Donzelot v. Park Drug Co.

• Court: Missouri Court of Appeals
• Writing for the Court: ANDERSON
• Citation: Donzelot v. Park Drug Co., 239 S.W.2d 526 (Mo. App. 1951)
• Decision Date: 15 May 1951
• Docket Number: No. 28137,28137
• Parties: DONZELOT v. PARK DRUG CO. et al.

Page 526

239 S.W.2d 526

DONZELOT v. PARK DRUG CO. et al.

No. 28137.

St. Louis Court of Appeals, Missouri.

May 15, 1951.

Albert I. Graff, Malcolm I. Frank, St. Louis, for appellants.

Carl A. Enger, St. Louis, for respondent.

ANDERSON, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of the City of St. Louis affirming a final award of the Industrial Commission of Missouri in favor of claimant, Catherine Donzelot, on her claim against her employer, Park Drug Company.

Appellant Park Drug Company, by lease, occupies two floors of a seven-story building numbered 1012 Lucas Avenue, St. Louis, Missouri. One of the floors occupied by the Park Drug Company is the first floor.

Several days prior to February 12, 1948, and on that day, it had been snowing, raining and freezing, and the surface of the streets and sidewalks was covered with ice and snow. This condition was general throughout the city. About 5:00 p. m. on that day, February 12, 1948, respondent started home, slipped and fell on the ice and sustained serious injury.

The issue as to where respondent fell was the subject of conflicting evidence. The door through which respondent emerged opened inwardly, and on leaving the building through said door one came immediately onto the public sidewalk. The threshold of the door was approximately six inches above the sidewalk and was four to six inches wide. At the hearing before the referee respondent testified that she slipped on this threshold. Appellants offered evidence tending to show that respondent slipped on the sidewalk several feet from the door.

Respondent testified she opened the door with her right hand, stepped through the door and slipped on the threshold of the door. She stated that it was her right foot that slipped on the step as she started to step down, then her left foot slipped as it came down on the sidewalk, and she fell out into the street.

Appellants offered in evidence statements previously made by respondent wherein she stated that she slipped and fell on the public sidewalk. These statements were made to a claims attorney employed by insurer-appellant, Globe Indemnity Company. Said statements were taken down by a shorthand reporter at the time and later transcribed. Those statements, material to the issue here, are as follows:

'Q. Where did it happen? A. Right outside the building there, the sidewalk slopes down and it was icy that night and I started to walk toward Tenth Street and I fell.

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'Q. How far had you gone from the Park Drug Company door when you fell? A. Just a few feet.

'Q. Five feet or ten feet? A. That I couldn't say.

'Q. You were outside the door there? A. Yes, I was outside going toward Tenth Street to take the streetcar. * * * Right in front of the building was where I fell, I fell right in front of that office.

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'Q. When you started to the east there, how far had you gotten? A. I don't know, you will have to go down and measure that because I couldn't tell you just where I fell. I told you I fell right in front of the place, right in front of that plate glass window.

'Q. You were out on the sidewalk, then? A. Yes, I was out on the sidewalk.

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'Q. Did you fall just as you got out? A. I walked a few feet and turned to go to Tenth Street.'

It was brought out on cross-examination of Albert D. Menefee, the claims attorney who took the respondent's statement, that the statement was taken June 11, 1948, some four months after the accident; that it was unsigned and was not taken in the presence of respondent's attorney. Respondent was not given a copy of the statement. Respondent testified that when Menefee called upon her at the time in question both he and the shorthand reporter were intoxicated. Both Menefee and the court reporter denied that they were intoxicated at the time.

There were no eyewitnesses to respondent's fall. Leo Rubinstein came through the exit door shortly after respondent fell and found her lying on the sidewalk about four or five feet north of the door. Mrs. Stella Fox stated that she came through the door shortly after five o'clock and saw Mrs. Donzelot lying about five feet in front of the door.

The referee (Lurton) found in favor of the appellants, the award stating: 'The findings of fact having disclosed that employee's accident for which she claims compensation having occurred outside of employer's premises and after she had quit work, the Division of Workmen's Compensation is without jurisdiction in this case. Therefore, compensation must be and is hereby denied.'

In the findings of fact, the referee stated:

'I further find as a fact that the testimony given by the employee in this case that her right foot slipped on the icy threshold of the entrance door of the employer's premises as she was leaving the premises after she had quit work causing her to fall, is not true.

'I further find as a fact that employee's statement given to witness Menefee and transcribed by witness Hunziker under date of June 11, 1948, on page two of said statement, Employer's and Insurer's Exhibit No. 4 in relation to the occurrence of an accident from which said employee sustained injuries and for which she now claims compensation, is true.'

The Industrial Commission, on review, found for respondent and entered an award in her favor for permanent partial disability in the sum of $16.67 per week for 92.8 weeks, and for medical aid in the sum of $75. The findings of fact by the Commission were as follws: 'We find from all the evidence that Catherine Donzelot, employee herein, sustained an accidental injury on February 12, 1948, arising out of and in the course of her employment with the Park Drug Company, resulting in 40 per cent permanent partial disability of her right (major) arm at the shoulder; that said injury was sustained when employee, while leaving work at her regular hour of departure, slipped and fell on the icy walk in front of her employer's place of business at a point so close to her employer's premises to be considered a part thereof.'

On appeal to the Circuit Court, the award of the Industrial Commission was affirmed.

In this case the Commission rejected respondent's testimony that she slipped on the threshold of the door on appellant's premises, and found that the mishap actually occurred on the public sidewalk in front of appellant's place of business. This finding of fact cannot be disturbed unless we are convinced, after considering the whole record, that the Commission could not reasonably have made such finding. We may not set aside a finding of the Commission unless it is clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647; Seabaugh's Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55; Brown v. Weber Implement & Auto Co., 357 Mo. 1, 206 S.W.2d 350; Stephens v. Spuck Iron & Foundry Co., 358 Mo. 372, 214 S.W.2d 534; Johnson v. Great Lakes Pipe Line Co., 358 Mo. 445, 215 S.W.2d 460; Karch v. Empire Dist. Elec. Co., 358 Mo. 1062, 218 S.W.2d 765.

With the foregoing rule in mind, we have carefully considered the evidence and have reached the conclusion that we should not disturb the above mentioned finding.

Our next problem is to determine whether the facts found by the Commission support the award.

Section 287.020(5), R.S.Mo.1949, 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 service.'

The facts found by the Commission clearly show that respondent was not injured as a result of an accident arising out of and in the course of her employment. Respondent was not engaged at the time in performing any duty of her employment. She was not upon the premises where the work of her employer was being carried on, and the services for which she was employed did not require her presence at the place in question. At the time of the accident respondent was not exposed to any greater hazard by reason of her employment than the public generally.

We have been cited to no Missouri case which is squarely in point. However, there are cases from other states which present facts quite similar to the case at bar and which hold that no recovery can be had under such circumstances.

In Gullo v. American Lead Pencil Co., 119 N.J.L. 484, 196 A. 438, plaintiff was employed in defendant's factory and was injured while passing along the sidewalk in front of said factory. There were two entrances to the factory on the side where the accident occurred--a small gate used only by persons on foot, and another, a large entrance with double gates used by vehicles as well as pedestrians. When respondent fell she was passing in front of the large gate, intending to use the smaller entrance. The hour was 7:50 a. m., and work began in the factory at 8:00 a. m. Held, that plaintiff's injury was not compensable. The court said, 196 A. loc. cit. 438:

'The narrated facts clearly establish both an accident and an injury to the employee, but in no sense can it be said to have arisen out of and in the course of the employment, and this because the employment in the terms of the statute had not yet begun.

'In seeking the proper construction of the statute, where is the boundry between employment and nonemployment to be found if not in the facts of the present case? Is it when the employee is within a few feet of the place of employment, but still on the public highway in no way connected therewith, and not where the distance intervening is multiplied few or many times? Is it when one starts on the journey from home to factory? If not, at what point between does employment begin? There must come a time when...