182 S.W.2d 560 | Mo. | 1944
This is a proceeding under the Workmen's Compensation Act. Respondents, widow and minor children of Clyde King (who died of the industrial disease of silicosis), were given an award in excess of $7500.00 by the Commission. The insurer, Liberty Mutual Insurance Company (hereinafter [561] referred to as appellant) appeals from the judgment of affirmance in the Circuit Court.
King had worked as a sandblaster, with more or less exposure to silica dust almost continuously from June 27, 1929 to April 4, 1942. (He was off for two weeks from illness in December 1941.) He died June 3, 1942. The respective insurers issued Standard Workmen's Compensation policies of insurance covering the following dates; Traveler's Insurance Company, August 1, 1930 to July 31, 1939; Traveler's Indemnity Company, August 1, 1939 to July 31, 1940; Liberty Mutual Insurance Company, August 1, 1940 to July 31, 1942. All of these policies covered the entire liability of the employer which might arise by virtue of the Workmen's Compensation Law.
Appellant's contentions are that "there is not sufficient competent evidence in the record to support the hypothesis that the disease of *403
silicosis was contracted, aggravated or accelerated by exposure to harmful quantities of silica during the period of coverage of appellant;" and that "in arbitrarily fixing sole liability on the last insurer because disability and death occurred during its period of coverage and in the face of evidence showing conclusively that the disease had been contracted several years before, the Commission undertook to determine a judicial question of insurance coverage, and it acted without and in excess of its powers." Appellant further contends that even if the Commission in this case should have found sufficient evidence to show an exposure to silicosis during the period of its coverage, still it had no legal authority to assess the entire liability against that company, but should have held all insurers liable on the theory that exposure to the disease had continued through the coverage period of the several insurers. [Citing Plecity v. McLachlan Hat Company (Conn.),
We find that there was substantial evidence, offered by respondents, to show that King was in good health until the latter part of 1941; that he played baseball and engaged in other activities requiring considerable exertion without showing such symptoms of silicosis as shortness of breath, coughing, dizziness or fatigue; that a change in the methods used in respondents' work in June 1941 resulted in more fine dust than before; that he lost no time from work from illness before December 1941; and that he could have contracted the disease during the period of appellant's policy, or at least that the work done during that period was an important directly contributing cause. Appellant offered substantial evidence to show that the change in the methods of King's work, in June 1941, greatly lessened the exposure to silica dust; that the type of protective helmet used by King in the early years of his work, prior to the period of appellant's policy, was not as efficient as the one then in use; and that the condition of his lungs which brought on the disease must have been far advanced prior to the time appellant carried the risk. Respondents contend, however, that regardless of when the disease began "the great preponderance of judicial opinion supports the rule that in compensation cases, based upon occupational disease, liability accrues and attaches to the employer and insurer as of the date of the employe's disability." We think this view is the sound and proper construction of our Workmen's Compensation Act.
This is the construction made of our Act by the St. Louis Court of Appeals in Renfro v. Pittsburgh Plate Glass Co.,
In Wisconsin, the rule has been stated thus: "The `time of accident', within the meaning of the statute in occupational disease cases, should be the time when disability first occurs; that the employer in whose employment the injured workman is and the insurance carrier at that time are liable for the total consequences due thereto." [Zurich General Accident Liability Ins. Co. v. Industrial Commission,
We approve and adopt the reasoning of the Textileather case, which we hold is applicable to the provisions of our own Act and the proper construction thereof, as follows: "It is a well-known fact that industrial diseases are gradual in development — the first and early steps are not always perceptible. The rate of progress may vary. Sometimes a patient makes a complete recovery; sometimes it is only an apparent one. Sometimes the disease is quiescent and latent; sometimes the fatal course is swift. Medical science cannot always detect and describe the progress of disease. Employees exposed to occupational diseases frequently work for different employers. It is unthinkable that the Legislature should have contemplated that in such instance the recovery of compensation should be defeated. . . . The disability from occupational disease, for which compensation is payable, must necessarily occur when the employee is incapacitated for work. Any other view would make every other provision of the Act, and particularly those respecting the time within which the employer must have knowledge of the disease, an absolute nullity. . . . There is no more reason to search for the time when the poisoning first occurred than to search for the second, or third, or fourth exposure. It is disability after exposure in the employer's business that creates the obligation to compensation. . . . The employer's liability was fixed as of that time and so also the insurance carrier's obligation was assumed as of that date."
The judgment is affirmed. All concur.