Daugherty v. City of Monett

• Citation: 192 S.W.2d 51,238 Mo.App. 924
• Parties: Gladden Daugherty, Respondent, v. City of Monett and Western Casualty and Surety Company, Appellant
• Decision Date: 11 January 1946
• Court: Missouri Court of Appeals

192 S.W.2d 51

238 Mo.App. 924

Gladden Daugherty, Respondent, v. City of Monett and Western Casualty and Surety Company, Appellant

Court of Appeals of Missouri, Springfield District

January 11, 1946

Rehearing Denied February 2, 1946.

Appeal from Circuit Court of Lawrence County; Hon. Emory E. Smith Judge.

Affirmed.

James E. Sater for appellants.

The record shows the injuries of the claimant did not arise "out of" and "in the course of his employment," and there was not sufficient evidence to warrant the making of the award. Metting v. Lehr Construction Company, 32 S.W.2d l. c. 124, 225 Mo.App 1152; Cassidy et al. v. Eternit, Inc., et al., 32 S.W.2d 75, 326 Mo. 342; Felden v. Horton & Coleman, 135 S.W.2d l. c. 118, 234 Mo.App. 421; Smith v. Zukoski Mercantile Company, 14 S.W.2d 470, 223 Mo.App. 743; Reed v. Sensenbaugh, 86 S.W.2d 389, 229 Mo.App. 883; Barrentine v. Dierks Lumber & Coal Company (Ark.), 181 S.W.2d 485; Jacqueminatal v. Turner & Segmour Mfg Co. (Conn.), 103 A. 115; Schmoll v. Weisbrod & Herrs Brewery Co., 89 N. J. 150, 97 A. 723; Stone v Blackmer & Post Pipe Company, 27 S.W.2d 459, 224 Mo.App. 319. It is not necessary to cite authorities to establish the principle that the phrases "out of" and "in the course of" are not synonymous, but are independent of each other; that proof of one does not necessarily establish the other; and the inclusion of both elements in the act makes it obligatory upon the claimant in meeting his burden of proof to establish that the injury arose not only "in the course of" the employment, but also "out of" the employment as well. Metting v. Lehr (supra), in defining the phrases "out of" and "in the course of," said: "It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence." In the case of Felden v. Horton & Coleman (supra), the Court of Appeals said: "It is not enough for the claimants to say that the accident could not have happened if deceased had not been engaged in the employment or if he had not been in that particular place. The burden of proof was upon claimants to show that the accident arose because of something deceased was doing in the course of his employment, and because he was exposed by the nature of his employment to some peculiar danger not common to the neighborhood. "Out of" as used in the Act involves the idea that the injury is in some sense due to the employment, and the claimants must show a causal connection between the death of Mr. Felden and his employment. The evidence and all favorable inferences are to the contrary." This court in Cassidy et al. v. Eternit, Inc., et al., (supra), reversed the award of the Commission and the judgment of the Circuit Court and in so doing used the following language, pertinent to the case at hand: "An injury arises 'out of' the employment when there is a casual connection between the conditions under which the work is required to be performed and the resulting injury, and that an injury to an employee arises 'in the course of' his employment when it occurs within the period of his employment at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing some work incidental thereto. "The accident under consideration occurred at a place where he had gone, not to receive his pay check, but to get information concerning his paycheck, at the instance of one who was not authorized to so direct him. And, while the accident occurred within the period of his employment, it did not occur at a place where his services required him to be, nor while he was performing any duty of his employment. Nor was there a causal connection between the conditions under which his work was required to be performed and the accident which resulted in his death. It follows that the evidence does not warrant the finding that the accident arose out of and in the course of his employment, within the meaning of the Compensation Act, and that the award of death benefits in this case cannot be permitted to stand." In the case of Reed v. Sensenbaugh (supra), the court said: "The fact that the employee was on the premises during the regular working hours and was injured will of itself form no basis for the presumption that the accident arose out of and in the course of his employment. If such accident is the result of a hazard unconnected with the prosecution of the work in hand, then there is a lack of that causal connection which would bring it within the terms of the act." Smith v. Zukoski Mercantile Company (supra), in defining these terms used the following language: "An accident arises 'out of the employment' when there is apparent to the rational mind upon consideration of all the circumstances a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of the employment.'" Measured by the tests as outlined by these cases, it is clear that the injuries complained of could not have been seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment. The Supreme Court of Arkansas, in the case of Barrentine v. Dierks Lumber & Coal Company (supra), announces the correct doctrine in regard to this case. The claimant while engaged in his work lost a finger and later a co-employer suggested that the loss of the finger would keep him out of the army. Exception was taken to this remark resulting in a fight and then later as a result of this trouble claimant was assaulted and injured. Under a statute similar to our statute in discussing the meaning of the words arising "out of" and "in the course of" employment, the court said: "The question presented is whether appellant's alleged injuries arose out of and in the course of employment. To be compensable, the alleged injury must not only arise in the course of the employment, but also out of the employment -- both elements must be present. We think it clear, on the facts presented, that the injury which appellant received at the hands of his co-employee, Parker, grew out of and was the result of a fight, or a personal encounter, between these two employees, provoked by appellant, which had no causal connection with appellee's employment. Appellee, employer, was not interested in appellant's personal difficulties with a co-employee." In the case of Stone v. Blackmer & Post Pipe Company (supra), the court said: "An accident, therefore, which results in the course of the employment, may also be said, we think, to arise out of such employment, when it results as an incident to the character of the business which is being carried on. On the other hand, if such accident is the result of a hazard unconnected with the prosecution of the work at hand, then there is a lack of that causal connection which would bring it within the terms of the act." It certainly cannot be contended that the injuries claimant received were results as an incident to the character of the business which is being carried on, but the injuries clearly appear as a result of a hazard unconnected with the prosecution of the work at hand, which means there is a lack of that causal connection which would bring his cause of action within the terms of the act. In the case of Jacqueminatal v. Turner & Segmour Mfg. Co. (supra), the facts were as follows: The company furnished ladles and each caster desired to get a ladle as soon as possible, as he would get through his work earlier. O'Shargnessey asserted a right over Jacquemen's ladle which he did not have. A quarrel followed and a fight. The court said: "These were purely personal. They had no relation to the special conditions of the business so far as the finding shows. The fight occurred in the course of employment, but it did not originate in it or arise as a consequence or incident of it. These men turned temporarily from their work to engage in their own quarrel. Nothing their employer required of them would necessarily provoke them to a quarrel, nor could this have been reasonably anticipated. The fact that employees sometime quarrel and fight while at work does not make the injury which may result one which arises out of the employment. There must be some reasonable connection between the injury suffered and the employment or conditions under which it is pursued." [Schmoll v. Weisbrod and Herrs Brewery Co. (supra).] A collector for a brewery was shot one night while making a delivery. The motive for the shooting was unknown. The court said: "If the shooting had been for the purpose of robbery, then it could be said to be incidental to the employment but since there was no motive shown, no robbery having been committed, the shooting might have been in revenge for a past wrong or something foreign to the employment. 'Out of' involves the idea that the injury is in some sense due to employment. A causative danger peculiar to the work, an injury fairly traceable to some hazard other than one to which the workmen would have been equally exposed though in a different employment." In the instant case it will be noted that if the shooting arose "out of" the question of the stealing of gasoline, it is not compensable,...