Appeal from Circuit Court, Ste. Genevieve County; I. N. Threlkeld, Judge.
"Not to be published in State Reports."
Proceedings under the Workmen's Compensation Act by John A. Weiler and wife to recover compensation for the death of their son Harry J. Weiler, employee, opposed by the Peerless White Lime Company, employer, and the Hartford Accident & Indemnity Company, insurer. From a judgment of the circuit court reversing an award of the Workmen's Compensation Commission which denied compensation, the employer and the insurer appeal.
Judgment reversed, and cause remanded, with directions.
SUTTON, Commissioner.
This is an action under the Missouri Workmen's Compensation Act (Rev. St. 1929, § 3299 et seq. [Mo. St. Ann. § 3299 et seq., p. 8229 et seq.]) brought before the Workmen's Compensation Commission for compensation for the death of Harry J. Weiler resulting from an injury alleged to have been sustained by him in an accident while in the employ of defendant Peerless White Lime Company at the company's plant in Ste. Genevieve, Mo. The action is brought by John A. Weiler and Cecelia J. Weiler, who are the parents of the employee. The defendant Peerless White Lime Company is insured against liability by defendant Hartford Accident & Indemnity Company. The accident is alleged to have occurred on March 25, 1931.
The commission disallowed plaintiffs' claim, whereupon plaintiffs appealed to the circuit court of Ste. Genevieve county. The circuit court reversed the award of the commission, and remanded the cause. From this
judgment of the circuit court defendants have appealed to this court.
The commission, upon making its final award, found and ruled as follows: "We find from the evidence that the employe, Harry J. Weiler, died on April 9, 1931, as a result of osteomyelitis to right leg above ankle; that the evidence is vague as to the osteomyelitis being the result of the alleged accident, and that there is not sufficient proof of an accident arising out of and in the course of the deceased's employment on March 25, 1931. The deceased may have injured his ankle elsewhere. The burden of proof is upon the claimant to show by competent evidence that the deceased sustained an accidental injury arising out of and in the course of his employment and an award cannot be based on conjecture and surmise. Claim denied."
Plaintiffs justify the action of the circuit court in reversing the award of the commission on the ground that there is not sufficient competent evidence in the record to support the award.
Plaintiffs claim that the employee suffered a sprained ankle from an accident which occurred some time in the forenoon on March 25, 1931, while he was engaged in running or operating an automobile dump truck for defendant lime company at its plant by stepping off the dump truck at the dumping place on some hard object, stone, or clinker, and that from this injury an infection set in, resulting in the death of the employee on April 9, 1931.
Plaintiff John A. Weiler, father of the employee, testified: "Harry Weiler was on March 25, 1931, in the employ of Peerless White Lime Company, and was working at the company's plant. He had been working there about six or seven months. He went to his work on March 25th, as he did on any working day, with Mr. Faneystock, an employe of the lime company. He went to his work in a car which was driven by Faneystock. They left in the morning about a quarter after six o'clock. I saw Harry on the morning of March 25th, at the breakfast table. I ate breakfast with him. About that time I had not observed anything about his foot or ankle as to whether it was well or not. We ate breakfast that morning about a quarter after five. I did not observe anything that morning about his ankle or foot. He had never had any trouble to my knowledge with his ankle or foot up to that time. I saw him again the same day about four o'clock. He came home with Mr. Faneystock. He was nineteen years old at the time, and lived with me on the farm at Zell, Missouri. When he came in the yard that afternoon about four o'clock, I saw he was limping. Later on I looked at his foot or ankle. I found swelling on his ankle. He was taken to the hospital on April 1st, and died there on April 9th. He did not work any more after March 25th. I saw he was limping the next morning. I think he went twice, or maybe three times, to the doctor's office, before he was taken to the hospital. It was the left ankle that he complained of. He never injured that left ankle before that I know of. I did not examine the boy's foot when he came home on the afternoon of March 25th. I examined the foot the next day when he came home from the doctor. I could not see whether there was any swelling. It was bandaged up. I could not see."
Plaintiff Cecelia J. Weiler, mother of the employee, testified: "I saw Harry on the morning of March 25th. I cooked his breakfast for him, and took breakfast with him. When he left that morning, I saw him going out to the car. I saw him leave. I did not notice anything about his condition. He was like usual. He was in good spirits like always. That evening I saw him come home. I saw him come down the road. I noticed that he limped some. That evening I looked at his foot, and his ankle was swollen a little. It was his left ankle."
Edgar A. Jokerst, produced as a witness by plaintiffs, testified: "I was working for the Peerless White Lime Company on March 25, 1931. I live about eight miles south of Ste. Genevieve and about a mile from where Harry Weiler lived with his father. On the morning of March 26th I came to work with George Faneystock and Harry Weiler. I first saw him that morning when he came in the car. I and Harry and Faneystock went to work from there for the Peerless White Lime Company. We began work that morning about seven o'clock. Harry started to run a dump truck. He hauled away waste lime and clinkers and rock that were burned, hauled it away from there to the dump. The dump was about three hundred yards away from the place where he loaded the truck. I was not on that dump truck that day before ten o'clock. I was on the dump truck from ten o'clock to dinner. Prior to ten o'clock I did all kinds of work around there — odds and ends. About ten o'clock the foreman told me to help Weiler. Then I helped him haul cinders out. The dump truck was a truck with a dump bed on it. When I helped him I helped him load it up. After it was loaded I went out with him to the dump. When we got to the dump, I pulled the lever that operated the dump. There were clinkers and cinders, rocks, and all kinds of stuff lying around there. When I went out with him, he was driving the truck. When we got out to the place where the waste matter was to be dumped, he stayed on there, backed up, and I got off and jerked that lever down and pulled the front lever and dumped it. I helped Harry work that day about an hour and a half. Harry and I then went up in the little shack and ate dinner. That was the end of our work for a little while. About a
quarter after twelve we had to do a little work. The foreman told us to do it. We worked about an hour and maybe a little longer after that. We handled draw a little; that is, we worked at drawing hot lime out of some kilns. When our day's work was done, we waited for Faneystock. We waited for him about an hour and a half. We were in the little shack while we were waiting. During the time I worked with Harry I did not see him have an accident. I saw him during the hour and a half we worked together. If he had been limping I would have noticed it. I did not notice him limping. When we were waiting for Faneystock in the little shack, Harry said to me, `Doggone my ankle hurts.' I said, `Where.' He said, `Right here, this ankle,' and he pointed to it where it hurt. Harry and I quit work about 1:30, and we then went together up to the shack. I did not see him limping at that time. We had to walk about one hundred steps to the shack. I was walking next to him. I did not notice him limping. That was about 1:30. This conversation I testified to occurred about two o'clock. We went home about 3:30. We went together with Mr. Faneystock. From 1:30 to 2 o'clock Harry fixed a fiat tire on the foreman's car. I do not think that was a company car. The foreman instructed him to fix the tire."
Dr. R. C. Lanning testified, on behalf of plaintiffs, as follows: "Harry Weiler called at my office on March 26, 1931. He came in complaining of a sprained ankle, or a sore ankle. I examined his ankle and found a slight amount of swelling in his left ankle, particularly on the medial side. I put a tight bandage on it, and told him to go home and go to bed. I saw him again on the following day. I was called out to his home. He was complaining a great deal of pain. The pain was so severe he could not come to my office. I examined his foot and put a bandage on it and kept him in bed. There was no apparent reason to do anything else. Three days later we had him taken to town, and had an X-ray made. The X-ray was negative. I put the ankle in a plaster cast and sent him home. That was on March 30th. On April 1st, I went out to his house and took the cast off. The swelling was gone at that time, but he was complaining of much more pain and was...
