Bise v. Tarlton

• Decision Date: 03 March 1931
• Docket Number: No. 21418.,21418.
• Citation: 35 S.W.2d 993
• Parties: BISE v. TARLTON et al.
• Court: Missouri Court of Appeals

35 S.W.2d 993

BISE v. TARLTON et al.

No. 21418.

St. Louis Court of Appeals. Missouri.

March 3, 1931.

Rehearing Denied March 19, 1931.

Appeal from St. Louis Circuit Court; Granville Hogan, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Bud Bise, claimant, for injuries, opposed by G. L. Tarlton, employer, and the T. H. Mastin & Co., insurance carrier. An award by the commission in favor of the employer and insurance carrier was reversed, and judgment was rendered for claimant, and the employer and insurance carrier appeal.

Reversed and remanded, with directions.

Fordyce, Holliday & White, of St. Louis, for appellants.

Douglas H. Jones, of St. Louis, for respondent.

BECKER, J.

This is a proceeding under the Workmen's Compensation Act by Bud Bise, claimant, against G. L. Tarlton, employer, and T. H. Mastin & Co., insurer, for injuries alleged to have been sustained about 7:45 o'clock p. m., on November 2, 1928, at the intersection of Utah street and Broadway, in the city of St. Louis, when said Bise was struck by an automobile being driven north on Broadway by a negligent third party.

The answer of said employer and said insurer denies each and every allegation contained in said claim.

The evidence upon the claim was originally heard by Hon. Evert Richardson, one of the commissioners, and an award entered in favor of claimant, but upon a rehearing before the full commission said award was reversed and an award entered in favor of the employer and the insurer. Upon appeal the circuit court, after a review of the evidence, held that the facts found by the commission did not support the award, and that there was not sufficient competent evidence in the record to warrant the making of such award, and then proceeded to make its own finding of facts and thereupon reversed the finding and award of the commission and entered judgment in favor of the claimant for $864.60, together with interest thereon at the rate of 6 per cent. per annum from September 19, 1929, and also costs against the employer and insurer. In due course the employer and insurer bring this appeal.

In light of the conclusion we have reached in this case we need consider but one assignment of error, namely, that the trial court below erred in reversing the award of the Workmen's Compensation Commission denying compensation on the ground that the facts found by the commission did not warrant the award, and that there was not sufficient competent evidence in the record to warrant the making of the award. This point is well taken.

The final award of the commission in favor of the employer and insurer and against the claimant contains the finding that the accident did not arise out of and in the course of claimant's employment.

Where the facts are in dispute, as here, the finding of the commission that the accident did not arise out of and in the course of claimant's employment is a finding of fact, conclusive and binding on appeal if there is substantial evidence to support it, and has the force and effect of a verdict of a jury. Rolens v. Keller Const. Co. (Mo. App.) 24 S. W.(2d) 1077; Kinder v. Hannibal Car Wheel & Fdry. Co. (Mo. App.) 18 S.W.(2d) 91, and cases cited. In determining the sufficiency of the evidence to sustain the finding of facts by the commission, this court will look only to the evidence which is most favorable, adding thereto all reasonable inferences of fact to be drawn therefrom to support such finding, and will disregard all opposing evidence as is done in passing on a demurrer to the evidence in ordinary civil actions. Hammack v. Lumber Co. (Mo. App.) 30 S.W.(2d) 650; Brewer v. Lime & Cement Co. (Mo. App.) 25 S.W.(2d) 1086; Cotter v. Coal Co., 222 Mo. App. 1138, 14 S.W.(2d) 660.

Claimant was a night watchman for G. L. Tarlton. Tarlton's office and yard in which trucks which belonged to him were stored during the night were located at the southwest corner of Broadway and Utah street. Broadway runs north and south and Utah street east and west at the point in question, and in the center of Broadway there are two sets of street car tracks, one for north-bound and the other for south-bound cars. It was part of the claimant's duties to see that the lights were burning on such trucks, if any, that Tarlton might have parked on the north side of Utah street west of Broadway, but in the performance of his duties as night watchman claimant was at no time required to go east of the west curb of Broadway. According to claimant's testimony, at about 7:30 o'clock on the evening in question he left Tarlton's office at the southwest corner of Broadway and Utah street and walked over to the north curb of Utah street west of Broadway where several of Tarlton's trucks were parked, to relight a red lantern on one of the trucks. "I started back; I was on my way back to the office and I had got somewhere between Utah and Broadway, but I was in Utah, and there was a car coming fast; this car was going north and she was on the wrong side of the street. I got out there and she got me, and that's all I remember, because she knocked me unconscious."

On cross-examination claimant stated that some twenty or twenty-five minutes before the accident he had crossed Broadway and gone to a soft drink store located close to the southeast corner of Broadway and Utah street to get a pencil; that he had also been over to the soft drink store prior thereto, at 5 o'clock, to have his pay check cashed; that the accident did not occur on his return on either of these occasions, and that at the time he met with his injuries he was in Utah street and not in Broadway.

Mrs. Venus Schaper testified that she was driving her automobile north on Broadway, and that as she approached Utah street she saw Bise near the southeast corner of Broadway and Utah street some thirty feet distant; that Bise...