Zimmerman v. Goodfellow Lumber Co.

• Decision Date: 07 February 1933
• Docket Number: No. 22313.,22313.
• Parties: ZIMMERMAN v. GOODFELLOW LUMBER CO. et al.
• Court: Missouri Court of Appeals

56 S.W.2d 608

ZIMMERMAN v. GOODFELLOW LUMBER CO. et al.

No. 22313.

St. Louis Court of Appeals. Missouri.

February 7, 1933.

Rehearing Denied February 21, 1933.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Law by Flora E. Zimmerman, claimant, for the death of her husband, Urban L. Zimmerman, employee, opposed by the Goodfellow Lumber Company, employer, and the Fidelity & Casualty Company of New York, insurance carrier. The commission awarded claimant compensation, and, from a judgment affirming the award, the employer and insurance carrier appeal.

Affirmed.

George A. Hodgman and Albert E. Cunliff, both of St. Louis, for appellants.

Joseph J. Cooney, of St. Louis, for respondent.

SUTTON, C.

This action is brought by plaintiff, Flora E. Zimmerman, under the Workmen's Compensation Act (Rev. St. 1929, § 3299 et seq.; Mo. St. Ann. § 3299 et seq.) to recover compensation for the death of her husband, Urban L. Zimmerman, an employee of defendant Goodfellow Lumber Company, who is insured by defendant Fidelity & Casualty Company of New York.

The commission awarded plaintiff compensation. From the judgment of the circuit court affirming the award of the commission, the defendants have appealed to this court.

Defendants ask for a reversal of the judgment, on the ground that the evidence wholly fails to show that Zimmerman's death resulted from an accidental injury arising out of and in the course of his employment. The accident, which it is claimed caused Zimmerman's death, occurred on Saturday, October 18, 1930. He died November 9, 1930. Zimmerman had been employed by the Goodfellow Lumber Company for four years. His duties consisted of loading, delivering, and unloading lumber.

Plaintiff testified that her husband's general health was good prior to October 18, 1930; that he went to his work that morning about 6:30 o'clock; that she had an opportunity to observe his right index finger that morning while he was eating breakfast, and that it was all right; that he handled his knife and fork all right; that the next time she saw him was about 7 o'clock in the evening when she returned home from her work; that she did not know what time he arrived home that evening; that she observed him when she first came into the house; that he was lying down in the bedroom; that he called her attention to his right index finger right away after she got into the house; that the finger was swollen and red; that it looked like there was something in the finger alongside of the nail; that she got a needle and sterilized it, and picked a splinter out of the finger; that she bathed the finger in warm water and painted it with iodine; that that was around 7 o'clock in the evening immediately after she arrived home; that he had no duties about the house; that they did not have stoves up at that time; that they burned gas, and there was no occasion for him to be handling wood about the house; that he complained about the finger that evening; that he complained about the finger the next day, which was Sunday; that he said it hurt him; that he did not complain of any other parts of his body, just complained of the index finger; that she removed the splinter from the index finger right at the side of the nail, between the nail and the left side of the finger; that he returned to work Monday, and worked Monday, Tuesday, and Wednesday; that on Tuesday night he had a lump on his right arm about as big as a half dollar; that he called her attention to the lump, and that she took iodine and painted it to take the soreness out; that on Wednesday night he complained of the arm hurting him, and said he felt chilly like he was having chills; that on Thursday morning he complained of feeling bad like he had chills and fever; that on Thursday evening when she returned home he was in bed; that he had high fever and was sweating; that he remained in bed Friday, Saturday, Sunday, and Monday; that on Monday evening she called Dr. Grosskreutz; that Dr. Grosskreutz called that evening and treated him; that he remained under the care of Dr. Grosskreutz until Thursday evening when Dr. Grosskreutz called in Dr. Falk; that during this period of time her husband had a very high fever and chills and was sweating; that Dr. Falk made a thorough examination; that he examined him all over and made an examination of the finger; that he left some medicine for her to treat his finger with; that he remained under Dr. Falk's care until he died; that he was taken to the hospital on Friday morning, October 31st, under Dr. Falk's orders; that he remained in the hospital ten days before he died; that during that time he was under the care of Dr. Grosskreutz and Dr. Falk.

Zimmerman's statement to plaintiff as to how he got the splinter in his finger was excluded by the commission as hearsay.

Leo Hinton testified, for plaintiff: That he had been in the employ of the Goodfellow Lumber Company for about nine years; that Zimmerman was working in the same employment with him, and doing the same kind of work; that his work consisted in loading the lumber in the yards and making delivery and unloading the lumber at its destination; that about 1,000 feet of lumber, consisting of about 80 to 90 pieces, constituted a load; that he usually loaded and unloaded the lumber without help; that in handling the lumber it was usual for him to get splinters in his hands; that that happened every now and then; that in this line of work, getting splinters in the fingers is usually considered a trivial matter; that when he got a splinter in his finger he would usually pick it out, and then forget about it; that this would happen quite frequently—four or five times a month; that he knew Zimmerman two or three years; that he was a...