Hebbeler v. St. Louis Public Service Co.

• Decision Date: 05 June 1934
• Docket Number: No. 23134.,23134.
• Parties: HEBBELER et al. v. ST. LOUIS PUBLIC SERVICE CO. et al.
• Court: Missouri Court of Appeals

72 S.W.2d 130

HEBBELER et al. v. ST. LOUIS PUBLIC SERVICE CO. et al.

No. 23134.

St. Louis Court of Appeals. Missouri.

June 5, 1934.

Rehearing Denied June 19, 1934.

Appeal from St. Louis Circuit Court; Clyde C. Beck, Judge.

"Not to be published in State Reports."

Proceedings under the Workmen's Compensation Law by Louise Hebbeler and another, dependents of George W. Hebbeler, deceased employee, against the St. Louis Public Service Company, and Henry W. Kiel, as receiver thereof, employers. From a judgment of the Circuit Court affirming an award of the Workmen's Compensation Commission in favor of the dependents, the employers appeal.

Judgment of the Circuit Court reversed, and the cause remanded with directions.

T. E. Francis, B. G. Carpenter, and S. G. Nipper, all of St. Louis, for appellants.

Holland R. Polak and Bartley & Mayfield, all of St. Louis, for respondents.

BECKER, Judge.

This is an appeal from the judgment of the circuit court of the city of St. Louis, affirming an award made by the Missouri Workmen's Compensation Commission in favor of respondents who were the dependents of the deceased employee, George W. Hebbeler, and against the appellants, St. Louis Public Service Company, a corporation, and its receiver.

George W. Hebbeler was an electrical expert employed by defendant company as a substation operator, and on the morning of August 17, 1932, while working on the night shift from 11 p. m., to 7 a. m., at the substation located at Spring and North Market streets in the city of St. Louis, he met his death by electrocution. Hebbeler's widow and son in due course prosecuted their claim before the Missouri Workmen's Compensation Commission.

The only issue made by the defendant employer was that the death was not the result of an accident arising out of and in the course of his employment.

The testimony shows that the substation in which Hebbeler was working at the time he met his death, was a single story building, either a part of or at least attached to and in the rear of a three-story building which faced on Spring avenue; that on the ground floor of the three-story building there was a center entrance to a stairway running to the second and third floors thereof; and that the space on the first floor to the south of this entrance was a store, and the space to the north of the said entrance was what is termed a "trouble station" or "garage" belonging to the defendant company. Originally, the said garage or trouble station was used for the storing of emergency automobile trucks which were maintained by the employer for making emergency repairs on its street cars and trolley wires. This garage or trouble station was under the supervision and direction of the employer's transportation department, and under the management of a Mr. Horton. In this trouble station, attached to the north wall thereof, was an apparatus known as a battery charger, installed for the purpose of charging the batteries of such of the emergency automobile trucks as might be located or garaged at this particular trouble station. On the second floor of this part of the building were some offices, and on the third floor were two apartments which were occupied by employees of the defendant. In the rear of this front three-story building was a large high vaulted single story structure which was one of twenty-five substations of the defendant, in which were installed a number of generators, rotary converters, transformers, and switchboards for the purpose of furnishing power to the street cars on the defendant's various divisions, and at the time in question there were employed three men known as substation operators, each of whom took care of and operated this substation eight hours each day. The duty of these substation operators required that they operate the various machines in the substation and take care of the same, together with all of the equipment therein for the purpose of furnishing uninterrupted power during certain designated hours. This, as well as the other substations of the defendant, was under the direct control and management of the power department, Walter Bryan being the general superintendent of power, and Roscoe Varble being the general foreman of the power department and directly in charge of the various substation operators. The only connection between the substation and the trouble station or garage located in the three-story building directly in front of it, was a small steel doorway. The testimony showed that the said substation operators, when not actually engaged in cleaning and oiling the machines, could use a desk which was in the southwest corner of the substation, where they could make out their reports and observe the switchboard which was built along the southern part of the wall of the substation, to note any interruption of the power supply which might occur, and to stand ready to remedy same should it occur.

The evidence shows that on the evening of August 16, 1932, Hebbeler left his home in his own automobile and went on duty at the substation at approximately 11 p. m., and was due to be relieved on the morning of August 17, 1932, at 7 a. m. At about 5:45 a. m., a colored employee, James Terrell, who served in the daytime as janitor and general handy man at this building, came on duty. As he walked through the trouble station or garage, he saw Hebbeler's body lying on the floor of the so-called trouble station immediately adjacent to the fender of his own personal automobile, and that his hands clasped two battery clips which were connected with the battery charger located on the north wall of the trouble station. On the fender and running board of Hebbeler's automobile there were polishing rags and a can of Simoniz wax. Terrell immediately called two other employees who rented living apartments on the third floor directly above the trouble station, who came down to the trouble station and saw Hebbeler's body in the position above outlined.

Claimants' evidence tended to show that deceased had in his possession a key to the small center door leading into the front or easternmost portion of the three-story building, and that he and other substation operators frequently went to their work through this door and passed through the trouble station and entered the substation through the small iron door on the west wall of the trouble station. This was not denied by the employer, but there was evidence showing that on most occasions the substation operators went to their work through the westernmost or rear door of the substation itself.

Plaintiffs' evidence also showed that on several occasions deceased had been observed, on hot nights, standing in the double garage doors at the front part of the trouble station, apparently for the purpose of getting cool.

One Theodore Reed, who was chauffeur for the president and also for the general manager of the defendant company, and who occupied an apartment on the third floor of the building in which the trouble station or garage was located, testified that he had been in the habit of garaging...