Dunaway v. J. C. Penney Co.
| Decision Date | 16 March 1948 |
| Citation | 209 S.W.2d 567,240 Mo.App. 61 |
| Parties | Amy Dunaway, Administrix of the Estate of Clara Brown, Deceased, (Deceased Dependent), Respondent, v. J. C. Penney Company, Inc., (Employer), Appellant, and the Employers' Liability Assurance Corporation, Ltd., (Insurer), Appellant |
| Court | Missouri Court of Appeals |
Appellant's Motion for Rehearing, to Modify Opinion and to Transfer Cause to the Supreme Court, Overruled April 16 1948.
Appeal from the Circuit Court of the City of St. Louis; Hon. William B. Flynn, Judge.
Affirmed.
G W. Marsalek and Moser, Marsalek, Carpenter, Cleary & Carter for appellants.
(1) In cases arising under the Workmen's Compensation Act, the burden rests upon the claimant to show that the accident arose both out of and in the course of the employment. Stone v. Blackmer & Post Pipe Co., 224 Mo.App. 319, 322, 27 S.W.2d 459; Ulman v. Chevrolet-St. Louis Division G. M. C., 349 Mo. 906, 163 S.W.2d 778; Miller v. Ralston-Purina Co., 341 Mo. 811, 816, 109 S.W.2d 866. (2) Liability cannot be established by showing simply that the accident occurred on the premises of the employer, at or near the regular place of service. A further showing is required. Smith v. Levis-Zukoski Merc. Co., 223 Mo.App. 743, 751, 14 S.W.2d 470; De Moss v. Evens & Howard Fire Brick Co., 225 Mo.App. 473, 478, 37 S.W.2d 961. (3) The purpose and intent of the deceased employee in going onto the stack of boxes is left entirely in the realm of speculation and conjecture. His presence on the stack is unexplained. An award based solely upon guesswork, speculation and conjecture should not be permitted to stand. Smith v. Levis-Zukoski Mercantile Co., supra; Miliato v. Jack Rabbit Candy Co. (Mo. App.), 54 S.W.2d 779, 782; Hebbeler v. St. Louis Public Servce Co. (Mo. App.), 72 S.W.2d 130, 133; Muesenfechter v. St. Louis Car Co. (Mo. App.), 139 S.W.2d 1102; De Moss v. Evens & Howard Fire Brick Co., 225 Mo.App. 473, 37 S.W.2d 961; Elliott v. Payne, 293 Mo. 581, 599, 239 S.W. 851; Allison v. Eyerman Construction Co. (Mo. App.), 43 S.W.2d 1063.
James H. Connor, Richard K. Nalley and Geo. O. Durham for respondent.
(1) There was not only evidence sufficient to establish that there was an accident and that the accident arose in the course of decedent's employment by the appellant, but such facts were undisputed and admitted by the appellant. 3764, 3691, 3695 (c), R. S. 1939. It was only necessary to offer evidence affording a reasonable basis for the conclusion that the death arose out of something intimately connected with the employment. McCalik v. Planters Realty Co., 144 S.W.2d 158; McCoy v. Simpson (Sup.), 139 S.W.2d 950; Conyers v. Krey P'k'g Co., 194 S.W.2d 749. (2) That accident and death arose out of the employment was not only established by direct and by circumstantial evidence, it was in effect admitted by the employer and adopted as a basis for the charge that deceased was guilty of violating safety regulations. Having adopted and advanced the theory below that deceased was opening or closing a window and thereby violated a safety regulation, the employer may not on appeal deny it. Stoll v. Bank, 345 Mo. 582, 134 S.W.2d 97; Allen v. Purvis, 30 S.W.2d 196. It is necessary to establish a causal connection between injury and employment. It is not necessary to establish the specific task being performed at the moment. 3691, R. S. 1939; Lielich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 60. The phrase "arising out of the employment" has no reference to the manner in which the task or attempt to promote the employer's interest is made. Griffin v. Anderson Motor Service Co., 237 A. 855, 59 S.W.2d 805. If the employee's effort is to carry out the employer's interest it is sufficient to establish causal connection between employment and injury. A severe construction of the facts against the employee will not be made. O'Dell v. Lost Trail, 339 Mo. 1108, 100 S.W.2d 289; Carlton v. Henwood, 232 A. 165, 115 S.W.2d 172. The chapter protects employees in and about the place of employment and performing services generally for the employer. Bise v. Tarlton, 35 S.W.2d 993. Doubts must be liberally resolved in favor of the employee. Conyers v. Krey P'k'g Co., 194 S.W.2d 749-751. Circumstantial proof is sufficient. Zimmerman v. Goodfellow Lumber Co., 56 S.W.2d 608; Tralle v. Chevrolet Motor Co., 230 A. 535, 92 S.W.2d 966. Under the undisputed facts a presumption arose that the deceased was in good faith undertaking to earn his wages and promote his employer's interest. Bradshaw v. Metropolitan Life Ins. Co., 110 S.W.2d 834; Brigham v. Produce Co. (Sup.), 220 S.W. 911. (3) The award was supported by the evidence. Oswald v. Caradine Hat Co., 109 S.W.2d 893.
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 Clara Brown, widow of David Brown, who, at the time of the injury which resulted in his death, was employed by appellant J. C. Penney Company, Inc.
The claim alleged that, "Employee was engaged in the usual course of his employment, and in attempting to close a window over the cobblestone driveway at the east end of the employer's building he accidentally fell to the driveway suffering a fractured skull which resulted in his death a short time later."
Employer and insurer, in their answer, denied that the employee's injury and death arose out of or in the course of his employment, and further alleged that, at the time of the accident, said employee was violating a distinct, stated order or rule of the employer.
At the hearing it was agreed that all parties were within the terms of the Missouri Workmen's Compensation Act; that the employer had notice of the accident; that the claim was timely filed; that the average weekly wages of said employee were $ 36.52; and that the widow was 54 years of age.
The evidence showed that the J. C. Penney Company, Inc. maintains a large warehouse in the city of St. Louis. A brick-paved driveway a block long runs through the building from Poplar Street on the south to Spruce Street on the north. One side of the enclosed driveway is bounded by an exterior wall of the building. In this wall are several large windows. On the day David Brown was injured, and for sometime previous, cartons of dry goods had been stacked against the wall. The cartons were of pasteboard, or corrugated paper, approximately thirty inches wide, and were stacked in a triangular shape, with the successive layers or tiers of cartons receding from the ends of the next lower tier. The window, where the accident to David Brown occurred, was about 12 feet above the level of the driveway, and the cartons were stacked to about the same height.
David Brown, the deceased employee, was a floor monitor or porter. His duties included sweeping up, cleaning, dusting, and opening and closing windows when necessary. He was assigned to the first floor of the warehouse, and worked from 9:00 a. m. to 6:00 p. m., with an hour for lunch.
The employer furnished window poles for opening and closing the windows. The poles were approximately 10 feet long, and had a hook on the end. In order to close a window, it was necessary to put the hook into a ring on the pivoted panes and shove. A man of average height could insert the hook into the top windows from the floor level. However, at times, when cartons were stacked in front of the windows, it was difficult to reach the window rings with the hook on the window pole. In such event, the employer had ladders of various lengths for use by the porters in opening and closing the windows. The porters were instructed to lean the ladder against the stack of cartons, mount the ladder, and, with the aid of the window pole, open or close the window. Window poles, with hooks, and ladders of various lengths, were available at the time of the accident.
John Gerke was department manager, in charge of the receiving and shipping departments at the warehouse in question, and David Brown worked under his supervision and control.
Some time prior to the fatal accident to David Brown, Mr. Gerke had seen footsteps on the cartons which were stacked beneath the windows. At the time Mr. Gerke suspected that Brown and Mayo, the other floor monitor employed there, had been climbing on the boxes to open and close the windows. He asked Brown and May if they had climbed on the boxes, but neither of them would admit having done so. Mr. Gerke then warned them not to walk on the cartons to open and close the windows, and threatened them with discharge if they did. He did not post any notice against such practice prior to the time Brown was injured.
Mayo testified that he had never climbed onto the stack of cartons to open and close windows, and had never seen Brown at any time do so.
On the afternoon of August 23, 1946, at about 3:45 p. m., Aaron Morris, a chauffeur for Columbia Terminals, while walking north in the driveway in said warehouse, saw a man, whom he afterwards learned was David Brown, standing, with his back to the window, on top of a stack of cartons. The cartons were under a window on the east side of the driveway, and were about level with the bottom of the window. Morris turned his head the other way, and continued to walk. He then heard a noice, and as he turned his head toward the stack of cartons, he observed Brown falling through the air, and saw him land on the driveway. Morris ran to him, and when he saw he could give him no help, ran to get the boss.
Mr Gerke and the company nurse came to the scene. Mr. Brown was unconscious and bleeding profusely from the head. He was immediately taken to a hospital, and died shortly...
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