Brooks v. Greenberg, 22808.

• Citation: 67 S.W.2d 823
• Decision Date: 06 February 1934
• Docket Number: No. 22808.,22808.
• Parties: BROOKS v. GREENBERG et al.
• Court: Missouri Court of Appeals

67 S.W.2d 823

BROOKS v. GREENBERG et al.

No. 22808.

St. Louis Court of Appeals. Missouri.

February 6, 1934.

Appeal from St. Louis Circuit Court; Claude O. Pearcy, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Ora Brooks, claimant, opposed by Isadore Greenberg, doing business as the Republic Bag Company, employer, and the Fidelity & Casualty Company of New York, insurer. From a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of claimant, the employer and insurer appeal.

Affirmed.

George A. Hodgman and Albert E. Cunliff, both of St. Louis, for appellants.

Frank S. Bledsoe, of St. Louis, for respondent.

BENNICK, Commissioner.

This is a proceeding under the workmen's compensation act (sections 3299-3376, R. S. 1929 [Mo. St. Ann. §§ 3299-3376, pp. 8229-8294]), the appeal being by the employer and insurer from the judgment of the circuit court of the city of St. Louis, affirming the award of the commission in the employee's favor. Ora Brooks is the employee; Isadore Greenberg, doing business as Republic Bag Company, is the employer; and the Fidelity & Casualty Company of New York is the insurer.

The employer's business, which apparently consisted of the purchase, repair, and resale of secondhand burlap bags, was carried on in a two-story building located at 1439 North Thirteenth street, in the city of St. Louis. The employee, whose duty was to inspect and assort bags, was stationed on the second floor, from which but a single stairway led down to the ground floor.

On July 22, 1932, there was a severe storm over the city; and there seems to be no doubt that a bolt of lightning contributed to the fire on the premises which led to the employee's injury. She testified, as also did other witnesses, that though there had been numerous flashes of lightning throughout the storm, there had been no shaking or jarring of the building as though it had been struck, nor had there been any fire in the building before the storm.

Upon discovering the fire, which seemingly had spread very rapidly, the employee ran to the stairway leading down to the first floor, but was unable to descend it because of the flames from a pile of bags which were stacked in front of the stairway. There were no fire escapes on the building, and consequently the employee was left with no alternative but to jump from the window to the ground below. It was in so doing that she sustained the injuries for which she has sought compensation.

The employer himself testified that the fire originated in the electric wiring and switch located on the partition between the office and the factory portion of the first floor, from whence it spread to the building as a whole. Subsequently the employer brought an action for damages against the Laclede Power & Light Company, which owned and maintained the wires entering his building and supplied him with his electrical power; the basis of his action being the alleged failure of the light company to have equipped its lines with lightning arresters.

The commission awarded the employee compensation in the total sum of $58.90, and the appeal of the employer and insurer was taken in due course to the circuit court, where the award of the commission was affirmed. The appeal of the same parties to this court has followed.

From the very inception of this proceeding the employer and insurer have advanced but one defense as against the application of the...