Jackson v. Euclid-Pine Inv. Co.

• Decision Date: 07 January 1930
• Docket Number: No. 21037.,21037.
• Court: Missouri Court of Appeals
• Parties: MATTIE L. JACKSON AND JAMES H. JACKSON (DEPENDENTS OF JAMES JACKSON, DECEASED), RESPONDENTS, v. EUCLID-PINE INVESTMENT COMPANY (EMPLOYER), AND EMPLOYERS' LIABILITY ASSURANCE CORPORATION, A CORPORATION (INSURER), APPELLANTS.<SMALL><SUP>*</SUP></SMALL>

22 S.W.2d 849

MATTIE L. JACKSON AND JAMES H. JACKSON (DEPENDENTS OF JAMES JACKSON, DECEASED), RESPONDENTS, v. EUCLID-PINE INVESTMENT COMPANY (EMPLOYER), AND EMPLOYERS' LIABILITY ASSURANCE CORPORATION, A CORPORATION (INSURER), APPELLANTS.^*

No. 21037.

St. Louis Court of Appeals. Missouri.

Opinion filed January 7, 1930.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED.

W.E. Moser and J.C. Jaeckel for appellants.

There is not sufficient competent evidence in the record to support the award. The evidence, after giving respondents the benefit of all reasonable inferences following thereon, is insufficient to show that the death of James Jackson resulted from an accident arising out of and in the course of his employment. Missouri Workmen's Comp. Act, sec. 3 (Laws of Mo., 1927, p. 492); Smith v. Levis-Zukoski M. Co., 14 S.W. (2d) 470; Monroe v. Railroad Co., 249 S.W. 644; Goucan v. Cement Co., 317 Mo. 919.

Dubinsky, Duggan & Stein for respondents.

BENNICK, C.

This is an appeal from the judgment of the circuit court of the city of St. Louis, affirming an award made by the Workmen's Compensation Commission. The claim was filed by Mattie L. and James H. Jackson, as the dependents of their son, James Jackson, seventeen years of age, who was killed on December 6, 1927, while in the employ of Euclid-Pine Investment Company. The commission awarded the sum of $150 for funeral expenses, and to each of the claimants the sum of $5 a week for two hundred weeks for death benefit; and in due course the case has reached this court on the joint appeal of the employer, and its insurer, Employers' Liability Assurance Corporation.

The evidence disclosed that the employer was engaged in the operation and maintenance of the Guild Hall Apartments at 4907 West Pine Boulevard, in the city of St. Louis, and that in the rear of the apartment building, and erected as an adjunct to it, was a garage large enough to house forty cars, in which the work of the deceased was done. The deceased was a night employee at the garage, and incidentally the only person on duty throughout the night, with hours from seven in the evening until seven the following morning. His duties required him to serve as general caretaker and night watchman for the garage, to wipe, clean, and wash cars, to deliver cars to patrons, to drive patrons to their homes, to return cars to the garage and park them therein, and to move cars about from place to place inside of the garage.

Shortly before seven o'clock on the morning of December 6, 1927, Wilbur Moore, who performed the same duties in the daytime as did the deceased at night, came to the garage to relieve the deceased, and called his name, but received no answer. He then went out for breakfast and returned in fifteen or twenty minutes, when he found the deceased sprawled out in the back seat of a Chrysler sedan, and barely breathing. Moore at once summoned help, and the deceased was moved out into the alley, where shortly afterwards he was pronounced dead by a physician who had meanwhile arrived upon the scene. Later an autopsy was performed in connection with the coroner's inquest, and the cause of death was found to have been carbon monoxide poisoning.

Moore testified that as soon as he entered the garage, he smelled gas, and that when he found the deceased, he observed that the doors of the car were closed, and that the motor was not running. It appears, however, that he had previously testified at the coroner's inquest, and had also said in a signed statement which he gave to one of the insurer's investigators shortly after the accident, that the motor of the car was running, and that he turned it off upon his discovery of what had occurred. He testified further before the commission that the deceased held a dusting cloth in his hand; that there was a whisk broom on the floor at his feet; that the cloth and broom were articles used by the employees in the cleaning of cars; and that the particular Chrysler sedan in which the deceased was found was one that they were supposed to dust and keep clean.

Reuben Belford, the employer's engineer, was the first person called by Moore upon the discovery of the body of the deceased, and he testified that he smelled a "terrible" odor of gas, the kind that is usually found around garages, when he opened the doors of the car. He also stated that Moore had told him at the time that he had previously opened the doors of the car, and had shut off the motor.

Thomas G. Steele, the police officer who was sent to make a report of the accident, testified that the odor of gas which he noticed on the premises was such as is ordinarily found around garages, but that it was in nowise unusual.

On the review of the case before the full commission, John B. Campbell, the owner of the car in which the deceased was found, was put upon the stand as a witness. According to his testimony, he brought the car to the garage between the hours of ten o'clock and midnight on the evening of December 5th, and he himself parked it in his allotted parking space, where it was standing the next morning when he returned to the garage to take it out for the day. Just before bringing the car to the garage, he had put ten gallons of gasoline in the tank, and after he had placed the car in the proper space, he shut off the motor. When he returned to the car the following morning, he found that the motor was not running, although the ignition was on; that the gasoline tank was practically empty, so that he was obliged to put an additional ten gallons of gasoline into it; and that the motor was warm, with the heat indicator showing a temperature for regular driving speed. He testified further that the heater was probably open in the car; that it had a tendency to throw out an odor when in use; and that when he drove into the garage the night before, he had refused to permit the deceased to park his car, and had expressly ordered him to leave the car alone.

Upon such evidence the commission found that death was due to carbon monoxide poisoning, and was by accident arising out of and in the course of the employment of the deceased; and now appellants urge two of the statutory grounds of review for our consideration, namely, that the evidence, and the legitimate inferences deducible therefrom, do not justify the finding of the commission, and that there is not sufficient competent evidence in the record to warrant the making of the award.

Section 3 of our Act (Laws 1927, p. 492) provides for compensation for the personal injury or death of an employee by accident arising out of and in the course of his employment. Following the great weight of authority, we have held that the phrases "out of" and "in the course of" the employment are not synonymous, but are independent of each other, though closely related; that the proof of one does not invariably or necessarily establish the other; and that by reason of the inclusion of both elements in the act, it is incumbent upon the claimant to prove them both, since the showing of the one without the other will not be sufficient to authorize the making of an award. [Smith v. Levis-Zukoski Mercantile Co. (Mo. App.), 14 S.W. (2d) 470.]

We have observed from the reported cases that the comprehensive definition of such terms has proved to be a matter of difficulty in every...