Wills v. Berberich's Delivery Co.

• Decision Date: 14 December 1939
• Docket Number: 36518
• Citation: 134 S.W.2d 125,345 Mo. 616
• Parties: Florence Wills et al. v. Berberich's Delivery Co. et al., Appellants
• Court: Missouri Supreme Court

134 S.W.2d 125

345 Mo. 616

Florence Wills et al. v. Berberich's Delivery Co. et al., Appellants

No. 36518

Supreme Court of Missouri

December 14, 1939

Appeal from Circuit Court of City of St. Louis; Hon. John W Joynt, Judge.

Affirmed.

Leahy Walther, Hecker & Ely for appellants.

(1) There is no substantial, competent evidence in the record to support the award of the deceased, which was based on a finding that deceased's death was attributable to an accidental injury arising out of and in the course of deceased's employment. (2) There was no evidence in the record that deceased struck his chin, or that the infection on his chin at the time of the fall was caused to spread by trauma, either direct or indirect. (3) The court erred in permitting Drs. Siebert and Diehr to answer hypothetical questions propounded by claimants, and admitted incompetent testimony. De Donato v. Wells, 328 Mo. 457; Seelig v. M., K. & T. Ry. Co., 287 Mo. 364; Root v. Kansas City So. Ry. Co., 195 Mo. 377; Powell v Union Pac. Railroad, 255 Mo. 447. (4) An award of compensation can be sustained only upon the presentation of substantial competent evidence, and such award cannot be based upon speculation or conjecture. Freese v. St. Louis Pub. Serv. Co., 58 S.W.2d 760; Jackson v. Aetna Brick Laying Co., 59 S.W.2d 708; Stapleton v. Sun, 69 S.W.2d 1104; Doughton v. Marland Refining Co., 331 Mo. 291; Gillick v. Fruin-Colnon Const. Co., 334 Mo. 144; Miller v. Ralston Purina Co., 109 S.W.2d 866; De Moss v. Evens & Howard Fire Brick Co., 225 Mo.App. 473; Weiler v. Peerless White Lime Co., 64 S.W.2d 125. (5) The burden is on claimant to prove, by the preponderance of the evidence, the deceased's death was the result of accident and that it arose out of and in the course of his employment. Weiler v. Peerless White Lime Co., 64 S.W.2d 125; Duggan v. Toombs Fdy. Co., 66 S.W.2d 978; Muntun v. Driemeyer Storage Co., 223 Mo.App. 1131; Doughton v. Marland Refining Co., 331 Mo. 291; Delile v. Holton, 334 Mo. 464. (6) To support a finding and award that the spread of infection from the preexisting boil on deceased's chin into his blood stream, with resulant septicemia, it was necessary to pile inference upon inference. Presumption cannot be piled upon presumption to support a finding of fact. Cardinale v. Kemp, 309 Mo. 276; Hays v. Hogan, 273 Mo. 25; Weber v. Valier Spies Milling Co., 242 S.W. 985. (7) Assuming that evidence raised a presumption of trauma to deceased's boil, such presumption could not stand in the face of affirmative evidence to the contrary. Presumption vanishes upon the appearance of affirmative evidence. Mockowik v. Railroad Co., 571; Rodan v. St. Louis Transit Co., 207 Mo. 409; George v. Pac. Railroad Co., 213 Mo.App. 674; Brown v. Brown, 237 Mo. 668; Rashall v. Railroad Co., 249 Mo. 522; Wright v. United Commercial Travelers, 188 Mo.App. 464; Pennsylvania Railroad v. Chamberlain, 228 U.S. 339. (8) Where death resulted from one or the other of two causes, for one of which but not the other the employer and insurer would be liable, there can be no recovery. Doughton v. Marland Refining Co., 331 Mo. 291; Wright v. United Commercial Travelers, 188 Mo.App. 463; Weber v. Valier Spies Milling Co., 242 S.W. 989.

Edw. C. Friedewald for respondent.

(1) The findings and award of the Compensation Commission that the deceased came to his death as the result of the accident of May 27, 1933, and that the accident aggravated a preexisting condition on employee's face causing the spread of infection and death, is a finding of fact, amply supported by substantial and competent evidence, and such finding is conclusive and binding on all reviewing courts. Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Shroyer v. Mo. Live Stock Comm., Co., 61 S.W.2d 713, 332 Mo. 1219; Crutcher v. Curtiss-Robertson Airplane Co., 52 S.W.2d 1019, 331 Mo. 169; Adams v. Continental Life Ins. Co., 101 S.W.2d 75. (2) The Commission had the right to take into consideration, from the existing facts, the health of deceased and the condition of his face before the accident that morning when he left home for work, the facts concerning the fall which the deceased admittedly suffered while at work, and the apparent injury to his face and other parts of his body when he returned home immediately following the accident, to conclude if they saw fit to do so, that the deceased had suffered injury to his face in the fall. Wills v. Berberich's Delivery Co., 98 S.W.2d 569; Hill v. Edward Guth Co., 35 S.W.2d 824; Zimmerman v. Goodfellow Lbr. Co., 56 S.W.2d 608. (3) Admission of incompetent testimony does not justify setting aside an award of the Compensation Commission. Woods v. American Coal & Ice Co., 25 S.W.2d 144. (4) The Compensation Commission does not sustain demurrers to complainant's evidence and may look to the whole testimony for its findings and award. So that the evidence of both parties is taken into consideration to determine whether there is sufficient competent evidence to support its award and findings. The decisive question before the reviewing court is whether or not there was sufficient competent evidence to warrant the making of the award. Doughton v. Marland Refining Co., 53 S.W.2d 236. (5) In determining the sufficiency of the evidence to sustain the Commission's findings, the appellate court will look to the evidence which is most favorable, adding thereto all reasonable inferences of fact to be drawn therefrom to support such finding, and will disregard all opposing evidence. Rutherford v. Tobin Quarries, 82 S.W.2d 918; Adams v. Continental Life Ins. Co., 101 S.W.2d 75. (6) There is no limit to the number of inferences which may be drawn in a given case, provided each rests upon and reasonably arises from facts and circumstances shown by evidence. Rose v. Mo. District Tel. Co., 328 Mo. 1009, 43 S.W.2d 562; Morris v. Dupont-DeNemours Co., 109 S.W.2d 1222.

OPINION

Ellison, P.J.

The employer and its insurance carrier appeal from an award of $ 8150 to the dependents of a deceased employee, Arthur N. Wills, made by the Workmen's Compensation Commission and affirmed by the Circuit Court of the City of St. Louis. The error assigned is that there was no substantial evidence to support the award: because respondent failed to show Wills' death was the result of an accidental injury arising out of and in the course of his employment; and the evidence upon which the Commission made the award was incompetent and should not have been admitted. The case has been here once before, 339 Mo. 856, 98 S.W.2d 569. It was reversed and remanded because the Commission had excluded competent evidence.

On Saturday May 27, 1933, while repairing the top of one of the employer's delivery trucks Wills fell to the concrete floor of the garage, a distance of ten or twelve feet, and sustained certain injuries which will be detailed later. For some four days prior to that he had had a boil or pimple on his chin about one-half inch to the left of the midline and equi-distance between the lip and the lower part of the jaw. It had given him no trouble and he had covered it with a gauze pad secured by adhesive tape, commercially known as Band-Aid. According to the testimony of Dr. Bardenheier, physician regularly retained by appellants, Wills first complained to him about the boil on Monday, May 29, two days after his fall. At that time it was about the size of a dime. The next day it had increased to the size of a quarter. On Wednesday afternoon, May 31, it was as big as a silver dollar. That night the patient suffered pleuritic pains in the right lower chest. On Thursday, June 1, the boil was much larger and involved the gland beneath the jaw. From then on until Saturday June 3, the infection spread, the patient became extremely toxic, and died at 8 o'clock that night, just a week after his fall. It is conceded by the parties that death was caused by septicema originating in the boil. The only question in the case is whether the fall and the effects thereof aggravated the infection, made it spread, and thereby was an efficient contributing cause of death.

In falling from the top of the truck Wills struck his left elbow on the tail-gate, which was partly open, and his left shoulder on the concrete floor. No witness saw him fall, but he so declared in a written statement given to John P. Dockery, claim agent for the insurer, which all parties to the litigation accept as true. There is no other evidence as to his posture when he landed on the floor save that to be gleaned from the location and character of his injuries.

He was taken to Dr. Bardenheier's office and thence to his home within a half-hour or so after the accident. The doctor found no injury to any part of his body except a contusion of the left shoulder and an abrasion of the left elbow. He complained of pain only in those regions. There were no marks or scratches on his face. Dr. Bardenheier testified he noticed the gauze patch on Wills' chin and therefore asked him if he had struck his cheek or any part of his face when he fell. Wills answered in the negative and stated the boil was not involved in the accident. For that reason the doctor did not examine it that day or the next day, but only after Wills requested him to do so two days later on May 29. Wills' written statement to claim agent Dockery also disclaimed any injury to his chin in the fall, and he made the same statement orally. Dockery saw no bruises, contusions or scratches on his face. Witnesses Metz, Cashel and Lessing, all fellow employees saw Wills shortly after he fell, and none of them noticed any scratches on his face. Dr. Morfit was called into consultation on Saturday, June 3, the day Wills died and discovered no evidence of external injury in the infected area.

On the other...