Wheaton v. Reiser Co.
| Decision Date | 05 June 1967 |
| Docket Number | No. 24652,24652 |
| Citation | 419 S.W.2d 497 |
| Parties | Beulah WHEATON, Appellant, v. The REISER COMPANY and the Travelers Insurance Company, Respondents. |
| Court | Missouri Court of Appeals |
Robert J. Mann, James L. Williams, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for appellant.
Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for respondents.
This is an appeal of a workmen's compensation claim initiated by appellant as the widow and sole dependent of William Albert Wheaton, the deceased workman. The referee allowed death benefits including burial expenses, but on appeal to the Industrial Commission, benefits were denied in an award agreed to by two commissioners, Commissioner Cates dissenting. On appeal to the Circuit Court of Jackson County, Missouri, the award of the Industrial Commission was affirmed, and claimant has duly appealed to this court.
Deceased was a painter employed by the Reiser Company and worked full time in and around the Muehlebach Hotel in Kansas City, Missouri. ON the date of his death, October 7, 1963, he was working in the lobby of the hotel removing varnish from the lower five feet of large square wooden pillars. He would paint varnish remover on the pillar, and after allowing time for it to soften the varnish, would scrape the varnish from the pillar, putting the scrapings in a tin can and would sand the rough places. He had been occupied at this task since morning and in the afternoon he was observed by the bell captain to fall against the pillar on which he was working. He clutched at the pillar and fell to the floor all in one motion. He first fell on his buttocks and then over on his back striking the back of his head on the marble (or tile) floor. He did not move after he fell and appeared to be unconscious. An ambulance was called and deceased was taken to a hospital, where he was pronounced dead on arrival. Although the witness was looking at deceased at the time he fell, the witness did not see him slip or stumble, and he positively testified that deceased did not trip over the rug which was on the floor near the spot where deceased fell. The witness did not pay particular attention to the floor, but did not see any object which might have caused deceased to fall and did not observe that the floor was slick. The witness looked at deceased after he fell and did not see any lacerations or bruises, although he did observe a spot of blood about the size of a quarter on the floor after deceased was moved, which was at the place where deceased's head had rested.
An autopsy was performed by a deputy coroner of Jackson County, Missouri. He testified that the heart was normal in size and that there was a moderate amount of sclerosing of the aorta and of the coronary vessels. He found no evidence of an occlusion of the coronary vessels and there was no evidence of scarring of the heart muscle itself. There was a fracture of the fifth and sixth ribs just to the right of the sternum. A massive subdural hemorrhage was discovered over the right cerebral hemisphere, which in the doctor's opinion was the cause of death. In answer to a hypothetical question the doctor testified that in his opinion, based upon reasonable medical certainty, the death was caused by cerebral hemorrhage due to trauma to the head. The doctor observed a laceration on the left side of the scalp. He did not find any 'scarring or bruising or swelling or edema on the right side of his head.' He was not specifically asked whether or not there were any lacerations, bruises, etc. on the back of his head. On cross-examination, the doctor denied that spontaneous subdural hemorrhage is quite common. He stated that in his fifteen years of performing postmortem examinations, he had never encountered a spontaneous subdural hemorrhage; all that he encountered were due to trauma, and such hemorrhages were not common in the absence of trauma. He stated that the hemorrhage in this case was caused by some trauma to the right side of the head. He did not know what caused deceased to fall to the floor.
He testified in response to leading questions on cross-examination that coronary insufficiency 'can' cause fainting or blackout spells; that this 'possibly' could have caused deceased's fall, if he was exerting himself more than usual or 'possibly' if deceased's medicine had worn off.
The doctor did not determine which blood vessel had ruptured to cause the hemorrhage in deceased's head, and he testified that such hemorrhages were frequently slow in developing, but that the speed with which they develop depends upon the size of the blood vessel that ruptures. He admitted that 'it was possible' that the hemorrhage here in question had existed for some time and developed slowly; that it was 'possible' that the hemorrhage preexisted the fall; and agreed that such possibility was 'as possible as the other conclusions in the case.'
The doctor testified that there were no aneurisms in deceased's brain. He specifically testified that deceased's hemorrhage was caused by trauma, but he was unable to say how long it had existed and that it was 'possible' that the hemorrhage could have existed prior to the fall and have been the cause of the fall.
Dr. Williams testified that he had removed deceased's gall bladder in 1962 and that deceased recovered satisfactorily from the operation. Prior to the operation, Dr. Wright was called in and diagnosed deceased's complaints of chest pains as being coronary insufficiency. He prescribed medication and diet and considered deceased to be 'a satisfactory therapeutic result.' He testified that he could not say that deceased's condition could cause a blood vessel in the brain to rupture. There was some x-ray evidence of heart enlargement and Dr. Wright explained that there might be variations in the size of the heart appearing on various x-rays because sometimes the x-ray would catch the heart fully expanded and sometimes contracted. He further testified that preparation of a dead body might cause some shrinkage of the heart.
On the basis of the foregoing evidence the commission found that there was sufficient evidence, and inferences therefrom, to show how deceased's injury occurred and that, therefore, the presumption which arises when an employee is found dead, or injured, at a place where his employment required him to be, went out of the case. They concluded 'that the fall with which we are here concerned was idiopathic in that it arose from an unknown or obscure cause.' The commission then decided, on the authority of Howard v. Ford Motor Company, Mo.App., 363 S.W.2d 61, that such idiopathic fall was not compensable and that, therefore, claimant could not recover.
In order for claimant to recover she must show that death resulted from an accident arising out of and in the course of employment. Section 287.120 RSMo, 1959, V.A.M.S. There is no question that the accident, i.e., the fall, occurred 'in the course of' employment. However, the difficulty arises in determining whether or not the accident arose 'out of' the employment. In order to recover, claimant must show a causal connection between the employment and the fall and that the fall caused the hemorrhage which caused deceased's death.
It is not every injury occurring while claimant is at work which is compensable. Only such injuries which arise 'out of' employment are compensable. Before it can be held that an injury (or death resulting therefrom) arose 'out of' the employment a causal connection between the employment and the accident and injury must be found. See Liebman v. Colonial Baking Company, Mo.App., 391 S.W.2d 948, where this requirement is set out: See also Kelley v. Sohio Chemical Company, Mo., 392 S.W.2d 255.
To carry her burden of showing such causal connection between deceased's employment and his fall, claimant relies on the presumption that a workman was injured in the course of and in consequence of his employment when he is found injured or dead at a place where the performance of the duties of his employment required him to be. This presumption has been asserted and discussed in such cases as Duff v. St. Louis Mining and Milling Corp., 363 Mo. 944, 255 S.W.2d 792; Oswald v. Caradine Hat Co., Mo.App., 109 S.W.2d 893; Stamps v. Century Electric Co., Mo.App., 225 S.W.2d 493; McClelland v. Hagerty Wrecking Co., Mo.App., 384 S.W.2d 93. In Mershon v. Missouri Public Service Corporation, 359 Mo. 257, 221 S.W.2d 165, the holdings of numerous cases concerning this presumption are summarized as follows: 'Without reviewing those cases separately, we make the following general observations: Some, or all of them,...
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