Opinion
No. 7019.
January 10, 1952.
Ray E. Watson, F. H. Richart, and Rex Titus, all of Joplin, for appellants.
Max Patten, Jr., and Roy Coyne, of Joplin, for respondents.
This is an appeal from a judgment of Division Two of the Circuit Court of Jasper County, Missouri, approving the final award of the Workmen's Compensation Commission of Missouri, to respondents (hereinafter called claimants), giving to Maggie Duff the sum of $19.00 per week for 300 weeks, or until the prior death or remarriage of such claimant; to claimant Peggy Ann Duff, minor child of Jess Duff, the sum of $2.63 per week for 300 weeks; but $19.00 per week for 300 weeks, in the event of the death or remarriage of claimant Maggie Duff; and a further award to Roy Coyne and Max Patten of 25% of the award for necessary legal services rendered claimants. The facts are stated as follows:
Jess Duff was found dead on December 12, 1949, in the basement of the building known as the property of appellant St. Louis Mining and Milling Company in Jasper County, and insured by appellant Bituminous Casualty Corporation.
Considerable speculation as to the cause of the death of Jess Duff was created because no one saw his fall. Maggie Duff was the wife of Jess Duff, and Peggy Ann was his minor child. Duff was employed by appellant St. Louis Mining and Milling Company, and the last known of said deceased he was oiling a part of the machinery of said mill. Several employes were at the time in another part of the mill, and, at least one of them, heard a noise like something thrown against the side thereof. Later, they found Jess Duff dead beneath the platform on which such employes were at work. Whether said Jess Duff fell, because of a fatal attack of heart disease, or was killed by his fall, was the real issue in the case.
The testimony of the employer and the insurer was that Duff had made considerable complaint that morning of pain in his arms and head, which may have been due to heart disease, and that he decided not to go to work, and so informed his wife, who went to work without preparing his lunch.
The testimony of claimant Maggie Duff was different altogether. She testified that the deceased was doing heavy work, around the house where they lived, the day before, and that she urged him to quit work at the mill, because of irregular employment there, and went to work herself, without fixing deceased's lunch box.
As we understand the argument and brief of claimants, they do not contend that such death was due entirely to accident; but urge that Duff's fall may have been partially due to disease, and that his subsequent death was due to the fall which probably aggravated the heart condition, if any. Claimant Maggie Duff even denied the bad condition of the heart of deceased. At least one timber was in the spot where the body of Duff was found, and he may have struck that as he fell. Blood was then issuing from his ears and mouth. Subsequent examination disclosed that his jaw was also broken. According to the testimony of Dr. Hurst, an examination of the body of deceased revealed that he was suffering from an advanced stage of heart disease. That was said to have been the sole cause of his death. The doctor was also Coroner of Jasper county. He certified that the death of Duff was caused by disease and not from the fall.
A claim was made by the widow and the minor child of deceased, and that claim was heard by Leonard E. Newton, the Referee of the Workmen's Compensation Commission, and he held on August 22, 1950, that the death of Duff was due to disease and not to accident; and denied the widow and minor child any award for such death.
The full Industrial or Workmen's Compensation Commission reviewed the testimony given before Referee Newton, and, one commissioner dissenting, reversed the finding of the referee and held that the death of Duff was due to accident and not to disease; and on December 18, 1950, made the following order and award:
"We find from all the evidence that the employee, Jess Duff, now deceased, sustained an accident on December 12, 1949, arising out of and in the course of his employment with the St. Louis Mining and Milling Corporation, resulting in his death on the same day; that said employee was found dead or injured in a hole approximately 14 feet below the runway between the rougher and the screen, a place where his duties required him to be and where he was last seen working.
"We further find that said employee left surviving him as total dependents his widow, Maggie Duff, and his minor daughter, Peggy Ann Duff.
"Reversing on review award of Referee dated August 22, 1950. This award corrects and supersedes the award of the Industrial Commission dated December 6, 1950."
No contention is made that the finding and award of the full Commission could not override the decision of the Referee. Indeed, the power of the full Commission to make its own allowance is provided for by Section 3730, RSMo 1939, RSMo 1949, § 287.470, V.A.M.S.
An appeal to the Circuit Court of Jasper County from the order and award of the full Commission was taken and such Circuit Court thereafter made the following judgment and order:
"Now at this day this cause comes on for hearing; the plaintiffs appear by Roy Coyne and Max Patten, their attorneys and the employer and insurer appear by Watson, Richart Titus, their attorneys, and the Court having heretofore heard the argument of counsel and taken this cause under advisement; being now well and fully advised in the premises, the Court finds that the award of the Industrial Commission of Missouri should be sustained.
"It is therefore ordered and adjudged by the Court that the award of the Industrial Commission of Missouri, entered on the 18th day of December, 1950, be and the same is hereby affirmed; that the plaintiff Maggie Duff have and recover of and from the St. Louis Mining and Milling Corporation, employer, and the Bituminous Casualty Corporation, insurer, the sum of $19.00 per week for a period of 300 weeks, or until her re-marriage or death; and that in the event of such re-marriage or death, such sums shall be due Peggy Duff; and that the said Maggie Duff, mother and natural guardian of Peggy Duff recover the further sum of $2.63 per week for a period of 300 weeks from said employer and insurer, and if not paid when due, let execution issue therefor.
"It is further ordered and adjudged by the Court that above awards are subject to the lien of Roy Coyne and Max Patten, attorneys for plaintiff, in an amount equal to 25% of the money award as above set out."
On March 15, 1951, an appeal was taken to this Court by the employer and the insurer. It was briefed and was argued orally on October 2, 1951, and is thus before us for decision.
All of the evidence in this case is the evidence heard by Referee Newton. The claimant widow there denied that deceased was suffering from heart disease. We are convinced that the referee relied heavily upon the testimony of Dr. Hurst, and was convinced thereby that the death of Jess Duff was due wholly to disease and not at all to accident.
We have carefully studied all the testimony before the referee. While Dr. Hurst undoubtedly was satisfied that the death of Duff was wholly due to disease and that he was dead when he struck the earth or gravel at the bottom of the mill, he admitted that deceased had a broken jaw and that he saw some blood about the eyes. The jaw might have been broken when deceased fell through the hole in the platform to the earth or gravel below and he was not very certain that the broken jaw of deceased might not have contributed to the death of deceased.
Appellants first cite Oswald v. Caradine Hat Co., Mo.App., 109 S.W.2d 893, loc. cit. 895, on the proposition that claimants failed to prove any injury of sufficient severity to cause death. However, that case holds that, when an employee is found dead at a place where his duties required him to be, "there is a natural presumption that he was injured in the course of and in consequence of his employment"; but that such presumption is rebuttable, "and must be given effect unless overcome by substantial evidence to the contrary. * * * So, also, where an employee suffers an injury immediately followed by death, a presumption arises that the injury was the cause of death. Of course, the nature of the injury, the condition of health of the employee, or the circumstances of the injury, may be such that the presumption does not arise. Such presumptions are not overcome by evidence that is merely conjectural; nor do they prevail in the light of evidence which renders the cause of the injury or death conjectural."
There is no question that deceased was employed at the mill nor is there any doubt that he was engaged in the duties of such employment at the time of his death. He probably fell to the basement of the mill from the place where he was working. His fall probably caused the noise against the wall of the mill. He was found dead where he was employed and the presumption of death by disease was upon his employer and insurer and not upon claimants. Whether or not such presumption was removed by the conjectural testimony of Dr. Hurst, was a question of fact. The case cited does not support the contention of appellants that the injury shown was not sufficient to cause death.
In Mershon v. Missouri Public Service Corporation, 359 Mo. 257, 221 S.W.2d 165, 167, Judge Clark of the Supreme Court, said: "The burden is on a claimant to show that an employee's injury resulted from an accident arising out of and in the course of his employment;" still, "when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment".
In Stamps v. Century Electric Co., 225 S.W.2d 493, 496, by the St. Louis Court of Appeals, the rule laid down in the Mershon and Oswald cases above, and previously discussed in this opinion, was recognized, and Judge Bennick there said: "Such a presumption is overcome by substantial contravening evidence on the part of the employer; and where the facts appear, the case is then to be decided upon the facts, having in mind all the while that it is not the employer's fundamental burden to show his freedom from liability, but that the burden is on the one seeking compensation to show that the injury or death was by accident arising out of and in the course of the employment."
We are unable to see where the citation of those cases aids appellants in the least. They have cited a large number of cases which we have examined; but we do not think it necessary to set them all out.
When Jess Duff was found dead at the place where he had a right to be in the furtherance of his employment, it was the duty of appellants to overcome the presumption that such death was the result of accident, rather than of disease. The question of the sufficiency of the evidence to overcome such presumption was a question of fact for the full commission and the trial court to determine. It was the duty of the full commission and of the trial court to say whether appellants had overcome that presumption. It is not for this Court to render an opinion upon such question of fact.
The judgment of the trial court must be approved and affirmed by us.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.