Morgan v. Duncan
| Citation | 236 S.W.2d 281,361 Mo. 683 |
| Decision Date | 08 January 1951 |
| Docket Number | No. 41960,No. 1,41960,1 |
| Parties | MORGAN v. DUNCAN et al |
| Court | United States State Supreme Court of Missouri |
Nelson E. Johnson, Kansas City, for appellant.
Clyde J. Linde, Billy S. Sparks, Kansas City, Barney Patton, St. Joseph (Langworthy, Matz & Linde, Kansas City, of counsel), for respondents John F. Duncan and Employers Casualty Co., a corp.
VAN OSDOL, Commissioner.
Appeal from a judgment and decree of the trial court in favor of defendants and against the plaintiff on Count I of plaintiff's petition seeking to set aside an order of the Workmen's Compensation Commission approving a final settlement. See Section 3723 R.S.1939, Mo.R.S.A. Sec. 3723. In Count I plaintiff alleged that defendants falsely and fraudulently or mistakenly represented to her that she had no claim or cause of action at common law on account of injuries sustained when plaintiff, who was employed as a hotel clerk, stepped into the car of an elevator serving the Washington Hotel in Kansas City; that the Workmen's Compensation Commission had jurisdiction of the subject matter of her claim; and that, by such representations upon which plaintiff relied, plaintiff was induced to accept the settlement under the Workmen's Compensation Law. The second count of plaintiff's petition prayed for $75,000 damages for personal injuries allegedly due to carelessness and negligence of the defendants in the operation of the elevator car.
It is asserted by plaintiff-appellant that her injuries were not compensable under the Workmen's Compensation Law, but nevertheless she was deceived by defendants' agent into believing her injuries were compensable, and that she had no claim because of action at common law. She, in effect, urges that, under the facts and in the circumstances, her injuries did not arise 'out of and in the course of' her employment, Section 3691, R.S.1939, Mo.R.S.A. Sec. 3691, and that her injuries consequently were not compensable under the Workmen's Compensation Law; that the settlement under the Workmen's Compensation Law was induced by mistake or fraud; and that she is entitled to proceed in pursuing her remedy upon her claim as stated in the second count of her petition.
The courts of this and other states have often found it necessary to construe the phrase 'arising out of and in the course of his employment,' but it has been said no all-embracing definition has yet been framed. Every case involving the phrase should be decided upon its own particular facts and circumstances and not by reference to some formula. Wamhoff v. Wagner Electric Corp., 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601. But it has been quite uniformly held that an injury arises 'out of' the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury, Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; and that an injury arises 'in the course of' the employment when it occurs within the period of the employment at a place where the employee may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto. Wahlig v. Krenning-Schlapp Grocer Co., supra; Phillips v. Air Reduction Sales Co., 337 Mo. 587, 85 S.W.2d 551, and other cases therein cited; Sanderson v. Producers Commission Ass'n, 360 Mo. ----, 229 S.W.2d 563.
Furthermore, while no Missouri case has been cited in support of the text, it has been written, 58 Am.Jur., Workmen's Compensation, Sec. 229, p. 736. See cases annotated in 31 A.L.R. 1251, 56 A.L.R. 512, and 158 A.L.R. 606.
It may thus be seen that in the circumstances of some cases, where the ultimate question of compensability under the Workmen's Compensation Law is presented, a supporting issue as to the requirement of the employee's residence may be determinative.
Plaintiff, Greta B. Morgan, 52 years old, the wife of Russell K. Morgan, lived with her husband in an apartment in the Washington Hotel building in Kansas City. Plaintiff is a high school graduate, and attended college two years. She has done stenographic work in two banks of Kansas City; and worked ten or twelve years as secretary to her father, an expert in air conditioning and cold storage. The husband is a railroad employee, a switchman. Plaintiff and her husband had occupied the hotel apartment since 1942. The apartment was on the third floor of the hotel building.
There was evidence tending to show that defendant John F. Duncan, doing business as John F. Duncan Company, was operating the hotel as agent of the owner or owners and generally supervised the operation of the hotel. He appeared daily in the morning and received the receipts of the previous day's operations. But a Mrs. Hilton (now deceased) was manager of the hotel and had the immediate supervision of the employees. The staff of the hotel included Mrs. Hilton, manager; and a housekeeper, clerks and other employees.
Defendant John F. Duncan testified that he had nothing to do with the personal direction of the employees, but policy making was his responsibility; that certain employees in the hotel including the day clerk were, according to policy, required to live on the premises; and that the position of clerk with residence in the hotel contemplated that the clerk was to 'be subject to call any hour of the day and in emergency.'
June 2, 1944, Mrs. Hilton employed plaintiff as a clerk. Plaintiff's regular hours were 9:00 to 11:30 a. m., 1:30 to 4:00 and 6:00 to 8:00 p. m. Plaintiff testified she was not 'subject to call' thereafter. Her duties consisted of taking in cash, renting rooms, giving receipts for cash collected, and entering the amounts in the guest book. Plaintiff received a monthly salary and she and her husband continued the occupancy of their apartment; but their use of the apartment, after plaintiff's employment, was 'rent free.' Plaintiff and husband did light housekeeping in their apartment.
The evening of August 1, 1944, the night clerk, George Eastman (now deceased), came to relieve plaintiff at 7:45. The night clerk counted the cash, and plaintiff 'was gone at 7:50.' Plaintiff went to her room and lay down and rested for fifteen minutes, and then started to go to the grocery store. She rang for the elevator car and attempted to get on, but, before plaintiff 'got both feet on,' the operator 'started the elevator up.' Plaintiff was thrown to the floor and, instead of lowering the car and releasing plaintiff, the elevator operator kept pulling the car up. Plaintiff was gravely injured.
R. F. Coomer, an attorney, agent of defendant John F. Duncan and of defendant insurer, testified that he had told plaintiff he was of the opinion her injuries were compensable under the Workmen's Compensation Law. This, according to the testimony of Coomer, was based upon an investigation that he had made and his recollection that plaintiff had told him, 'I am required to live on the premises in order to hold this job.' Plaintiff denied she had made any such statement to Coomer, and she denied that, under her contract of employment, she was required to live in the hotel.
It has been held that a final settlement, approved by the Commission as provided in Section 3723, supra, is irrevocable and conclusive, and the order of approval is not reviewable. Any relief against the approved settlement can be had only in a court of equity upon proof of fraud or mistake. Wors v. Tarlton, 234 Mo.App. 1173, 95 S.W.2d 1199, writ of certiorari quashed in State ex rel. Wors v. Hostetter,...
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