Carlton v. Henwood
| Decision Date | 07 March 1938 |
| Citation | 115 S.W.2d 172,232 Mo.App. 165 |
| Parties | FLORA CARLTON AND JUANITA CARLTON, RESPONDENTS, v. BERRYMAN HENWOOD, TRUSTEE, ST. LOUIS-SOUTHWESTERN RAILWAY COMPANY, DEBTOR, EMPLOYER, APPELLANT |
| Court | Missouri Court of Appeals |
Rehearing denied April 14, 1938.
Appeal from the Circuit Court of Scott County.--Hon. Frank Kelly Judge.
MODIFIED AND AFFIRMED.
MODIFIED AND AFFIRMED.
A. H Kiskaddon, Carlton S. Hadley and Harry C. Chapman for appellant.
Stephen Barton for respondents.
This is a proceeding under the Workmen's Compensation Commission which reached this court on the appeal of the employer from the judgment of the circuit court of Scott county reversing an award of the commission and remanding the cause.
On November 1, 1935, the widow and daughter of W. T. Carlton filed their claim for compensation in the amount of $ 6,000 for the death of the said W. T. Carlton and $ 500 for funeral expenses, alleging that deceased "was employed as a pumper, repairman, watchman and caretaker of pump station and premises at Gray's Point, and in entering said station to investigate a burglary he was shot and killed by a burglar who had broken in the building." Employer filed its answer, and it was admitted on a hearing before one of the referees of the commission, March 30, 1936, that the only issues in the case are "whether or not the employment of the deceased employee comes under the compensation law of the State of Missouri, and, second, whether or not the death of the employee was a result of an accident arising out of and in the course of his employment." The referee entered an award, answered the first question in the affirmative, the latter in the negative, and denied compensation. Following the entry of the referee's award, an application for review by the full commission was filed; and on August 8, 1936, an award was entered affirming that of the referee. The claimants appealed to the circuit court where, on November 25, 1936, the court entered its judgment reversing the award and remanding the cause to the commission "with directions to make a finding of the amount of compensation due plaintiff under the undisputed facts and the law of the case." The appeal of the employer to this court has followed in the usual course.
The record discloses the following stipulation:
It is further shown by the evidence that the pump station at which Mr. Carlton was killed is located on the Mississippi river about four miles from Illmo-Fornfelt terminal of the St. Louis Southwestern Railway Company in an isolated and sparsely populated section. Water is pumped from the Mississippi river into a settling basin at Gray's Point, and then into a large water tower at the roundhouse at Fornfelt, and is used by trains and by shops, offices, and factories in Illmo and Fornfelt. There are two pumps, one in the building used as living quarters for W. T. Carlton and claimants which is electrified, the other located about a quarter of a mile up the river which is run by both electricity and steam.
Mr. Carlton was paid $ 125 per month, and his living quarters, fuel and lights were furnished by the employer. Mrs. Carlton testified that sometimes Mr. Carlton was required to be on duty almost twenty-four hours a day. "Of course, he didn't work all the time like that, but if he had trouble on anything he had to work that way." He was employed as a pumper-repairman, and on occasions, sometimes at night, he would repair the pump, replace fuses, and at all times, do such repair work as was incident to such a plant. On some occasions Mr. Carlton would start the pump at five o'clock in the evening and shut it off at two in the morning. He looked after the premises, mowed the lawn, cut the weeds, cleaned the three settling basins, and looked after the premises and property generally. He had no set time to start and stop the pumps, that being determined largely by the amount of water used. He was never away from the station more than three or four hours at a time.
Mrs. Carlton testified that Mr. Carlton was required to live in the living quarters adjoining the pump station in which he was killed. We quote from the record: " Mrs. Carlton further testified that no watchman was furnished Mr. Carlton to look after the premises. Mr. Carlton did that.
When the Carltons returned, there was a light in the portion of the building they occupied as their home. They put the car in the garage and Mr. Carlton entered the pump house as was his custom. The light was burning in the pump house when he left, and it was on when he returned. The light went off in the living quarters, and immediately after Mr. Carlton entered the pump room, Mrs. Carlton heard a shot. The shot was fired from the living quarters and Mr. Carlton was found mortally wounded in the pump room. Mrs. Carlton also testified that although Mr. Carlton was not required to carry a gun, he carried one, and had it with him when he went in the pump house that night.
From re-cross examination of Mrs. Carlton we quote:
After Mr. Carlton was shot the highwaymen asked Mrs. Carlton for money. It was admitted that she had about $ 425.
The testimony of Juanita Carlton was, in substance, the same as that of Mrs. Carlton. She testified that the pumps required almost constant attention; that Mr. Carlton was frequently called during the night to shut down the motors when the water tower would run over; that he did repair work as required, both day and night, such as replacing bearings and fuses; and if anything went wrong and the power was shut off he would receive a call from Illmo notifying him to start the motors.
William Proffer, manager of the Missouri Utility Company, stated that he serviced the station at Gray's Point in May, 1935, and prior thereto; that he had been called frequently by Mr. Carlton to come out to the pumping station at night in order to help him fix the pumps; that he had seen Mr. Carlton take care of the motors in the pumping station at night and had often seen him working about the machinery after midnight.
James Wagner testified that he lived in Illmo; that he had been frequently at the Gray's Point pumping station; that he had seen Mr. Carlton making repairs on the machinery in the pumping house at night and that it was not possible to operate the pump from seven until five in the day and then shut it off without further attention.
Luther E. Morse, present pumper at the Gray's Point station, testified, in part, that he did not know whether the conditions in the pumping station were the same when he took charge as they were when Mr. Carlton operated it, as he did not take charge immediately. We quote from the record:
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