Davis v. Roadway Exp., Inc.

• Decision Date: 20 January 1989
• Docket Number: No. 15870,15870
• Citation: 764 S.W.2d 145
• Parties: Mary Margaret DAVIS, et al., Respondents, v. ROADWAY EXPRESS, INC., Appellant.
• Court: Missouri Court of Appeals

Page 145

764 S.W.2d 145

Mary Margaret DAVIS, et al., Respondents, v. ROADWAY EXPRESS, INC., Appellant.

No. 15870.

Missouri Court of Appeals,

Southern District,

Division One.

Jan. 20, 1989.

Kenneth T. Walter, Mann, Walter, Burkart, Weathers & Walter, Springfield, for appellant.

Jay P. Cummings, Gannaway, Fiorella, Cummings & Bennett, Springfield, for respondents.

CROW, Presiding Judge.

Roadway Express, Inc. ("Roadway") appeals from a final award allowing compensation by the Labor and Industrial Relations Commission ("Commission"). The sole issue is whether the death benefits due the dependents of a deceased employee of Roadway under The Workers' Compensation Law, chapter 287, RSMo 1978, as amended, should have been reduced by 15 per cent pursuant to § 287.120.5, RSMo 1978, which provides:

"Where the injury is caused by the willful failure of the employee to use safety devices where provided by the employer, or from the employee's failure to obey any reasonable rule adopted by the employer for the safety of employees, which rule has been kept posted in a conspicuous place on the employer's premises, the compensation and death benefit provided for herein shall be reduced fifteen percent; provided, that it is shown that the employee had actual knowledge of the rule so adopted by the employer; and provided, further, that the employer had, prior to the injury, made a diligent effort to cause his employees to use the safety device or devices and to obey or follow the rule so adopted for the safety of the employees."

The Commission, affirming (by a two-to-one vote) an award by an Administrative Law Judge ("ALJ") of the Division of Workers' Compensation, rejected Roadway's plea for reduction.

We review the Commission's award, not that of the ALJ. Richardson v. Falcon Products, Inc., 739 S.W.2d 596, 597 (Mo.App.1987); Long v. City of Hannibal, 670 S.W.2d 567, 569-70 (Mo.App.1984). Our review is governed by § 287.495, RSMo 1986, which provides:

"1. ... 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 competent evidence in the record to warrant the making of the award.

...."

The claim arose from the death of Joe Curtis Davis ("decedent"). He was operating a Roadway tractor-trailer unit on an interstate highway around 1:55 a.m., December 29, 1985, when the rig left the highway, breached a guardrail, slid down an embankment and turned over on its passenger side. Investigating officers, arriving some 50 minutes later, found decedent positioned with his legs inside the cab and his upper body outside the open passenger door, pinned to the ground beneath the door and cab. He was dead. The cab was equipped with a seat belt.

The Commission found that the rig left the highway when decedent apparently fell asleep at the steering wheel. The Commission further found that the testimony of the investigating officers and the county medical examiner who performed an autopsy on decedent established that decedent was not wearing the seat belt at the time of the accident.

The ALJ, whose findings were affirmed by the Commission, found that Roadway's evidence demonstrated that Roadway had conducted extensive training of its drivers where the use of seat belts was emphasized on numerous occasions, with a videotape on seat belts being shown to decedent only 17 days prior to the accident. Several months before the accident Roadway had adopted a company policy requiring all drivers to wear seat belts while driving Roadway equipment. The ALJ found that Roadway met its burden of proof that decedent had actual knowledge of the seat belt rule. The ALJ further pronounced Roadway's evidence sufficient to show it made a diligent effort to cause seat belts to be used.

The ALJ refused, however, to reduce the benefits by 15 per cent under § 287.120.5 because, according to the ALJ, Roadway failed to meet its burden of proving that decedent "willfully" failed to use the seat belt. The ALJ ruled:

"In this case, there was no evidence presented which showed the [decedent] either deliberately or by design did not wear a seat belt or consciously refused to wear a seat belt. On the other hand, there was evidence the [decedent] was driving the truck late at night, was fatigued, had a headache shortly before the accident, and did not have the benefit of a warning buzzer or sign in the truck to remind him to use the seat belt. I believe the more likely cause of the [decedent's] failure to wear the seat belt was inadvertance [sic] or negligence. Therefore, I find and believe after reviewing all the credible evidence that the employer failed to prove the [decedent] 'willfully' neglected to use the seat belt...."

Urging the Commission to reduce the ALJ's award by 15 per cent, Roadway maintained the ALJ's determination that Roadway failed to meet its burden of showing that decedent's nonuse of the seat belt was willful was not supported by competent and substantial evidence and was against the greater weight of the evidence. The Commission rejected that contention, stating: "We agree with the [ALJ] that there is insufficient evidence in the record to demonstrate a 'willful failure' on the part of the decedent to use a safety belt."

Roadway presented an alternative argument for reduction to the Commission, asserting that decedent's death was caused by his failure to obey a reasonable rule adopted by Roadway for the safety of its employees, i.e., that its drivers were to wear seat belts while driving Roadway equipment. The Commission noted that § 287.120.5 provides for reduction when the injury "resulted either from the employee's willful failure to use a safety device or from his failure to obey any reasonable rule adopted by the employer for the safety of its employees." It is evident the Commission assumed that where the injury was caused by the employee's failure to obey a safety rule adopted by the employer--as contrasted against the employee's failure to use a safety device provided by the employer--the employer was not required to show that the employee's violation of the safety rule was willful in order to be entitled to the 15 per cent reduction in benefits. The Commission ruled, however:

"As noted in Triola et al. v. Western Union Telegraph Co. , 25 S.W.2d 518 (Mo.App.1930), the provision regarding 'any reasonable rule' pertains to violations of rules while on the employer's premises. This provision does not contemplate violations of safety rules which might result in an accident on the highways. Although the Workers' Compensation Act has [been] subject to numerous revisements [sic] since Triola, this provision remains virtually unchanged and the Commission finds no subsequent treatment of this provision by the courts which addresses this precise point. Therefore, the Commission finds no merit in the employer's alternative contention raised here."

Roadway's brief in this appeal presents one assignment of error. It reads:

"The findings and final award of the ... Commission denying a 15% reduction in the death benefits awarded the employee's dependents are contrary to § 287.120.5, RSMo, and are not supported by competent and substantial evidence, are not supported by the facts found by the Commission, and are clearly contrary to the overwhelming weight of the evidence because:

I.

The employee's death was caused by his failure to obey the posted company rule requiring the wearing of seat belts by the road drivers while driving company trucks in that the employee was ejected from his truck because he was not wearing a seat belt and was thereby crushed to death by the weight of the truck after the employer had posted the rule, imparted actual knowledge of it and made a diligent effort to cause the employee to follow it; and

II.

The employee's death was caused by his willful failure to use the lap seat belt in his truck in that the employee was ejected from his truck because he was not wearing a seat belt and was thereby crushed to death by the weight of the truck even though the belt was easily accessible and operable, the rule requiring its use was fresh in his mind, and he knew of the potential danger in not using the safety belt."

As to paragraph "I" of the point, which we shall consider first, Roadway argues that Triola, relied on by the Commission, does not stand for the proposition that the "safety rule" provision of § 287.120.5 applies only to violations of safety rules occurring on the employer's premises. Roadway maintains the 15 per cent reduction should be applied where an employee's death is caused by his failure to obey a reasonable safety rule adopted by the employer whether the violation occurs on or off the employer's premises.

In Triola a 17-year-old employee died as a result of injuries received when a bicycle he was riding on a sidewalk was struck by a truck. The employer averred the employee at the time of the accident, was violating a reasonable safety rule adopted by the employer, which rule required employees not to ride bicycles upon city sidewalks. The employer maintained that by reason thereof the award should be reduced 15 per cent per § 3 of the Workmen's Compensation Act, Laws 1927, p. 493, which, in pertinent part, is virtually identical to § 287.120.5, RSMo 1978. ¹

Rejecting the employer's contention in Triola, the appellate court said:

"In his written opinion the trial judge held that such rules adopted by an employer, and referred to in section 3 [of the Workmen's Compensation Act], were rules...