Holley v. St. Joseph Lead Co.
| Citation | 201 S.W.2d 941,356 Mo. 390 |
| Decision Date | 21 April 1947 |
| Docket Number | 39964 |
| Parties | Naomi Holley (Claimant), Plaintiff-Appellant, v. St. Joseph Lead Company (Employer), Defendant-Appellant |
| Court | United States State Supreme Court of Missouri |
Rehearing Denied May 12, 1947.
Appeal from St. Francois Circuit Court; Hon. Norwin D Houser, Judge.
Affirmed.
Parkhurst Sleeth, John S. Marsalek and Moser, Marsalek Dearing & Carpenter for appellant St. Joseph Lead Company.
(1) The burden rested upon the claimant to show, by competent and substantial evidence upon the whole record, that the accident which resulted in her husband's death arose out of and in the course of his employment. Const. of Mo. 1945, Art. V, Sec. 22; Missouri Administrative Procedure Act, S.B. 196, 63rd General Assembly, approved July 1, 1946; Sec. 3691, R.S. 1939; Wood v. Wagner Electric Co., 355 Mo. 670, 197 S.W.2d 647; Miller v. Ralston Purina Co., 341 Mo. 811, 109 S.W.2d 866; Stone v. Blackmer & Post Pipe Co., 224 Mo.App. 319, 27 S.W.2d 459. (2) An injury arises out of the employment only when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Cassidy v. Eternit, 326 Mo. 342, 32 S.W.2d 75. (3) In cases where injury occurs as the result of assaults, horseplay and the like, the employer is not liable if the injured employee instigates or voluntarily and actively participates in the affair. In such a situation, the injury does not arise out of the employment, but on the contrary arises out of the assault or horseplay, which constitutes a deliberate departure from and abandonment of the employment. Hager v. Pulitzer Publishing Co., 17 S.W.2d 578; Tabor v. Midland Flour Milling Co., 237 Mo.App. 392, 168 S.W.2d 458; Staten v. Long Turner Const. Co., 185 S.W.2d 375; Plouffe v. American Hard Rubber Co., 207 N.Y.S. 373, 211 A.D. 298; Derhammer v. Detroit News, 229 Mich. 658, 202 N.W. 958. (4) The mere fact that Holley and Daugherty, if they had followed the proper course of their duty, would have descended on the hoist at about the time the accident occurred, is a mere coincidental circumstance, which does not alter the essential character of the conduct in which Holley was actually engaged. McMain v. J.J. Connor & Sons Const. Co., 337 Mo. 40, 85 S.W.2d 43; Mullally v. Langenberg Bros. Grain Co., 339 Mo. 582, 98 S.W.2d 645. (5) Claimant is not entitled to recover for the additional reason that the uncontradicted evidence shows that at the time of the accident Holley was deliberately violating specific orders of the employer not to ride on the hoist alone, and not to engage in horseplay on the premises. Miliato v. Jack Rabbit Candy Co., 54 S.W.2d 779; Kasper v. Liberty Foundry Co., 54 S.W.2d 1002. (6) Upon the entire record it is manifest that the injury did not arise out of the employment, but arose out of and was attributable to the water fight in which the employee voluntarily engaged. The Commission's inference that the injury arose out of the employment is forced and artificial. The award should be reversed because the finding is against the overwhelming weight of the evidence. Authorities, Point (1), supra; Brooks v. Mo. Pac. R. Co., 98 Mo.App. 166, 71 S.W.2d 1083; Darby v. Henwood, 346 Mo. 1204, 145 S.W.2d 376; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601. (7) The award of $ 11,646.80 is excessive, and is not supported by any evidence in the record. The employee had been working for the employer for over one year next prior to the accident. While he was temporarily absent from work on occasions during this time, the contract of employment continued without interruption. During the year he received $ 2,451.15 as wages. His average weekly earnings were $ 47.14. If claimant is entitled to recover, the amount due her is 200 x $ 47.14 plus $ 150.00 as burial expense, or a total of $ 9,578. Secs. 3710(a), 3709(b), 3695 (a), R.S. 1939. (8) An injury arises out of the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Cassidy v. Eternit, Inc., 326 Mo. 342, 32 S.W.2d 75; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128. (9) In claimant's brief it is asserted that the injury was caused by a failure on the part of the employer to comply with Section 14381, R.S. 1939, and that on this account the Commission should have awarded claimant a 15% increase in the award, under Section 3691, R.S. 1939. The means of signaling between the bottom and top of the shaft had no influence upon the accident. (10) The section in question has been construed as a statutory expression of the elementary common law rule requiring the employer to exercise reasonable care to maintain the cage in a reasonably safe condition. It does not make the employer an insurer, and liability under it would rest upon a finding of negligence. Ronchetto v. Northern Central Coal Co., 179 Mo.App. 215, 166 S.W. 876; Barron v. Missouri Lead & Zinc Co., 172 Mo. 228, 72 S.W. 534. (11) The employer is not required, in the exercise of ordinary care, to provide any particular kind of appliances, and the fact that other appliances designed for the same purpose may be in use at other places is no evidence that the employer was negligent, nor does the fact that under the peculiar circumstances of any given case, a different appliance might have proved more effective, convict the employer of negligence in using the appliance the employer adopted. Chrismer v. Bell Telephone Co., 194 Mo. 89, 92 S.W. 378.
Victor B. Harris and Harold C. Hanke for plaintiff-appellant Naomi Holley.
(1) In reviewing an award made by the Division of Workmen's Compensation, formerly Workmen's Compensation Commission, an appellate court will not substitute its own judgment for that of the Division, nor set an award aside if it is supported by competent substantial evidence. The evidence here overwhelmingly supports the finding that the accident arose out of and in the course of the employment because Holley was killed while returning to his work at the bottom of the mine shaft as required, and was using the only means available to him. Wood v. Wagner Electric Corp., 197 S.W.2d 647; Metting v. Lehr Const. Co., 226 Mo.App. 1152, 32 S.W.2d 121; Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Rex-Pyramid Oil Co. v. Magan, 287 Ky. 459, 153 S.W.2d 895; Brown v. Vacuum Oil Co., 171 La. 707, 132 So. 117; Torosian v. Industrial Accident Comm., 11 Cal.App. (2d) 204, 53 P.2d 384. (2) Even if the horseplay contributed to the accident, it still arose out of and in the course of Holley's employment, because the accident happened as a result of conditions created by the employment which had existed for a long time. In other words, the injury arose from conditions which had become an incident to the employment. Tabor v. Midland Flour Milling Co., 237 Mo.App. 392, 168 S.W.2d 458; Gilmore v. Ring Const. Co., 227 Mo.App. 1217, 61 S.W.2d 764; Blaine v. Huttig Sash & Door Co., 105 S.W.2d 946; Conklin v. Kansas City Pub. Service Co., 226 Mo.App. 309, 41 S.W.2d 608; Schexneider v. General American Tank Car Corp., 5 La. App. 84; East Ohio Gas Co. v. Coe, 42 Ohio App. 334, 182 S.W. 123. (3) If horseplay has become customary and habitual so that the employer knew, or should have known, about it, an accident resulting from horseplay arises out of and in the course of employment. Gilmore v. Ring Const. Co., supra; Maltais v. Equitable Life Assur. Soc., 40 A.2d 837. (4) When injuries result from the act of another employee whose proclivities for horseplay are known, or should have been known, to the employer, the accident arises out of and in the course of the employment. Blaine v. Huttig Sash & Door Co., supra; Peterson's Case, 138 Me. 289, 25 A.2d 240. (5) The violation of a rule will not defeat recovery unless the rule is enforced and unless the act completely takes the employee outside the sphere of his employment and causes the accident. Here neither of the alleged rules were enforced, nor did the alleged violations take Holley outside the sphere of his employment or cause the accident. Metting v. Lehr Const. Co., supra; Wamhoff v. Wagner Electric Corp., 187 S.W.2d 865; Wamhoff v. Wagner Electric Corp., 190 S.W.2d 915; Peterson's Case, supra. (6) Employer's cases cited under Point (5) do not show that Holley's accident did not arise out of and in the course of his employment. Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601. (7) The employer's contention that the award is excessive is wholly untenable because it completely ignores. The undisputed fact that Holley changed from one grade to another during the year preceding his accident, and Section 3710 (a), R.S. 1939, is not applicable where employee has been changed in grade. Sec. 3710, R.S. 1939; Mossman v. Chicago & Southern Airlines, 326 Mo.App. 282, 153 S.W.2d 799; Greenan v. Emerson Electric Mfg. Co., 191 S.W.2d 646; Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046. (8) The employer admitted and the evidence is undisputed that Holley was absent 56 days during the year for illness and other unavoidable cause, and Section 3710 (a) is not applicable where the employee's work was interrupted by absence due to illness or any other unavoidable cause. Secs. 3709, 3710, R.S. 1939. (9) The death of Clifford Holley was caused by the failure of the employer (St. Joseph Lead Co.) to comply with Section 14831, R.S. 1939, which provides in substance that the operator of a mine shall provide safe means of hoisting and lowering persons into a mine shaft, and therefore the award should be increased by fifteen per cent. Secs. 3691, 14831, R.S. 1939.
Westhues, C. Bohling and Barrett, CC., concur.
Plaintiff, Naomi Holley, was...
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