Birchett v. Tuf-Nut Garment Manufacturing Co.

• Decision Date: 08 March 1943
• Docket Number: 4-7014
• Citation: 169 S.W.2d 574,205 Ark. 483
• Parties: BIRCHETT v. TUF-NUT GARMENT MANUFACTURING COMPANY
• Court: Arkansas Supreme Court

169 S.W.2d 574

205 Ark. 483

BIRCHETT v. TUF-NUT GARMENT MANUFACTURING COMPANY

4-7014

Supreme Court of Arkansas

March 8, 1943

Appeal from Pulaski Circuit Court, Second Division; Lawrence C Auten, Judge; affirmed.

Judgment affirmed.

Gene Rhodes and Joseph Brooks, for appellant.

Donham Fulk & Mehaffy and E. W. Moorhead, for appellee.

CARTER J. ROBINS, J., dissenting.

OPINION

CARTER, J.

Zelma Birchett filed a claim with the Workmen's Compensation Commission against her employer, Tuf-Nut Garment Manufacturing Company, and against Globe Indemnity Company, its insurance carrier, seeking an award of compensation for an injury which she alleged arose out of and in the course of her employment. The Commission, after a hearing, found "That the claimant, Zelma Birchett, did not receive an accidental injury that arose out of the employment with her employer," and denied her claim.

Zelma Birchett appealed from this award to the circuit court of Pulaski county, and the Commission certified to the court all documents and papers on file before it in the matter, together with the transcript of evidence and its findings and award. The statute, § 25 (b) of Act 319 of 1939, provides that these papers shall become the record of the cause in the circuit court, that no additional evidence should be heard, and that, in the absence of fraud, the findings of fact made by the Commission, within its powers, shall be conclusive and binding.

The circuit court sustained the award of the Commission and dismissed the appeal. The claimant excepted to this judgment and prayed and was granted an appeal to this court.

Section 25 (b) of Act 319 of 1939 directs that the circuit court, on such appeal, "shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other: '1. That the Commission acted without or in excess of its powers. 2. That the award was procured by fraud. 3. That the facts found by the Commission do not support the award. 4. That there was no sufficient competent evidence in the record to warrant the making of the award.'

"Appeal from the circuit court shall be allowed the same as in civil actions . . ."

The Commission's report, in full, is as follows:

"The claimant, Zelma Birchett, had been employed by the Tuf-Nut Garment Manufacturing Company for approximately three years. Claimant alleges that on September 13, 1941, about 9:30 a. m., during the rest period provided by the employer for the employees, she saw a group of girls standing near a table apparently reading and signing some sort of paper. She approached the table for the purpose of finding out what the paper was, and found it to be a petition to the effect that the employees were satisfied with the working conditions of the plant and which was being signed by various employees. The paper at that time was in the possession of Malveda Barnes. Claimant testified that she requested to be permitted to read the paper and the signatures thereto, but the pages were being turned so rapidly that she was unable to do so; that she pulled the paper from beneath the clip that held it to a board and retreated to her machine; that she was followed by Malveda Barnes and others and set upon by them to regain the paper. Claimant testified that she had pushed the paper beneath her blouse and that in the struggle to regain the paper she was choked, her hair was pulled, and that her blouse was ripped open and the paper removed; that as a result she suffered accidental injuries which had disabled her and prevented her from performing her usual work and from which she now suffers. Claimant testified that the struggle to regain the paper was over at about the time the warning bell was rung. This bell was rung five minutes in advance of the time the employees were required to resume their work for their employer. Claimant testified that in the struggle over the paper she estimated some eight employees were involved.

"Ruby Carlton, another employee, testified that she approached the table with the claimant to read the paper and that claimant, Zelma Birchett, took the paper; that Mrs. Browning, supervisor, among others, demanded it to be taken from the claimant; that she does not know who struck the first blow; that the accident happened on Saturday and that all who participated continued to work Saturday and came back Monday as usual. Claimant ceased work on Tuesday, September 16, 1941.

"Vera Birchett, sister-in-law of the claimant, testified that when she approached the struggle Malveda Barnes and a Mrs. Duncan had hold of her sister-in-law; that the only part she had in the struggle was in attempting to remove Mrs. Barnes and Mrs. Duncan from the fight. Virtually the same set of facts were testified to by Mrs. Nettie Carroll, who actually removed the paper from the claimant's blouse, and by Mrs. Betty Sexton.

"Mrs. W. V. Browning, supervisor of this department, testified that she had seen the paper being circulated; that she understood it was originated by some of the boys working downstairs and that it was to the effect that the employees were satisfied with their working conditions.

"The testimony before the Commission from various witnesses is that some time prior to the incident on September 13th there had been a series of broadcasts regarding the working conditions in this and possibly other industries.

"According to the testimony of Malveda Barnes some of the employees, not members of the union, were incensed over these broadcasts, and the paper referred to herein was to the effect that the employees were satisfied with their working conditions, and as she understood was being circulated for the purpose of stopping the broadcasts which were union sponsored.

"All of the testimony before the Commission is that this paper was circulated only during rest or lunch periods and that the arguments pro and con regarding unions and non-unions have been engaged in for some time during these periods. The testimony before the Commission is that the paper had its origin among some of the employees of the plant and was being circulated by employees. Testimony is to the effect that the trouble from which the claimant alleges she received accidental injuries started during a rest period and ended on or about the warning bell, prior to resumption of employment. This rest period was provided each morning and each afternoon, and lasted twenty-one minutes, during which time the employees were free to go and do what they wanted, and to leave the premises, which was frequently done.

"Upon all the evidence in this case, the Commission makes the following findings of fact:

"1. That the parties to this cause are bound by the provisions of the Arkansas Workmen's Compensation Act.

"2. That the respondent employer herein, Tuf-Nut Garment Manufacturing Company, has secured payment of Workmen's Compensation benefits through a policy of insurance issued by the Globe Indemnity Company.

"3. That the claimant, Zelma Birchett, did not receive an accidental injury that arose out of the employment with her employer.

"Upon the foregoing findings of fact, the Commission bases the following conclusions of law:

"To be compensable under the Arkansas Workmen's Compensation Act an accidental injury must arise out of and in the course of employment, both elements must be present. It is not sufficient that an accident arises in the course of employment, but it must arise out of it. In order to satisfy the act, both conditions must occur. The words 'arising out of' refer to the origin or cause of the accident, while the words 'in the course of' refer to the time and place and circumstances under which the accident takes place.

"The burden of proof is upon the claimant herein not only to establish the fact that she was injured in the manner claimed, but to show that she was injured by an accident that arose out of and in the course of her employment.

"In the opinion of the Commission all of the testimony before the Commission bears out that the cause of this difficulty, in which the claimant alleges she received this accidental injury, arises out of a personal matter between the employees; that it had its origin in their personal differences and opinions as to unionism and non-unionism, and did not arise out of the employment or in furtherance of the master's interest or business. The claimant herein having failed to discharge the burden placed upon her to establish the fact that the accidental injury complained of arose out of the employment, her claim for compensation herein must be denied."

There is no dispute about the facts. The sole question is whether, as a matter of law, the facts found by the Commission do or do not support its award--that is whether as a matter of law the facts sustain the Commission's conclusion that claimant is not entitled to compensation.

The question here presented is a new one in this state. Decisions from other jurisdictions, while persuasive, are not conclusive.

Claimant's injuries arose out of a personal difficulty which she...