw his body where it fell in the garage at Waverly, about an hour after his death, also said the death could be attributed to the injury; and that the objective symptoms of vomiting and turning pale are symptoms of an internal injury, and vomiting after an injury is a very serious symptom of a severe injury; that "coronary obstruction" could follow any injury no matter how remote.

The evidence of his widow was that her husband was forty-six. He had never been sick prior to the day of his death. He was well that day when he left home for his work. He had never lain off his work on account of sickness. He never had heart trouble that she knew of.

His other son Delbert said the father was in good health that morning, did not complain of any sickness in the morning of the day he died. The father came by the son's house between 5:30 and six o'clock, "whistled for me, and when I came down he was standing outside and was singing, and we went to the restaurant and ate breakfast and he was just as jolly as could be." Witness saw him about 8:30 again that morning, and he appeared well and was making no complaint of any kind. But about eleven or 11:30 he saw his father at Carrollton and as soon as he, witness, saw him, he looked "peculiar." "He looked pale, so I went to him and asked him what was the matter with him, and he said he had...