Buckner v. Quick Seal, Inc., and Lib. Mut. Ins. Co.

• Decision Date: 23 May 1938
• Docket Number: No. 19224.,19224.
• Citation: 118 S.W.2d 100
• Parties: THOMAS F. BUCKNER, RESPONDENT, v. QUICK SEAL, INC., AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANT.
• Court: Missouri Court of Appeals

118 S.W.2d 100

THOMAS F. BUCKNER, RESPONDENT, v. QUICK SEAL, INC., AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANT.

No. 19224.

Kansas City Court of Appeals. Missouri.

May 23, 1938.

Appeal from Jackson Circuit Court. — Hon. Darius A. Brown, Judge.

AFFIRMED.

Mosman, Rogers, Bell & Buzard and Don. E. Black for appellants.

Cope & Hadsell, A.M. Etchen and Hume & Raymond for respondent.

REYNOLDS, J.

This is an appeal from the judgment of the Circuit Court of Jackson County, Missouri, at Kansas City, affirming the final award of the Missouri Workmen's Compensation Commission in favor of the respondent-employee (hereinafter referred to as the employee) against the appellant-employer (hereinafter referred to as the employer) and its insurer.

On October 30, 1936, the employee, Thomas F. Buckner, filed a claim for compensation for alleged injuries accidentally received by him growing out of and in the course of his employment with the employer.

Thereafter, in due time, the employer, Quick Seal, Inc., and its insurer, Liberty Mutual Insurance Company, filed their answer to said claim and later, on November 17, 1936, filed their amended answer to said claim.

A hearing had on March 10, 1937, before Referee Warner Woolverton of the commission, at Kansas City, Missouri, resulted in an award rendered on March 26, 1937, by said referee of compensation to the employee for permanent partial disability for one hundred and eight weeks at the rate of twenty dollars per week.

An appeal was had by said employer and its said insurer from the award of the referee to the entire commission on April 1, 1937, resulting in the affirmance of the referee's award by the entire commission on June 24, 1937.

Thereafter, an appeal from the final award was taken by the employer and its insurer to the Circuit Court of Jackson County, Missouri, at Kansas City, on July 8, 1937; and, on July 10, 1937, the commission caused to be duly certified to said court and filed therewith a transcript of the evidence and the awards and findings of said commission in said cause, together with all documents and papers on file with it therein.

Thereafter, on September 13, 1937, at the September term, 1937, of the Circuit Court of Jackson County, Missouri, at Kansas City (to which the appeal was had), the cause was heard before the judge of division 2 of said court upon the record certified to said court by the commission; and judgment was entered affirming the final award of the commission and ordering that the employee have of and recover from the employer and its insurer the sum of twenty dollars per week for one hundred and eight weeks, beginning June 1, 1936, for permanent partial disability, payable in the manner prescribed, as fixed in the final award of the Compensation Commission, and that execution issue therefor.

It appears from the record that the employee was, on the date of his alleged injuries and for some time prior thereto, employed by the employer to repair and install refrigeration machinery, which work took him to different points all over the United States. In doing this work, he traveled from place to place by railroad train and, at the time of his alleged injuries, was traveling as a passenger on a train in the course of his employment to do some work for the employer at Jacksonville, Florida.

It was alleged by the employee in his claim filed with the Workmen's Compensation Commission that he had sustained personal injuries on June 1, 1936, near Pensacola, Florida, while en route as a passenger on a train from New Orleans to Jacksonville, Florida, on business of the employer; that he had completed a job for the employer of mechanical refrigeration at Baton Rouge, Louisiana, and was going to Jacksonville, Florida, to finish another job at that point, traveling on the employer's time; that he was assaulted without provocation while so en route on the train by a drunken individual thereon, who struck him over the face and the right eye, from which the loss of the sight of the right eye resulted. The claim was dated October 29, 1936, and was filed with the commission October 30, 1936.

The employer and its insurer filed answer to the employee's claim November 7, 1936, said answer being dated November 6, 1936, by which they admitted the date of the accident as being June 1, 1936, and the place where it happened as being near the city of Pensacola, State of Florida, while the employee was en route from New Orleans to Jacksonville, Florida, and by which they denied each and every other allegation, matter, and averment in said claim.

Subsequent to filing said original answer, the employer and the insurer filed an amended answer before the commission on November 17, 1936, which was dated November 16, 1936, in which the date and the place of the accident were again admitted and denial was again made of each and every allegation, matter, and averment made and contained in the employee's claim. In such amended answer, the employer and the insurer further set up that the first notice given to them or either of them of the alleged accident and injury was on or about August 10, 1936, and that they had been prejudiced by the failure of the employee to report said accident as required by law and pleaded such failure to give notice as a bar to the prosecution by the employee of the claim.

It was admitted by the parties at the hearing before the referee that both the employee and the employer had elected to accept the provisions of the Missouri Workmen's Compensation Commission Act before the time of the accident and that the compensable rate was twenty dollars per week. It was admitted that, at the time of the accident, the employee was traveling on a train in the course of his employment. The employer and the insurer upon said hearing denied that, if the employee had sustained any injury, such injury resulted in the loss of the vision of his right eye and that the injury or the loss of the vision of his right eye was the result of an accident arising out of and in the course of his employment.

The employee testified that, on June 1, 1936, the date of his injury, he was in the employ of the employer as a refrigeration mechanic; that he had completed a job for the employer at Baton Rouge, Louisiana, and was en route by train to Jacksonville, Florida, for the purpose of installing some machinery at the plant of the Seybold Baking Company at that point, which had been previously sold and delivered to said bakery by the employer; that, while on the train en route, he became acquainted with one Frank J. Tart, another passenger on said train; that he and his acquaintance started from the car in which they were seated to go to the smoker, located toward one corner of the coach; that, when they reached the smoker, it was so crowded that they could not get a seat and they stood in the vestibule of the smoking car or the aisleway adjacent to the smoker; that, while standing there, a stranger approached, who was very drunk, stating that he weighed 297 pounds and was a wrestler. He stated to the employee and his acquaintance that he was a wrestler and was going to demonstrate some wrestling holds. He at once attempted to take hold of the employee and seized him; and, as the employee was attempting to escape and break the wrestler's hold upon him, the wrestler demonstrated upon him with — in ringside parlance — the "rabbit punch," landing on the employee's head over the right eye and causing his injury. The employee testified that the wrestler shook him and twisted his head; that he took hold of his neck and further demonstrated his wrestling tactics by applying his wrists to the sides of his neck and shaking him about; that he complained of his treatment and tried to get away from the wrestler but found that he was hedged in between the was of the narrow aisleway in which he was standing and could not retreat and get away from him. He could not get into the smoking room because it was filled; and he was cut off from the coach in which he had been riding by the ponderous form of the wrestler who, with his 297 pounds, stood in the narrow aisleway in front of him.

It does not appear that the employee had ever seen this wrestler before. Neither does it appear that the wrestler had any malice against him or that his attack upon him was due to any personal differences between them or to any provocation given by the employee. Upon the other hand, such attack appears to have been due entirely to a desire on the wrestler's part to demonstrate his wrestling tactics upon the employee, against the wishes of the employee and his fellow passenger Tart. The only conversation had during the time that the wrestler was about the employee related solely to wrestling and wrestling holds. There was nothing said concerning the employer's business or concerning any matters relating thereto.

The employee's face about the right eye became blue and black and was very sore and painful for some days thereafter. He could not sleep that night. When he got off the train the next morning at Jacksonville, his eye was very much blurred; and he could not see very well with it. Such blurred condition has continued ever since. There is evidence tending to show that the employee sustained the loss of vision to his right eye by reason of the blow received from the wrestler over it by him. There was expert testimony to the effect that the loss of vision sustained by him could have been caused by a blow such as that received from the wrestler.

There is evidence tending to show that his left eye was perfectly normal and that the vision in his right eye had been normal up to the time of his injury on June 1, 1936.

The employee returned from Jacksonville to Kansas City on the morning of June 27, 1936, at an early hour and went immediately to the employer's place of business where he remained for about one hour and then left, upon the urgent request of the employer that he do so, for...