O'Dell v. Lost Trail

• Citation: 100 S.W.2d 289,339 Mo. 1108
• Parties: Sylvia V. O'Dell v. Lost Trail, Inc., a Corporation, Employer, and New Amsterdam Casualty Company, a Corporation, Insurer, Appellants
• Decision Date: 14 December 1936
• Court: United States State Supreme Court of Missouri

100 S.W.2d 289

339 Mo. 1108

Sylvia V. O'Dell v. Lost Trail, Inc., a Corporation, Employer, and New Amsterdam Casualty Company, a Corporation, Insurer, Appellants

Supreme Court of Missouri

December 14, 1936

Appeal from Iron Circuit Court; Hon. E. M. Dearing, Judge.

Affirmed.

Green Henry & Remmers for appellants.

(1) There being no dispute in the evidence, and no competent evidence to support the award of the commission, its finding is not binding on the court, as the question involved is one of law. Sec. 3342, R. S. 1929; Barlow v. Shawnee Inv Co., 48 S.W.2d 35; Sawtelle v. Stern Bros. Co., 44 S.W.2d 264; Maltz v. Jackoway-Katz Co., 82 S.W.2d 909. (2) Under the Compensation Act an assault resulting in an injury to an employee must arise out of his employment. (a) An assault to arise out of the employment must be connected with, pertaining to, or be incident to, the employment. Keithley v. Stone & Webster Eng. Const Co., 49 S.W.2d 296; Metting v. Lehr Const. Co., 32 S.W.2d 121; Sweeny v. Sweeny Tire Stores Co., 49 S.W.2d 205; Hagar v. Pulitzer Pub. Co., 17 S.W.2d 578; Blankenship v. Dept. of Labor, 39 P.2d 981; Davis v. Robinson, 179 N.E. 797; Scholtzhauer v. C. & L. Lunch Co., 233 N.Y. 12; Harding v. Thomasville Furn. Co., 199 N.C. 733; Schloss-Sheffield Co. v. Harris, 218 Ala. 130; Phelps v. United Carbon Co., 8 La. App. 128; McDermott v. Cab Co., 288 Pa. 394; New Amsterdam Cas. Co. v. Collins, 289 S.W. 701. (b) An injury does not arise out of the employment unless there is a causal connection between the conditions under which the work is performed and the resulting injury. De Moss v. Evens & Howard Fire Brick Co., 37 S.W.2d 961; Price v. Kansas City Pub. Serv. Co., 42 S.W.2d 51; Griffith v. Anderson Motors, 59 S.W.2d 805; Crutcher v. Curtiss-Robertson Co., 331 Mo. 169; Wahlig v. Grocer Co., 29 S.W.2d 198; Cassidy v. Eternit, Inc., 32 S.W.2d 75. (3) An injury to be compensable must be received in the course of the employee's employment. Miliato v. Jack Rabbit Candy Co., 54 S.W.2d 779; Metting v. Lehr Const. Co., 32 S.W.2d 121; McNicols Case, 215 Mass. 497.

Joseph N. Hassett for respondent.

(1) Where the facts are in dispute, as here, the finding of the commission that the deceased employee met his death by accident arising out of and in the course of his employment is a finding of fact, and is conclusive and binding on appeal if there is substantial evidence to support the award. (2) The weight and credibility of the testimony of witnesses in a compensation case is for the commission to determine. Jackson v. General Metals Refining Co., 43 S.W.2d 865; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; De Moss v. Evens-Howard Fire Brick Co., 57 S.W.2d 720; Shumate v. Am. Asphalt Roofing Co., 66 S.W.2d 949; Bolin v. Swift & Co., 73 S.W.2d 774; Wilson v. Brownfield Const. Co., 74 S.W.2d 377; Kiser v. O'Connell Painting Co., 60 S.W.2d 636. (3) In determining the sufficiency of the evidence to sustain the finding of facts by the commission, the court will look only to the evidence which is most favorable, adding thereto all reasonable inferences of fact to be drawn therefrom to support such finding, and will disregard all opposing evidence as is done in passing on a demurrer to the evidence in ordinary civil actions. Bise v. Tarlton, 35 S.W.2d 993; Hammock v. West Plains Lbr. Co., 224 Mo.App. 750, 30 S.W.2d 650; Brewer v. Ash Grove Lime & Cement Co., 223 Mo.App. 983, 25 S.W.2d 1086; Bolin v. Swift & Co., 73 S.W.2d 774; Jackson v. Aetna Bricklaying & Const. Co., 59 S.W.2d 705; Burgstrand v. Crowe Coal Co., 77 S.W.2d 97. (4) Dependent fully established her claim that deceased employee met his death by accident arising out of and in the course of his employment. Teague v. Laclede-Christy Clay Products Co., 331 Mo. 147, 52 S.W.2d 880; Keithley v. Stone & Webster, 226 Mo.App. 1122, 49 S.W.2d 296; Gillmore v. Ring Const. Co., 227 Mo.App. 1217, 61 S.W.2d 764; Beem v. Lee Mercantile Co., 85 S.W.2d 441; Stark v. Wilson, 114 Kan. 459, 219 P. 507; Martin v. Chase, 194 Iowa 407, 189 N.W. 958; Reithel's Case, 222 Mass. 163, 109 N.E. 951; Baum v. Industrial Comm., 228 Ill. 516, 123 N.E. 625; Nevick v. Railroad Co., 90 N. J. L. 228, 100 A. 234; King v. Camden Paving Co., 168 A. 167; Todd v. Easton Furniture Mfg. Co., 147 Md. 352, 128 A. 42; Spang v. Broadway Brewing & Malting Co., 169 N.Y.S. 574, 182 A.D. 443. (5) The words "arising out of and in the course of the employment," cannot be invested with a technical meaning, and are plain, ordinary and everyday words, and should be given their plain, usual and ordinary meaning, and each case involving their application should be decided upon its own particular facts and circumstances, and not by reference to some formula. Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Teague v. Laclede-Christy Clay Products Co., 331 Mo. 147, 52 S.W.2d 880. (6) Where there is doubt as to the right of compensation, that doubt should be resolved in favor of the dependent. Betz v. Columbia Tel. Co., 224 Mo.App. 1004, 24 S.W.2d 224; Pruitt v. Harker, 328 Mo. 1200, 43 S.W.2d 769; Keithley v. Stone & Webster, 226 Mo.App. 1122, 49 S.W.2d 297; Ransdell v. International Shoe Co., 329 Mo. 47, 44 S.W.2d 1; Shoute v. Gunite Concrete & Const. Co., 226 Mo.App. 388, 41 S.W.2d 629.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an appeal by defendants, employer and insurer, from a judgment of the Circuit Court of Iron County affirming an award of the Workmen's Compensation Commission of $ 7746 for the death of Emmett C. O'Dell. Both parties agree that the only issue is whether there is substantial evidence to support the finding of the commission that O'Dell's death resulted from an accident arising out of and in the course of his employment. The commission's finding of fact also stated that O'Dell "had gone to look over land for turkeys and was shot by squatter."

The employer was a corporation, in the business of raising and selling turkeys. Employer owned land in Reynolds County which it used for this purpose. O'Dell lived there and was employed in January 1933, at a salary of "$ 75.00 a month plus fifty cents for each turkey raised and sold." He was "furnished a house in which to live . . . provisions, . . . everything he could raise on the place," and an automobile truck. He "had no special hours for work," but "was supposed to be on all hours, day and night, if necessary." Employer's manager visited O'Dell in November, 1933, and informed him that turkeys might be put on a track of land in Iron County. He said: "I told him before I left I wanted him to come up in Iron County, . . . where the Egyptian Tie & Timber has 5,000 acres of cut-over land, and look that land over with the view of putting fifteen hundred birds there the following year. . . . I told him to come up here the first of the following week and contact the squatters on this land and arrange to have them take him over the place and show him where the springs and water was, . . . work out a place where we would locate these birds the following year. . . . I told him to go up there and make friends with these squatters, because they would be very valuable to use the following year in handling these birds. . . . Spend all the time necessary going over that land thoroughly." The manager also said that O'Dell "had authority to hire and pay for other help, which he thought necessary, and to charge expenses on his expense account." The manager said he brought whiskey to O'Dell; that in "a great many cases . . . you could have a few drinks with very great success in forming friendships and making contacts;" but that he "did not instruct Mr. O'Dell to take whiskey and dispense it among those squatters."

The manager left on Sunday, November 12th, and O'Dell was killed by Charles Casteel, a squatter on the Iron County land, on the morning of Wednesday, November 15th. According to defendant's evidence, O'Dell went to the land on Tuesday afternoon, had gone over part of it with Casteel, had located some springs, and had made some arrangement to come back the next day. O'Dell's wife said that on Tuesday he had been out "to get information about the people living there and how to get in there." She said that the manager's instructions were "to look the 5,000 acres over . . . to go and try to make friends with the squatters living there . . . to go early and get in a full day and to report . . . as soon as possible." She further stated that "the night preceding the death her husband left some time after midnight;" that "he took a shotgun and his dog and a saddle;" and that "he also took a .38 Colt . . . always carried that." It was shown that he held a deputy game warden's commission.

Claimant relied upon the testimony of B. H. Lorentz, who accompanied O'Dell at his request to drive his car on the morning he was shot. Lorentz said that he frequently drove for O'Dell. He said they left his house about two A. M. and drove to Ironton "where they had a sandwich and had three glasses of beer," and stayed there "around an hour and a half." He said that they did not drink any more; however, O'Dell had a bottle of whiskey. Then they drove to Casteel's place, reaching there about five o'clock. Lorentz did not know Casteel. Viewing his testimony from the standpoint most favorable to the commission's findings, the events thereafter, as he related them, were about as follows: "Mr. O'Dell sounded the horn, and a lady came to the door, and Mr O'Dell said, 'We are here a little bit earlier than we intended, but' he said, 'we would like to get some fire; it is a little cool.' . . . The house had about two rooms, the living room and the bedroom together, and the kitchen in the rear. . . . After we got in the house Mr. O'Dell said, 'We...