Arnold v. Wigdor Furniture Co.
| Decision Date | 12 September 1955 |
| Docket Number | No. 1,No. 44541,44541,1 |
| Citation | 281 S.W.2d 789 |
| Parties | Beatrice ARNOLD, Appellant, v. WIGDOR FURNITURE COMPANY, a Corporation, and Great American Indemnity Company, Respondents |
| Court | Missouri Supreme Court |
Joslyn & Joslyn, Charleston, for appellant.
Blanton & Blanton, Sikeston, for respondents.
COIL, Commissioner.
This is a Workmen's Compensation case. Appellant, claimant below, is the widow of Charles Arnold who, when 19 years old, was killed while employed by respondent Wigdor Furniture Company, a corporation. Respondent Great American Indemnity Company is the insurance carrier. The referee made an award of $9,350 to claimant for the benefit of herself and minor daughter. The Industrial Commission reversed and entered its final award denying compensation which was in part: * * *' The circuit court affirmed that finding and order. Claimant has appealed from that judgment.
Charles Arnold was employed by respondent Wigdor Company as the driver of a truck by which he delivered propane gas to the bulk tanks of employer's customers, who were located both in towns and in the country, He worked from 8 a. m. to 6 p. m. and was subject to call for after hours deliveries, some of which he made during the nighttime. Most of the customers were on a charge basis but as many as four paid cash which Arnold collected and turned in the his employer either the day of, or the day following, the delivery. The cash price for a capacity load of propane was $104; however, it was to be reasonably inferred from employer's evidence that the amounts of cash handled by Arnold for his employer at any one time were less than $100 and that the collections by Arnold were infrequent.
Arnold, on his own initiative and without the direction, knowledge, consent or acquiescence of his employer, had placed a single-barrel shotgun on the right side of the cab floor with barrel pointed toward the cab floor with the barrel pointed toward carried by Arnold for several weeks preceding the accident. None of employer's other truck drivers carried guns and employer had no collection policy which required employees to carry firearms, but there was no evidence that employer had prohibited the carrying of firearms by its truck drivers for protective purposes or that employer had made known to its employees any company policy with respect to the matter. There was no direct evidence of any other purpose for the presence of the gun than for protection. there was no evidence that deceased had been threatened or pursued or held up at any time, or that his deliveries took him into any notoriously dangerous areas.
On January 26, 1953, the truck was at employer's bulk storage plant and loading dock. Apparently the storage tanks were empty and Arnold and another employee were to fill some cylinders with gas for delivery to consumers of 'bottled' gas. Consequently, it was necessary to transfer the propane from Arnold's truck into the storage tanks and thence into the cylinders. The testimony was indefinite as to the precise operation being conducted at the time of the casualty, but it appears that a hose from Arnold's truck was connected with the bulk storage tank and that Arnold and a fellow employee, Chuck Grubbs, were filling cylinders inside some portion of the storage plant. It was necessary to work a lever on the right cab floor to turn on and off the mechanism by which the propane was permitted to flow from the tank truck. The lever could be operated from a standing position to the right of the open cab door. The lever required pressure to raise or lower it. It is not clear whether, at the time of the accident, the tank truck's motor was running for the purpose of transferring the propane from the truck to the storage tank, whether only the motor connected with the storage tank for the purpose of transferring the propane from the storage tank to the cylinders was running, or whether both motors were running, thereby making it possible to transfer propane from the truck to the storage tank and into the cylinders simultaneously.
Arnold told Grubbs that 'he had to go outside' and left. In four or five minutes Grubbs heard a 'popping sound' and heard Arnold say, 'Turn the motor off; I'm shot.' Grubbs 'shut the gas off' and found Arnold against a fence about ten or fifteen feet from the right side of the truck with a gunshot wound in his left groin which was about the point on Arnold's body (Arnold was 5 feet, 11 inches tall) which would be even with the floor of the truck's cab if he stood to its right. After the accident the right cab door was open. The gun was on the floor of the truck cab with the barrel toward the right door and there was one discharged shell in the gun.
Prior statements purportedly made by Arnold to his father-in-law and to his 15-year-old brother-in-law were offered and (although it is not entirely clear from the record) both apparently were excluded by the referee. Arnold's father-in-law said that in the 'fall of 1952' he rode in the truck in question and upon seeing the shotgun on the floor asked Arnold, 'Boy, what are you doing with that gun--what do you haul it for?' Arnold replied, 'That is all the protection I ever carried.' Arnold's brother-in-law said that he often went along while Arnold made propane deliveries and that Arnold told the witness that he, Arnold, carried the gun 'for protection, if someone tried to get the money, for protection.'
We have been cited to no case in this state nor have we found one sufficiently similar factually to be considered a precedent. We have been referred to some cases from other jurisdictions to which further reference will be made. Basically, however, as we analyze the case, we think it must be apparent that if the shotgun was carried in the truck solely for deceased employee's own purposes, unrelated to his employment or the duties thereof, claimant may not recover. This because, under such circumstances, the accident did not arise 'out of the employment' in that the causal origin of the injury was unconnected with deceased's employment. See Larson's Workmen's Compensation Law, Vol. I, Sec. 12.31, p. 175, and the two cases there discussed, Bogavich v. Westinghouse Electric & Mfg. Co., 162 Pa.Super. 388, 57 A.2d 598, and Aetna Life Ins. Co. v. Burnett, Tex.Com.App., 283 S.W. 783. It seems clear, however, that the theory of denying compensation on the basis that the employee has been injured by a hazard or instrumentality which he has imported or created should be confined to hazards and instrumentalities that are not related to the employment. 'The mere increasing of the hazards of employment by the employee's using some article in connection therewith that proves to be dangerous is no different from increasing the risk by active negligence in the manner of performing the work; both should be immaterial in compensation theory.' Larson, supra, Sec. 12.35, p. 182.
For the present, we shall assume that the credible evidence proved that deceased regularly carried the shotgun in the employer's truck for the purpose of protecting himself and employer's property. Making that assumption, the question is whether under the particular facts there was any reasonable relation or connection between the duties which deceased was employed to perform and the fact that deceased carried the gun in the truck, or whether, under the facts of this case, the carrying of the gun by deceased was a reasonable act in the furtherance of his employer's business. Certainly, the fact, standing alone, that an employee, irrespective of the type of work he is hired to perform, chooses to carry a gun does not furnish the necessary work connection. In the instant case, however, the evidence before the Industrial Commission was to the effect that deceased's duties were to deliver propane gas to bulk tank customers who were located both in towns and in the country, to make night deliveries to any of those customers on call, and to collect money from at least four of those customers on behalf of the employer. Taking into account those facts (essentially proved by employer); taking into account the fact that employer had issued no instructions to deceased prohibiting the carrying of firearms for protection of person and property and had made known to deceased no policy of the company in that respect; taking into account the fact that we judicially know that those engaged in the transport of another's property do at times attempt the protection thereof by carrying firearms; and in view of the fact that it is common knowledge that there are frequent highway robberies, we may not say either, that the presence of the gun in the truck placed there by deceased was not reasonably connected with employee's duties, or, that the carrying of the gun by employee was not a reasonable act in furtherance of employer's business. We think, under all the noted circumstances, that there was sufficient connection between the duties of the employment and the carrying of the gun in the truck to require the conclusion that, under the assumption heretofore made, the accident arose out of the employment.
Respondent's contention to the contrary is based chiefly upon an Ohio case, Highway Oil Co. v. State ex rel. Bricker, 130 Ohio St. 175, 198 N.E. 276. In that case, compensation claimant was employed by Oil Company to operate a filling station. He, at the suggestion of a...
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