Kaiser v. Reardon Co.

• Decision Date: 10 June 1946
• Docket Number: 39684
• Citation: 195 S.W.2d 477,355 Mo. 157
• Parties: Gertrude Kaiser and Gerald Kaiser, Appellants, v. The Reardon Company, Employer, and Great American Indemnity Company, Insurer
• Court: Missouri Supreme Court

195 S.W.2d 477

355 Mo. 157

Gertrude Kaiser and Gerald Kaiser, Appellants, v. The Reardon Company, Employer, and Great American Indemnity Company, Insurer

No. 39684

Supreme Court of Missouri

June 10, 1946

Rehearing Denied July 8, 1946.

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Reversed and remanded (with directions).

Albert I. Graff, Jasper R. Vettori and Malcolm I Frank for appellants.

(1) The prior written confession of Errico was admissible for impeachment purposes as well as for substantive evidence under the modern trend of decisions and is not hearsay, as Errico admitted having made the confession. Courts seek the truth and relax rules that prevent this. Pulitzer v. Chapman, 337 Mo. 298, 85 S.W.2d 400; Snowwhite v. Metropolitan Life Ins. Co., 344 Mo. 705, 127 S.W.2d 718; Sutter v. Easterly, 189 S.W.2d 284; Chicago, St. P.M. & O. Ry. v. Kulp, 102 F.2d 352; DiCarlo v. United States, 6 F.2d 364; London Guar. & Accident Co. v. Woefle, 83 F.2d 325; Craig v. United States, 81 F.2d 816; Curtis v. United States, 67 F.2d 943; 3 Wigmore on Evidence (3 Ed.), sec. 1018B; O'Malley v. St. Louis, 119 S.W.2d 785. (2) Appellants had a right to impeach and cross-examine their own witness, as he was the sole, single and only witness to the killing whom they were compelled to call, and for the further reason they had a right to rely on his previous signed confession made to the police, and were naturally surprised and entrapped by his testimony contrary to the previous confession. Mooney v. Terminal R. Assn., 352 Mo. 245, 176 S.W.2d 605; Crabtree v. Kurn, 351 Mo. 628, 173 S.W.2d 851. (3) The fact that a prior statement is made, is of itself a relevant fact, regardless of its truth or falsity, and is so admissible as an independent relevant fact. In re Thomasson's Estate, 347 Mo. 748, 148 S.W.2d 757; 31 C.J.S., p. 988, sec. 239. (4) There is ample competent evidence to support the award to appellants even if Errico's testimony is entirely disregarded as hearsay. Circumstantial evidence alone, together with all reasonable inferences, supports a finding that the accident arose out of and in the course of employment, absent contrary evidence, as such circumstantial evidence warrants the inferences drawn by the Commission. Mulcahy v. Terminal R. Assn., 123 S.W.2d 235, certiorari dismissed, 346 Mo. 65, 139 S.W.2d 939; Curtis v. St. Louis Material & Supply Co., 54 S.W.2d 736; Moss v. Evans & Howard Firebrick Co., 225 Mo.App. 473, 37 S.W.2d 961; Wills v. Berberich Delivery Co., 339 Mo. 859, 98 S.W.2d 569; Jackson v. Curtiss-Wright Co., 68 S.W.2d 715. (5) Where an employe is found injured at a place where his duties require him to be, a presumption arises that he was injured in the course of employment, and in this case the presumption was not rebutted, therefore it must prevail. McCoy v. Simpson, 346 Mo. 72, 139 S.W.2d 950; Williams v. Planters Realty Co., 160 S.W.2d 480; Macalik v. Planters Realty Co., 144 S.W.2d 158. (6) Where there is a disputed question of fact as to whether or not the accident arose out of and in the course of employment in the finding and award of the Commission is conclusive, where reasonable minds might differ and different conclusions be drawn from the evidence, the issue being one of fact for the Commission. And where the evidence warrants a finding either way, the reviewing court is bound by the Commission's finding, even though the evidence might have supported a contrary finding. O'Neil v. Fred Evens Motor Sales Co., 160 S.W.2d 775. (7) The weight of the evidence and credibility of witnesses are for the sole consideration of the Commission and the Commission is not compelled to believe a witness' testimony though not disputed. O'Neil v. Fred Evans Motor Sales Co., supra; Webster v. Boyle Pryor Const. Co., 144 S.W.2d 828; Wessel v. St. Louis Car Co., 136 S.W.2d 388. (8) Where there is sufficient competent evidence to support an award, the court on review is bound to believe the evidence in the record that supports the award and to draw all reasonable inferences therefrom favorable to the award and to disregard the evidence contradictory thereto. Kelsall v. Riss & Co., 165 S.W.2d 329; Chubb v. Skelgas Co., 346 Mo. 22, 139 S.W.2d 904; Sayles v. Kansas City Structural Steel Co., 128 S.W.2d 1046; Wamhoff v. Wagner Electric Corp., 190 S.W.2d 915.

Oliver J. Miller and Lashly, Lashly, Miller & Clifford for respondents.

(1) There was insufficient evidence in the record to support the findings of the Commission in favor of claimant, and the circuit court in reversing that finding correctly decided the case. Because the direct testimony of witness Joseph Errico, produced by claimant, is in the record, and it establishes that employee Kaiser met his death through matters not connected with his employment and not arising therefrom. Woelfle v. Conn. Mut. Life Ins. Co., 112 S.W.2d 865; DeMoss v. Evans-Howard F.B. Co., 37 S.W.2d 96; Stone v. Blackmer-Post Pipe Co., 27 S.W.2d 461. (2) There was no evidence to the contrary. The confession of witness Joseph Errico was not admissible as evidence. It was not admissible for impeachment purposes, since claimant was not entitled under the law to impeach his own witness. Dunn v. Dunnaker, 87 Mo. 597; State v. Burke, 132 Mo. 363, 34 S.W. 48; Feary v. O'Neill, 149 Mo. 467, 50 S.W. 918; Beier v. St. Louis Transit Co., 197 Mo. 615, 91 S.W. 509; State v. Gregory, 339 Mo. 133, 96 S.W.2d 47; Woelfle v. Conn. Mutual Life Ins. Co., 112 S.W.2d 865. (3) More must be shown by counsel than merely a statement by him that he was surprised, to permit an impeachment of his own witness. 70 C.J. 1033; In re Largnes Estate, 200 S.W. 13; State ex rel. Wilkenson v. Central Surety Co., 232 Mo. Mo.App. 607, 112 S.W.2d 607. (4) Even though the confession was admissible for the purpose of impeachment, it does not thereby become substantive evidence upon which the case may be made. Hand v. The Elvira, etc., Gelp, 60 Federal Cases No. 6015; Jones, Commentaries on Evidence, sec. 2415, p. 4769; Woelfle v. Conn. Mutual Life Ins. Co., 112 S.W.2d 865; Snyder v. Murray, 17 S.W.2d 639, 223 Mo.App. 671; Kennard v. McCrory, 136 S.W.2d 710, 234 Mo.App. 626; Zamora v. Woodmen of World, 157 S.W.2d 601; State v. Fitch, 162 S.W.2d 327. (5) Any relaxation of this rule is confined to prior inconsistent statements made in a deposition taken in the same case. Borrson v. M., K. & T.R. Co., 351 Mo. 214, 172 S.W.2d 835. (6) The rule that circumstantial evidence alone, together with reasonable inference, will support the finding of the Commission cannot be invoked here. Because this rule applies only in the absence of contrary evidence, and Joseph Errico's testimony supplies such contrary evidence in the record, and while this evidence may be disbelieved, it cannot be ignored. Orlann v. Laederich, 338 Mo. 783, 92 S.W.2d 190; McCoy v. Simpson, 346 Mo. 215, 139 S.W.2d 950; Fritz v. St. L., I.M. & S. Ry. Co., 243 Mo. 62, 148 S.W. 74; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31. (7) A case cannot be made on circumstantial evidence when the contrary of the fact sought to be proved can as reasonably be inferred from those circumstances. Fritz v. St. L., I.M. & So. Ry. Co., 243 Mo. 62, 148 S.W. 74; Traner v. Spharerite, 243 Mo. 10, 148 S.W. 70; Bates v. Brown Shoe Co., 342 Mo. 411, 116 S.W.2d 31. (8) The mere presence of the employee at his place of employment and his accidental injury there cannot of itself form the basis of a presumption that the injury arose out of and in the course of his employment because to so hold would be to cast the burden where it does not belong. DeMoss v. Evans-Howard F.B. Co., 37 S.W.2d 961; Smith v. Levis-Zukoski, 14 S.W.2d 470; Stone v. Blackmer & Post, 27 S.W.2d 460.

OPINION

Gantt, J.

Action for workmen's compensation. The commission found that Herbert Kaiser, an employee, now deceased, suffered an accidental injury arising out of and in the course of his employment on August 9, 1941. It made an award in favor of claimants, the widow and son five years of age, in excess of $ 7500. At the instance of the employer and insurer, the case was transferred to the circuit court for review. On review, the circuit court found that there was no substantial evidence to support the finding of the commission and reversed the award. Claimants appealed.

The material facts follow: Herbert Kaiser was an employee of the Reardon Company on Saturday, August 9, 1941, as shipping clerk. At that time Joseph Vincent Errico also was an employee of said company as a chemist. He admitted that on said date at 11:30 a.m. he shot and killed Kaiser in the shipping room of the company. At the time no other person was present in the shipping room. In other words, no one witnessed the killing. As an employee of the company Kaiser was, on August 9, 1941, in charge of the supplies, including paint, at the company's place of business. Errico is now serving a twenty year sentence in the penitentiary for the murder. Claimants called Errico as a witness. He testified as follows:

"My name is Joseph Vincent Errico, and I am the same person from whom this Commissioner, and Mr. Clifford and Mr. Vettori attempted to obtain testimony at the City Jail on two occasions. Prior to Aug. 1941, I worked at the Reardon Company. I had worked there one year as a chemist. They are located at Second and Clinton Streets, St. Louis, Missouri. I knew Herbert Kaiser, who was also employed at the Reardon Company during all the time I was there. He was the receiving clerk. To my knowledge he had been working there about eight years. I worked on Saturday occasionally. Mr. Kaiser worked on Saturday. I was not working the morning of August 9, 1941. I was out in the county at a clubhouse. We left the clubhouse about 9:30, stopping...