Bowen v. Hall-Baker Grain Co., 17844.

• Decision Date: 04 December 1933
• Docket Number: No. 17844.,17844.
• Parties: FRANK E. BOWEN, RESPONDENT, v. HALL-BAKER GRAIN CO. ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

67 S.W.2d 536

FRANK E. BOWEN, RESPONDENT, v. HALL-BAKER GRAIN CO. ET AL., APPELLANTS.

No. 17844.

Kansas City Court of Appeals. Missouri.

December 4, 1933.

Appeal from Circuit Court of Clay County. — Hon. Ralph Hughes, Judge.

AFFIRMED.

C.H. Ewald for respondent.

Morrison, Nugent, Wylder & Berger and Douglas Stripp for appellant.

TRIMBLE, J.

The case herein is under the Workmen's Compensation Act. Claimant, and now respondent, Bowen, for about eighteen months, and possibly three and one-half years, prior and up to March 15, 1932 (the date of his injury), was an employee of the Hall-Baker Grain Company in its elevator at North Kansas City, Clay County, Missouri, and the Great American Indemnity Company was its insurer. Bowen, on July 7, 1932, filed claim for injury caused by coming in contact with an electric current. Answer thereto was duly filed denying that the injury arose out of and in the course of his employment, and the claim was heard before Commissioner SHAW on July 27, 1932, and on September 30, 1932, a temporary or partial award was made in claimant's favor, which, upon a hearing by the full commission, January 13, 1933, was made permanent, and claimant was awarded compensation in the sum of $2,933.25 (consisting of $53.25 value of medical aid not furnished, and compensation for 150 weeks at $19.20 per week, amounting to $2,880). From this award by the commission, an appeal was duly taken to the circuit court where, on March 20, 1933, the award of the commission was affirmed. From this, the employer and insurer have appealed.

The only point involved in, and contention made by, their appeal is that "there is not sufficient competent evidence" (which we interpret as meaning no substantial competent evidence) to show that the accident "arose out of and in the course of" the claimant's employment. We do not understand that appellants raise any point against the amount of the award, or against how the commission arrived at the amount thereof, but only that it had no evidential basis on which to make any award at all in claimant's favor. Hence we need not consider Point II in respondent's brief in support of the method the commission used in reaching that amount or the correctness thereof.

With regard to appellants' sole contention above mentioned, it is, of course, well settled that the commission is the sole judge of the truth of the evidence and of its weight; and its finding that the accident did arise out of and in the course of claimant's employment is binding upon this court, if there is in the record any substantial competent evidence which, together with all reasonable inferences deducible therefrom, will support the finding and making of such award. [Sec. 3342, R.S. 1929, 12 Mo. St. Ann., Sec. 3342, p. 8275.] The Compensation Commission's finding in this regard is conclusive if supported by sufficient competent evidence, and in considering the question whether the award is supported by the evidence, we consider only evidence most favorable to claimant (together with all reasonable inferences which may be drawn therefrom), to support the conclusion of the commission, and disregard any unfavorable evidence contradictory of such favorable evidence supporting the award. [Probst v. St. Louis Basket, etc., Co., 52 S.W. (2d) 501.] The finding that claimant's injury arose out of and in the course of his employment is a finding of fact and not a conclusion of law, and is conclusive if supported by any substantial evidence; and whether there is any substantial, competent, supporting evidence in a case is to be decided upon its own particular facts and circumstances. Leilich v. Chevrolet Motor Co., 40 S.W. (2d) 601, 605; Sawtelle v. Stern Bros. & Co., 44 S.W. (2d) 264, 269, which last-cited case also holds, as do others, that "The Workmen's Compensation Law must be fairly, reasonably and liberally construed in order to effectuate the legislative intent to afford compensation to an injured employee rather than strictly and technically construed in order to deny compensation." [See also Carrigan v. Western Radio Co., 44 S.W. (2d) 245; Keithley v. Stone & Webster, etc., Corporation, 49 S.W. (2d) 296; all of which are based, no doubt, on Section 3374, R.S. 1909, 12 Mo. St. Ann., Sec. 3374, p. 8293.]

As to what are the facts, circumstances and reasonable inferences to be drawn therefrom, the record discloses the following:

Employee's primary duty was that of a "belt man," i.e., to look after and attend conveyor belts from three to four feet wide, running perhaps twelve miles per hour by electrical power, in tunnels and basement, loaded with grain and carrying same to the various places, the spouts and into car loading, the belts being operated at about knee height. In addition to his belt duties, when not attending to them, he had other duties. As he himself testified, after telling of his work with reference to the belts, "first floor my duty (was) to help in there or any other work I was told to do, my work didn't consist entirely down in tunnels or in basement, mixture of work — whatever I was told to do." When asked if he had any other duties beside those of belt man, he replied, "Yes, lots of different work, help run cleaner and switch around and maybe feed it in or go upstairs to help out or read temperatures or tanks, different things wherever they sent me." The evidence discloses that he had also duties of sweeping in various places around the head house, to sweep and clean up around the elevator plant or anything he might see fit to do. Mr. Neeley, the man immediately over claimant in authority, testified thus concerning his duties other than those of belt man: "Well, after he finished loading, his duties were to come up on the work floor and help sweep in all around the legs we were using where wheat leaked out; after he got that done, if he had his work done in the basement, why he was to work any place he seen fit and anywhere we needed him." Mr. Neeley also testified concerning respondent Bowen, "We didn't have to send him every place, we might not have anything special for him to do for a while and we told him, clean up and wherever it needed it and wherever he found the dirt, that's where you (would) find him." And the general superintendent, Mr. Riley, asked as to the kind of an employee Bowen was, replied, "He was a perfect workman."

Shortly before eleven o'clock in the forenoon of the day of the accident, Bowen had "finished loading out" wheat (by means of the belt conveyors). The accident occurred "somewhere around eleven," and "about five minutes" before the accident, he was seen "sweeping about a third of the way of the house on the south end of the work floor ... That was part of his work." There were several, perhaps two other men, "sweeping that same stuff" at that time and there was a little more sweeping to be done but it was almost or practically done. Witness did not see Bowen quit sweeping nor miss him until he heard him "holler" and he (Bowen) was being carried off injured when next he saw him.

Within a few minutes after he was last seen sweeping on the work floor of the main elevator building, he was found lying, unconscious, on the ground just outside the "dryer house," in the corridor between the dryer and the main elevator building, on his back with his head to the east and his feet to the west (another witness said, "his head was lying down north and south or his head toward the east of south. His feet was north his feet was south.") The place where he was found was about 150 feet (counting the way he would have to go to get there) from the point where he was last seen sweeping. It was quite cold when he was working and he wore gloves, though it is not clear whether his gloves were on his hands when he was found or not. At any rate, his right leg was broken and both his hands had very severe electrical burns on them causing a thirty per cent loss of use in the left hand and a forty-five loss of use in the right, but no permanent disability by reason of the broken leg.

Claimant-employee was from the first unable to recall or remember anything that occurred between the time he shut off the machine operating the conveyor belts (about fifteen minutes before the injury) and the time he regained consciousness in the hospital in Kansas City to which he was taken as soon as possible after the was found injured and unconscious at a point near to a platform about eight feet, seven inches above the ground reached by a ladder leading up to it, which platform gave access to the "motor room" in which was the motor used in operating the machinery in said "dryer house." Indeed, the injury resulted in such loss of memory that he does not even remember the sweeping the other witnesses say he did, but he thinks he must have shut off the power when the sweeping was nearly done as that was his duty and he always shut it off then, and the evidence shows that the power was off and the machinery not running when he was found. The point where he was found lying on the ground was near to and below one side of the platform where he would naturally be if he fell from the platform.

Is there substantial evidence, including reasonable inferences, to support the commission's finding?

Before attempting to discuss or analyze the evidence as to its bearing on this point, it may be well to state that appellants' record is in an unsatisfactory condition so far as clearness and definiteness in showing certain facts are concerned, and even after repeated reading and much study, it is difficult to clearly understand or explain. For instance, there were four photographs introduced in evidence by appellants. The first (Exhibit 1) was offered and the witness was asked, "tell us if you recognize what that is?" "A. That shows the southeast corner of the main elevator building and the northeast corner of the grain dryer — the southeast corner of main elevator and southeast corner — southeast of...