Dunnaway v. Stone & Webster Engineering Corp.

• Decision Date: 22 May 1933
• Parties: J. W. DUNNAWAY ET AL., APPELLANTS, v. STONE & WEBSTER ENGINEERING CO., EMPLOYER SOUTHERN SURETY CO. OF NEW YORK, RESPONDENT
• Court: Kansas Court of Appeals

61 S.W.2d 398

227 Mo.App. 1211

J. W. DUNNAWAY ET AL., APPELLANTS, v. STONE & WEBSTER ENGINEERING CO., EMPLOYER SOUTHERN SURETY CO. OF NEW YORK, RESPONDENT

Court of Appeals of Missouri, Kansas City

May 22, 1933

Appeal from Circuit Court of Miller County.--Hon. W. S. Stillwell Judge.

AFFIRMED.

Judgment affirmed.

Atwood Wickersham, Hill & Chilcott and T. W. Imes for appellant.

John J McNulty and David Lynn for respondent.

OPINION

SHAIN, P. J.

This is an action brought under the Workmen's Compensation Act by the parents of a minor son to recover compensation for his death.

The facts are that Orville Dunnaway, now deceased, age nineteen (19), was employed by Stone & Webster Engineering Corporation and, at the time of the occurrence of his death, he was assigned to duty on one of the employer's barges being used in the construction of the Bagnell Dam in Miller County, Missouri. The labor being performed by deceased on the day he met his death was that of boiler washing.

The work was being done on the employer's barge and the deceased was working with and in his work was under one, Duffy, another of the employees of the corporation.

It appears in evidence that it was a custom for the employees to work every day of the week. On August 17, 1930, the deceased had been working at cleaning boilers in the forenoon. When the noon hour came, the deceased and his fellow worker, Duffy, quit for dinner and having brought their lunch they ate on the barge. After eating, the evidence discloses, the deceased expressed a desire to fish; that Duffy furnished him a piece of chalk line; and, that Duffy saw deceased fasten a hook and tie a bolt on the line. It is shown that Duffy saw deceased catching grasshoppers for bait but never saw the deceased in the act of fishing. Duffy testifies that he heard deceased exclaim that he had lost his line and afterwards heard him say that he would get it. Duffy testifies that thereafter he heard a noise or splash and that he went to the part of the barge where the deceased had been and saw from the bubbles or commotion of the water that the boy had fallen in the river, and that he then threw a rope out to where he saw the disturbance in the water and called for help. Others came to the rescue and by use of boat and pole and hook the boy was taken from the water on to the barge. However, all efforts to revive him failed.

The evidence discloses that it was customary for employees to take their dinner and eat same on the works. The evidence is to the effect that employers gave time off for dinner from twelve to one P. M., and that the employees did not receive pay for this time that they were off.

Based upon the fact that their minor son had come to his death in the manner above set forth, the parents J. W. Dunnaway and Mrs. J. W. Dunnaway applied to the Commission for compensation upon the grounds that their minor son, at the time he lost his life, was in the employ of Stone & Webster Engineering Corporation and that the accident, wherein the son lost his life, was one arising out of and in the course of employment.

Hearing was first had before referee Jennings of the Workmen's Compensation Commission of Missouri.

The claimants duly presented evidence of their dependence upon their minor son. Evidence of the accident and death, as above narrated, was duly introduced.

The deceased son, when taken from the water, was minus his shoes and cap. Duffy, the deceased's companion on the job, testified that he saw the shoes and hat lying on the deck. Duffy further testified that he saw a fishing line sinking when he first went to the scene.

Hearing was had before the referee at City of Damsite, Missouri, on February 9, 1931. At this hearing the following stipulation was filed.

"It is hereby agreed and stipulated by and between the parties hereto that on or about August 17, 1930, Orville Dunnaway suffered death by drowning while in the employment of Stone & Webster Engineering Corporation; both the employer and employee were operating under the Act; all liability under such Act is fully covered by the Southern Surety Company of New York. It is further agreed that the employer had notice of the death within thirty days from the date same occurred and the claim for compensation was filed within the time prescribed by law. The only question in the case at this time is as to whether or not the death was caused by an accident arising out of and in the course of his employment."

The claimants presented at this hearing that the deceased, by reason of the fact that employees were accustomed to taking their dinner on the works, was at the time of the accident in the course of his employment and that his death was incident to his employment.

At the close of all the evidence, the referee made the following award.

"The above parties having submitted their disagreement or claim for compensation for the above accident to the undersigned referee of the Missouri Workmen's Compensation Commission, and after hearing the parties at issue, their representatives, witnesses and evidence, the undersigned hereby finds in favor of the above employer and insurer and against the above dependents and awards no compensation for the above accident.

"For the reason that deceased did not suffer death from an accident arising out of and in the course of his employment.

"Attached hereto are the findings of fact and rulings of law made in connection herewith.

"Given at the City of Jefferson, State of Missouri, this 25th day of February, 1931.

"D. R. JENNINGS,

"Referee Missouri Workmen's

Compensation Commission.

"A true copy. Attest:

"WM. T. FINDLY,

"(Seal) Secretary of said Commission."

The referee in his statement and rulings of law further said:

"An accident to be a compensable one within the meaning of the Workmen's Compensation Act, must be one arising both 'out of' and 'in the course' of employment. [Metting v. Lehr Const Co. (Mo. App.), 32 S.W.2d 121.]

"The mere fact of an accident happening on the premises is not enough to form a presumption that the same arose out of and in the course of the employment. [Smith v. Levis-Zukoski Merc. Co. et al. (Mo. App.), 14 S.W.2d 470, and Stone v. Blackmer and Post Pipe Co. (Mo. App.), 27 S.W.2d 459.]

"While the accident occurred in the course of the employment it did not arise out of the employment. The deceased employee at the time he met his death by accidental drowning was doing something (namely fishing) for his own pleasure and nothing to further the interest of his employer nor as a part of the services which required his presence on the barge. [Sec. 3305, R. S. Mo., 1929.] Compensation is therefore denied. [Hager v. Pulitzer Pub. Co. et al. (Mo. App.), 17 S.W.2d 578, and Wahlig v. Grocer Co. (Mo. App.), 29 S.W.2d 128.]

"Filed December 28, 1931. O. O. Wyrick, Clerk of Circuit Court.

"Date February 25, 1931.

"Made by D. R. JENNINGS,

"Referee Missouri Workmen's

Compensation Commission.

"(Seal)

"A true copy, Attest:

"WM. T. FINDLY,

"Secretary."

On February 28, 1931, claimants filed, under the provisions of Section 43 of the Workmen's Compensation Act, an application for review of the case before the full commission. Much objection was made to granting of a rehearing. The objection was based upon the ground that the claimants were seeking to establish liability on an entirely new ground than that presented in the hearing before...