Crutcher v. Curtiss-Robertson Airplane Mfg. Co.

• Decision Date: 03 September 1932
• Parties: Betty Jane Crutcher, a Minor, by Billie Bruner Crutcher, her Guardian, Appellant, v. Curtiss-Robertson Airplane Manufacturing Company and Liberty Mutual Insurance Company. Betty Jane Crutcher, a Minor, by Billie Bruner Crutcher, her Guardian, v. Curtiss-Robertson Airplane Manufacturing Company and Liberty Mutual Insurance Company, Appellants
• Court: Missouri Supreme Court

52 S.W.2d 1019

331 Mo. 169

Betty Jane Crutcher, a Minor, by Billie Bruner Crutcher, her Guardian, Appellant, v. Curtiss-Robertson Airplane Manufacturing Company and Liberty Mutual Insurance Company. Betty Jane Crutcher, a Minor, by Billie Bruner Crutcher, her Guardian, v. Curtiss-Robertson Airplane Manufacturing Company and Liberty Mutual Insurance Company, Appellants

Supreme Court of Missouri

September 3, 1932

Appeal from Circuit Court of St. Louis County; Hon. Julius R Nolte, Judge.

Reversed and remanded (with directions).

Holland Lashly & Donnell for Betty Jane Crutcher.

(1) The findings of the commission that Crutcher's death arose out of and in the course of his employment and that the claimant was a total dependent of Crutcher, stand upon the same footing as a verdict of a jury and there is substantial competent evidence to sustain the findings. This court must therefore, uphold said findings. Leilich v. Chevrolet Motors Co., 40 S.W.2d 601; Wahlig v. Grocery Co., 29 S.W.2d 128. (2) There is substantial competent evidence in the record to establish that the accident in which the employee Crutcher met his death arose out of and in the course of his employment as chief inspector at the employer's factory. (a) He was engaged in his duties as such chief inspector on the plane in which he met his death and had not completed his duties as such chief inspector at the time of the accident. (b) It is a reasonable inference from the evidence that Crutcher assumed that the plane would be taxied from the factory to the storage hangar, in which event he was, under the employer's own evidence, authorized to ride therein. (c) Even if it be inferred that Crutcher knew that the plane was not to be taxied to the storage hangar, but was to be flown to the hangar, still his act in failing to obtain permission to ride would amount to negligence only and would not defeat recovery. Leilich v. Chevrolet Motors Co., 40 S.W.2d 601; Ransdell v. International Shoe Co., 329 Mo. 47; Sec. 3, Workmen's Compensation Act (Sec. 3301, R. S. 1929); Union Colliery Co. v. Industrial Com., 132 N.E. 200; Imperial Brass Co. v. Industrial Com., 306 Ill. 11, 137 N.E. 411; Frint Motor Car Co. v. Industrial Com. of Wis., 170 N.W. 285, 168 Wis. 436; Omaha Boarding & Supply Co. v. Industrial Com., 138 N.E. 106, 306 Ill. 384; New Staunton Coal Co. v. Industrial Co., 136 N.E. 782, 304 Ill. 613. (3) There is substantial competent evidence in the record to establish that claimant was totally dependent upon Crutcher. (a) The divorce decree contains a contract between Crutcher and his wife which provides that Crutcher agrees to pay for the support and maintenance of the claimant five dollars each and every week, and the mother of claimant agreed that such payments shall be in full for the maintenance and support of claimant. (b) The testimony of the mother of claimant shows that she regularly received and was dependent upon the five dollars per week to support the claimant. Kennedy v. Keller, 37 S.W.2d 452; Glaze v. Hart, 36 S.W.2d 684.

Woodward & Evans for Curtiss-Robertson Airplane Manufacturing Company and Liberty Mutual Insurance Company.

(1) The burden was upon claimant to establish that the employee's death was the result of an accidental injury arising out of and in the course of the employment. Stone v. Pipe Co., 27 S.W.2d 459; Munton v. Moving Co., 22 S.W.2d 61; Smith v. Mercantile Co., 14 S.W.2d 470. (a) There is no evidence in the record, either direct or inferential, to support the commission's finding that the employee's death arose out of and in the course of his employment, but, on the contrary, the evidence clearly shows that, at the time of his death, the employee was engaged in a voluntary act now known to, or accepted by, his employer and outside of the duties for which he was employed. Cassidy v. Eternit, Inc., 32 S.W.2d 75; Bise v. Tarlton, 35 S.W.2d 993; Hager v. Pulitzer Publishing Co., 17 S.W.2d 579; Stone v. Pipe Co., 27 S.W.2d 459; Smith v. Mercantile Co., 14 S.W.2d 470; Lumagi Coal Co. v. Industrial Comm., 318 Ill. 151, 149 N.E. 11; Consolidation Coal Co. v. Ratliff, 288 S.W. 1057; Quarles v. Lumberman's Reciprocal Assn., 293 S.W. 333; Sellers v. Construction Co., 124 Kan. 550, 262 P. 19; Koza's Case, 128 N.E. 400; Haggard's Case, 234 Mass. 330, 125 N.E. 565; Weis Paper Co. v. Industrial Comm., 293 Ill. 284, 127 N.E. 732; Adams Westlake Co. v. Industrial Comm., 292 Ill. 590, 127 N.E. 168; Henry v. Industrial Comm., 293 Ill. 491, 127 N.E. 714; Goading v. Laundry Co., 120 So. 507; San F. & S. Ry. Co. v. Industrial Comm., 201 Cal. 597. (b) The award of the commission cannot be based upon inferences which are merely speculative and conjectural. De Moss v. Fire Brick Co., 37 S.W.2d 961. (2) The circuit court properly reversed and set aside the award of the commission which classified claimant as a total dependent of the deceased employee because: (a) Said award and finding of total dependency by the commission was based solely upon the erroneous and illegal assumption that claimant was conclusively presumed to be a total dependent by virtue of Section 21 (d) of the Workmen's Compensation Act (R. S. 1929, sec. 3319), whereas no such presumption existed in this case, inasmuch as claimant was not living with the parent at the time of the latter's death. Glaze v. Hart, 36 S.W.2d 684; McGarry v. Industrial Comm., 64 Utah 592, 232 P. 1090; Moran's Case, 234 Mass. 152, 125 N.E. 157; Gillander's Case, 243 Mass. 5, 136 N.E. 646; Veith v. Patterson, 236 Ky. 845, 34 S.W.2d 717; Kennedy v. Keller, 37 S.W.2d 454; Gendron v. Chapin & Co., 37 S.W.2d 486. (b) The commission was required to find that the claimant was "actually" dependent upon the deceased employee, and there is not sufficient competent evidence in the record to support the award of total dependency. In this connection the evidence shows: (1) That the father's (employee's) legal liability for the support of the child did not extend beyond the sum of $ 5 per week, the amount set out in the divorce decree; (2) that at the time of the employee's death and for, at least, a year prior thereto, claimant's mother, with whom she was living, was earning a substantial sum through her own employment; and (3) there is absolutely no testimony as to the sum required or actually expended for the support and maintenance of the child. Glaze v. Hart, 36 S.W.2d 684; McGarry v. Industrial Comm., 63 Utah 81, 222 P. 592; State Industrial Comm. v. Downton, 135 Md. 412, 109 A. 63; Ninneman v. Industrial Comm., 171 Wis. 190, 176 N.W. 909; Rohan Motor Co. v. Industrial Comm., 188 Wis. 223, 205 N.W. 930; Miller's Case, 244 Mass. 281, 138 N.E. 254; Stephens v. Stephens, 76 Ind.App. 687, 132 N.E. 747; Western Gravel Co. v. Erwin, 84 Ind.App. 26, 149 N.E. 185.

OPINION

Atwood, J.

This is a claim for compensation brought before the Missouri Workmen's Compensation Commission in behalf of the minor daughter of Sidney S. Crutcher, an employee of the Curtiss-Robertson Airplane Manufacturing Company, who was killed as the result of an airplane accident near the employer's assembly plant in St. Louis County, Missouri, on June 21, 1929.

Upon the claim and answer filed and evidence adduced the commission awarded death benefits to claimant in the sum of $ 20 per week for 378.2 weeks, and burial expenses in the sum of $ 150. The employer and insurer appealed from this award on two of the four grounds authorized by Section 44 of the act (Laws 1927, p. 513), namely, that the facts found by the commission do not support the award, and that there was not sufficient competent evidence in the record to warrant the making of the award. On appeal the circuit court held that there was sufficient competent evidence in the record to warrant the commission's finding that "Sidney S. Crutcher, deceased, on or about June 21, 1929, while in the employ of Curtiss-Robertson Airplane Manufacturing Company, sustained an accidental injury arising out of and in the course of his employment, resulting in his immediate death." However, the court set aside the award and remanded the cause for a rehearing on the ground that the commission found and declared claimant a total dependent solely upon an erroneous declaration of law, and did not make its finding and award as to dependency upon any facts found by it, and the award therefore was not based upon sufficient competent evidence to warrant the same. The cause comes here on cross-appeals from the judgment entered in accordance with the court's holdings above indicated.

Appellants' first contention here is that "the accident which resulted in the death of claimant's father did not arise out of and in the course of the employment."

Section 3 of the Workmen's Compensation Act (Laws 1927, p. 492) provides: "If both employer and employee have elected to accept the provisions of this act, the employer shall be liable irrespective of negligence, to furnish compensation under the provisions of this act 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 persons." (Italics ours.)

Section 7 (c) of the same act (Laws 1927, p. 496) provides: "Without otherwise affecting either the meaning or interpretation of the abridged clause, 'personal injuries arising out of and in the course of such employment,' it is hereby declared not to cover workmen except while engaged in, or about the premises where their duties are being performed, or where their services require their presence as a part of such services." (Italics ours.)

In Wahlig v. Grocer Co., 325 Mo. 677, 683, 29 S.W.2d 128, 130, 131, we construed the above italicized words as follows:

"It has been...