Gillmore v. Ring Const. Co.

• Decision Date: 22 May 1933
• Citation: 61 S.W.2d 764,227 Mo.App. 1217
• Parties: WALLACE GILLMORE, RESPONDENT, v. RING CONSTRUCTION CO. ET AL., APPELLANTS
• Court: Kansas Court of Appeals

61 S.W.2d 764

227 Mo.App. 1217

WALLACE GILLMORE, RESPONDENT, v. RING CONSTRUCTION CO. ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

May 22, 1933

Appeal from the Circuit Court of Jackson County.--Hon. Darius A Brown, Judge.

AFFIRMED.

Judgment affirmed.

Hook & Sprinkle, V. Lynn Chester and Norwin D. Houser for appellant.

D. V Downs for respondent.

OPINION

SHAIN P. J.

This is an action for compensation brought by Wallace Gillmore, respondent herein, for injury alleged as received from an accident arising out of and in the course of employment while in the employ of Ring Construction Company.

The compensation was denied in a hearing before Commissioner Shaw, of the Missouri Workmen's Compensation Commission, on May 17, 1932. A rehearing was had before the whole Commission on June 12, 1932, and again compensation was denied. The final award by the Commission being as follows:

"Submitted on Review: June 11, 1932.

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

"On review award dated June 8, 1932, is hereby affirmed. We find from the evidence that the cause of employee's injury was 'horse-play' on the part of him and a fellow employee. That prior to the time the injury occurred employee made certain statements which resulted in him later being injured. Therefore, it is our opinion that employee was the real cause of said 'horseplay,' and as the statements made had no relation whatever to the employment with the Ring Construction Company, it cannot be said that the accident arose out of his employment."

Appeal was taken by complainant to the Circuit Court of Jackson County, Missouri, and thereafter the following proceedings were had and entries made in the Circuit Court of Jackson County, Missouri, to-wit:

"On June 30, 1932, all the documents and papers on file with the Commission, together with the transcript of the evidence, the findings and award, were filed in the Circuit Court of Jackson County, Missouri. And on the 11th day of August, 1932, the said cause was assigned to Division 2 of the Circuit Court, whereupon the cause was submitted to the court on briefs.

"Thereafter, on the 83rd day of the regular May term, 1932, the Circuit Court of Jackson County, Missouri, at Kansas City, the same being the 18th day of August, 1932, the following proceedings were had and made of record before the Honorable Darius A. Brown, Judge of Division 2, in this cause:

"'The award of the Workmen's Compensation Commission is reversed for the reason that there is not sufficient competent evidence in the record to warrant the making of the award and the cause is remanded for rehearing. This ruling is made upon the authority of Keithley v. Stone Webster Engineering Corporation, 49 S.W.2d 296, and Hager v. Pulitzer Pub. Co., 17 S.W.2d 578.

"'Wherefore, it is ordered and adjudged by the court that all cost herein be taxed against the defendant, and that execution issue therefor.'"

The employer duly prosecuted appeal from the judgment of the Circuit Court of Jackson County, Missouri, and the matter is before us for review.

The facts, as disclosed by the record, are that complainant was employed by Ring Construction Company, appellant, to pour concrete on the job of construction of the new Post Office building in Kansas City, Missouri.

The work depending upon weather conditions it appears to have been a custom for the men to report about seven-thirty (7:30) A. M. for work and if conditions were not right the men would often wait around the job at the request of the foreman, until it would be ascertained as to whether conditions changed for the better. It appears to have been a custom to have a fire around which the men would assemble for comfort while awaiting the outcome of weather conditions.

The evidence discloses that the claimant reported for work at seven-thirty (7:30) A. M. December 4, 1932. He was told that weather conditions were not then right. However, the foreman told the complainant to wait around to see if the weather would not get better. The testimony shows that complainant went to the usual place around the fire to wait. The evidence discloses that there were rocks of different sizes on the ground around the place where the fire was kept. It is also shown that the ground was wet and slick. It is shown that quite a number of the men on the work were also awaiting for weather conditions and were standing around the fire. The evidence further discloses that the men were discussing, in a somewhat jocular mood, concerning some of the men working on Saturday forenoon in violation of some Union rule and upon the complainant making some remarks one of the other men grabbed and shoved him and he slipped and fell, breaking his leg. It is inferable from the evidence that the conversation was concerning work on the construction in hand.

Just how the accident occurred is shown by the following uncontradicted evidence to-wit:

"A. I was standing there, and the district council had us before the executive board for working on Saturday till noon, five of us, and they were going before the executive board, and these fellows acted so green before the executive board, and we were standing around that fire and it come up someway and they asked me, said 'Gillmore, how about it, how did you all come out the other night before the executive board?' and I said 'just so,' I said 'Well, them two boys there, they acted greener than any two boys I saw in my life,' and they s...