Conklin v. Kansas City Public Service Co.

• Citation: 41 S.W.2d 608,226 Mo.App. 309
• Parties: CHARLES CONKLIN, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE CO., APPELLANT
• Decision Date: 06 April 1931
• Court: Kansas Court of Appeals

41 S.W.2d 608

226 Mo.App. 309

CHARLES CONKLIN, RESPONDENT, v. KANSAS CITY PUBLIC SERVICE CO., APPELLANT

Court of Appeals of Missouri, Kansas City

April 6, 1931

Appeal from the Circuit Court of Jackson County.--Hon. Darius A Brown, Judge.

AFFIRMED.

Judgment affirmed.

T. W Imes and Atwood, Wickersham, Hill & Chilcott for respondent.

Charles L. Carr and Mont. T. Prewitt for appellant.

ARNOLD J. Bland, J., concurs; Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an appeal from the action of the circuit court of Jackson County, Missouri, setting aside a former judgment rendered therein, involving a claim for compensation under the provisions of the Missouri Workmen's Compensation Act. The facts forming the basis of the claim are as follows:

The employer (defendant) is a corporation engaged in operating street cars upon its various lines in the city of Kansas City, Jackson County, Missouri, and in maintaining shops and other necessary adjuncts in connection therewith. On February 3, 1928, the claimant, an employee of defendant company at the company's shops located at Tenth street and Lister avenue in said city, at about 12:20 P. M. of said day, during the lunch period, was injured by being struck in the eye by a baseball bat thrown by a fellow employee while playing a game of indoor baseball, and the sight of the eye completely destroyed. Claimant was employed as a machinist and his regular place of work was at a bench machine in the machine shop which was maintained on the premises of defendant's plant located as above stated. The game was being played in one of defendant's buildings known as the paint shop which was about fifty feet from the machine shop where claimant, on the day in question, ate his lunch as was his custom. The players consisted of a team from the machine shop and one from another division of defendant's employees known as the "stock men" and claimant was watching the game when the injury occurred. The games had been played regularly for a period of four or five years prior to the injury in question. The shops cover a space about the dimensions of a city square block, 400 to 500 persons being employed therein. The various sections of the employees such as machinists, painters, boiler-makers, etc., each had a separate ball team. The evidence shows the employer did not furnish the balls and bats for the men but permitted the games in the paint shop which were played with the knowledge and consent of the company and some of defendant's foremen were players on the teams. Plaintiff's rate of pay was fifty cents an hour for nine hours work a day and he was not paid for the lunch period which was from twelve o'clock noon to 12:30.

It appears that on Christmas day, or the day preceding, there was a game de luxe, during which the players and those employees who looked on were paid full time while thus engaged. The employees were not required to attend or engage in the games as players, nor remain on the premises and, in fact, many of them did leave the premises for their lunches. On the day in question, while claimant was eating his lunch, his shop overseer, Mr. Briar, said to him, "Come on and go to the ball game" or words to that effect, and after he finished his lunch plaintiff went to the paint shop to watch the game. It had been his custom to attend the games when the machine shop team played some other team and he had attended six or seven such games. It is in evidence that the bats used by the men were supposed to have straps or loops upon them through which the hand of the batter was thrust to prevent the bat from slipping out of the hand. There was no strap on the bat which injured claimant, though other bats in use in the game were equipped with straps. The testimony shows the injury was inflicted unintentionally and was wholly an accident.

On April 20, 1928, claimant filed his claim for compensation before the compensation commission. On June 21, 1928, a hearing was held before Orin H. Shaw, a member of the commission, and on July 18, 1928, said commissioner made his findings of fact and special finding rulings of law therein, and found in favor of the employer. The special finding is as follows:

"The evidence in this case shows that at the time of this accident the employee was not engaged in the course of his employment; and the accident did not arise out of or in the course of the employment. His claim for compensation is therefore denied."

On July 23, 1928, claimant filed his application with the commission for a review, and on November 30, 1930, there was such a rehearing before Commissioner Shaw, and additional evidence taken. On January 18, 1929, a final award was made by the full commission, in favor of the employer and the award of July 18, 1928, was affirmed. On February 5, 1929, claimant filed his notice of appeal with the commission, and the cause with a complete record and transcript, was filed in the Jackson county, circuit court. The cause came on for hearing in Division 2 of said court, upon the transcript of the proceedings before the commission and on October 5, 1929, the award was affirmed. On October 9, 1929, and in due time, claimant filed his motion for a new trial and rehearing and on April 17, 1930, the trial court sustained the motion, set aside its former judgment, and entered the following order:

"Judgment of October 5, 1929, set aside upon rehearing award of Workmen's Compensation Commission Commissioner reversed for the reasons (A) that the facts found by the Commissioner do not support the award; (B) that there was not sufficient competent evidence in the record to warrant making the award, and the cause is remanded to the Workmen's Compensation Commission for further proceedings and award not inconsistent with this decision and judgment."

A timely motion for a new trial was overruled and defendant appeals.

The material facts of the case are not disputed. The basic charge of error is that the court erred in rendering its judgment of April 17, 1930, and this charge is attempted to be supported by three supplemental assignments which, being so closely allied, we shall consider together, and in doing so it will be necessary to refer to the provisions of the compensation act itself. Section 44 of the act (sec. 3342, R. S. 1929), provides:

"Upon appeal no additional evidence shall be heard, and in the absence of fraud, the findings of fact made by the commission within its powers shall be conclusive and binding. The court, on appeal, shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

"1. That the commission acted without or in excess of its powers.

"2. That the award was procured by fraud.

"3. That the facts found by the commission do not support the award.

"4. That there was not sufficient evidence in the record to warrant the making of the award."

Section 3301, Revised Statutes 1929, provides:

"If both employer and employee have elected to accept provisions of this chapter, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of his employment, and shall be released from all other liability therefor whatsoever, whether to the employee or any other person."

It is urged by appellant in its supplemental assignment numbered 2, that the final award of the commission was proper as was the original judgment of the circuit court of October 5, 1929, upholding the same, because (1) the commission did not act without or in excess of its powers in making the award; (2) because said award was not procured by fraud; (3) because the facts found by the Compensation Commission were sufficient to support the award; (4) because there was sufficient competent evidence in the record to warrant the award made by the commission.

In its supplemental assignment numbered 3, it is urged the court erred because its judgment, as now recorded, is in violation of the general provisions of the laws of Missouri, including that part of section 44 of the act, which provides "Upon appeal no additional evidence shall be heard and in the absence of fraud, the findings of facts made by the commission within its powers shall be conclusive and binding." And because the facts found by the commission do not support its final award; because there was sufficient evidence in the record to warrant the commission in making its final award; because there is an absence of fraud, and because the commission did not act without or in excess of its powers in making its final award.

Supplemental assignment numbered 4, charges the court erred in rendering its final judgment, because the final award of the commission was based upon its finding to the effect that "the evidence in this case shows that at the time of the accident the employee was not engaged in the course of his employment and the accident did not arise out of or in the course of the employment and the claim for compensation was therefore denied." That these findings of facts made by the commission within its powers are conclusive and binding upon the circuit court and this court. It has been held such findings of fact have the force and effect of a verdict of a jury whose sole prerogative is to determine the facts. This review therefore is necessarily limited to the question of the application of the law to the facts found, and as to this, defendant insists the court erred in its final judgment. No claim is made that the original award was procured by fraud, nor that the commission acted without or in excess of its powers, but the charge is made that the facts...