Carriker v. Lindsey
| Decision Date | 05 May 1958 |
| Docket Number | D-X,No. 22757,22757 |
| Citation | 313 S.W.2d 43 |
| Parties | Billy CARRIKER, Appellant, v. Bill LINDSEY, d/b/a Lindsey'sStation and Hardware Mutual Casualty Co., Respondents. |
| Court | Missouri Court of Appeals |
J. P. Morgan, Chillicothe, for appellant.
Chapman & Chapman, Nolan M. Chapman, Jr., Chillicothe, for respondent and insurer.
MAUGHMER, Commissioner.
Plaintiff-employee has appealed from the circuit court judgment which affirmed the final award of the Industrial Commission of Missouri under which plaintiff was denied workmen's compensation benefits.
Approximately four weeks prior to April 6, 1955, plaintiff, Billy Carriker, began working for defendant-employer, Bill Lindsey, d/b/a Lindsey's D-X Station. He was employed as a service station attendant and described his duties as 'greasing, waiting on the drive, washing, oil chaning--tire changing'. The respondent Hardware Mutual Casualty Company appeared as insurer. The parties will be referred to hereinafter as 'employee', 'employer' and 'insurer'.
At about 1:30 p. m. on April 6, 1955, during his working hours and while on employer's business premises, the employee suffered an accidental injury resulting in the loss of his left index finger at the second joint. The employee sustained the injury while he was 'working on' his own personal and private automobile. He testified that he first greased and changed the oil. He said that 'When I was backing it off it just didn't sound right and so I adjusted a little on the carburetor'. When asked how the injury occurred he stated: 'I don't know exactly except the only thing I can tell you--I got my arm caught and got my fingers in the fan, is all I can tell you'. The employee testified further that he had greased and changed the oil in his car on employer's premises before, that he had put chains on it, but that this was the first and only time he had ever repaired his car during working hours. He stated that he paid for the oil and grease; that the employer had never either granted or refused him permission to service his private automobile on the premises during working hours, and that the employer was absent when the injury occurred.
Mr. Lindsey, the employer, testified that he told all of his employees when they started to work that work on their cars 'was not to be done on their time of employment'. He said he never saw this employee grease the car or change the oil while he worked for him, and that he never authorized him to do so.
Earl Lee McCollum, a fellow employee, testified that he had been told by Mr. Lindsey not to work on his car during working hours; that he had seen Carriker working on his car on other occasions but never saw him do so when Lindsey was present.
Insurer and employer have throughout conceded coverage,--that is, that the accident occurred on employer's premises and during employee's working hours. Their denial of liability is based upon their contention that this injury did not 'arise out of and in the course of his employment'. This point constitutes the sole issue presented on this appeal. The finding of the referee was for the employee. The final award of the Industrial Commission ruled that the accident 'did not arise out of and in the course of employee's employment', reversed the award of the referee and denied compensation. The circuit court affirmed the Commission.
Section 287.040, V.A.M.S.1949, Workmen's Compensation, imposes liability on the employer when an employee is 'injured or killed on or about the premises of the employer while doing work which is in the usual course of his business'. Section 287.800, V.A.M.S.1949, directs liberal construction of the act 'with a view to the public welfare'. However, such liberality does not authorize allowance of a claim which lacks some of the essential elements required by the act. Mershon v. Missouri Public Service Corporation, 359 Mo. 257, 221 S.W.2d 165.
The employee asserts that the Commission did not give due deference to the findings of the referee, who saw and heard the witnesses. He maintains that the appellate courts should grant such 'due deference', and should in that respect review the referee's, rather than the Commission's findings and reverse the judgment. We believe that the findings of the referee are important and carry weight especially as to credibility of witnesses, but his conclusions are not conclusive as to the Commission. Furthermore, it is the award of the Commission that is reviewed by the courts and it should be upheld if supported by competent and substantial evidence upon the whole record or is not clearly contrary to the overwhelming weight of the evidence. In Banks v. City of Hannibal, Mo.App., 283 S.W.2d 909, loc. cit., 913, we find this statement: * * *. .
In Brown v. Griesedieck Western Brewing Co. of Missouri, Mo.App., 250 S.W.2d 803, loc. cit. 809-810, the same rules were enunciated by these words: .
In Barron v. Mississippi Lime Co. of Missouri, Mo.App., 285 S.W.2d 46, loc. cit. 49, the phraseology is: .
Probably no utterly complete and all-covering definition of the meaning of the phrase 'arising out of and in the course of his employment' ever will be formulated. Each case involving this point should be decided upon its own particular facts and circumstances rather than by application of some formula or definition. Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Finley v. St. Louis Smelting & Refining Co., Mo., 233 S.W.2d 725; Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421.
In answering our ultimate question and in deciding this case the unanimous opinion by our Supreme Court en banc. in Finley v. St. Louis Smelting & Refining Co., supra...
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