Keithley v. Stone & Webster Engineering Corporation

• Decision Date: 04 April 1932
• Docket Number: No. 17452.,17452.
• Citation: 49 S.W.2d 296
• Parties: KEITHLEY v. STONE & WEBSTER ENGINEERING CORPORATION et al.
• Court: Missouri Court of Appeals

49 S.W.2d 296

KEITHLEY v. STONE & WEBSTER ENGINEERING CORPORATION et al.

No. 17452.

Kansas City Court of Appeals. Missouri.

April 4, 1932.

Rehearing Denied May 2, 1932.

Appeal from Circuit Court, Miller County; W. S. Stillwell, Judge.

Proceeding under the Workmen's Compensation Act by Earl Keithley, employee, opposed by the Stone & Webster Engineering Corporation, employer, and the Southern Surety Company, insurer. From a judgment reversing an order of the Workmen's Compensation Commission which denied compensation, and remanding the case with direction, employer and insurer appeal.

Affirmed.

Jones, Hocker, Sullivan & Gladney and Willard A. McCaleb, all of St. Louis, for appellants.

Norman & Norman, of Joplin, for respondent.

BOYER, C.

This is an appeal from a judgment of the Miller county circuit court reversing an order of the Workmen's Compensation Commission which denied compensation for an injury received by respondent. Earl Keithley was an employee of Stone & Webster Engineering Corporation, and the Southern Surety Company was the insurer of the employer. In the course of his employment, Keithley was assaulted by a co-employee, and as a result thereof the sight of his right eye was lost. A claim for compensation was duly filed against the employer and the insurer. There was no answer. The case was tried before a referee. Claimant appeared in person, and the employer and insurer appeared by their representatives. The referee found in favor of the employer and insurer and against the employee, and awarded no compensation. On application there was a review by the full commission. The final award was made by two members of the commission, the third member dissenting. It recites: "The undersigned hereby find in favor of the above employer and insurer and against the above employee and award no compensation for the above accident for the reason that employee's condition is not the result of an accident arising out of and in the course of his employment within the meaning of section 7, Workmen's Compensation Act, Laws of 1927, in that, while it occurred during the course of his employment, it is not connected with or incidental to the risk of his employment." There was no other statement of the findings of fact or rulings of law, as contemplated by section 41 of the Act (Rev. St. 1929, § 3339), shown in the record. An appeal was duly made to the circuit court, and the judgment there reversed the award of the commission, and remanded the case, with direction that the commission "hear evidence and make findings as to amount of claimant's disability." From this judgment the employer and insurer were granted an appeal to this court.

The substance of appellants' contention is that the judgment of the circuit court was wrong and the award of the commission was right because claimant did not sustain an injury by accident arising out of his employment, and that the commission, under the state of the evidence, was authorized to and did so find. Respondent insists that the facts are not in dispute, and that, upon the record of the evidence, the occurrences resulting in claimant's injury were all incidental to and arose out of the employment, and as a matter of law he is entitled to compensation. There are other questions presented by counsel in briefs and arguments, but they are all collateral to the main inquiry above indicated.

From the position of the parties it becomes essential to state the testimony somewhat in detail. But, before referring to the evidence which is said to be conflicting, it will be advantageous to state the conceded facts. Claimant, Clem Hancock, Cass Hancock, and others were employed by the Stone & Webster Engineering Corporation in construction work at Bagnell Dam. On the day in question, Keithley and Clem Hancock were engaged in their work under separate foremen, but near each other, and Cass Hancock was employed to carry water. Keithley's foreman was named Hartman. It appears this foreman had discharged a water boy that day, and at the noon hour and about the time the men were to return to work some discussion arose over it. Clem Hancock asked the foreman about it and the foreman said: "I am going to pink-slip him," meaning to give him his time or discharge him; and the foreman also said: "I'll give it to some more if I catch them sitting around." At this time Clem Hancock made a remark addressed to Keithley about sitting around so much, on account of which Keithley took offense. The men went to work near each other, and in passing, or when near together, Keithley said to Clem Hancock that the next time that remark was made he would slap Hancock's mouth. Hancock said: "Right now is a good time to slap me." Keithley slapped him, and the two men went together in a scuffle and were separated. Later on, Hancock renewed the altercation with Keithley and they were again separated and told not to fight. Shortly thereafter, Clem Hancock informed his brother, Cass Hancock, of the difficulty, and, in about ten or fifteen minutes after the first encounter, Cass Hancock approached Keithley, who was then engaged with other men carrying a large piece of timber on their shoulders, and, while so engaged, Cass Hancock struck Keithley a blow in the eye. Keithley testified that he did not know of the presence of Cass Hancock at the time, and that he was approached from the rear. Cass Hancock testified that he walked around in front of Keithley, cursed him, and then struck him. The injury from this blow to Keithley so hurt his eye that the sight thereof was almost entirely destroyed, and his other eye weakened in sympathy.

The only conflicts in the testimony pertain to the exact nature of the remark made by Clem Hancock to Keithley, and the position of Cass Hancock at the time of the last assault. Keithley testified that the foreman had discharged a water carrier for sitting down; that Clem Hancock asked him why he did it, and the foreman said "he fired him for sitting down"; that Hancock then said to Keithley: "Hear that, Shorty. You don't want to be sitting down." Clem Hancock testified: "I looked over to Shorty and said, `We'll have to quit sitting around so much.'" Keithley testified that Cass Hancock came up behind him and struck; that he was not aware of his presence. Cass Hancock testified: "As soon as the whistle blew I took the water bucket to get a bucket of water. When I came back Clem told me they got into it and the Woods boy took him off and I asked him what it was he told him. He hollered for me to come back. Made me mad and I went up there and set my water bucket down. He turned around to see who it was. I stood there a few seconds. Said, `Damn you,' and I hit him." He also said that at that time Keithley had a piece of lumber on his shoulder. Other testimony is to the effect that Keithley was assisting other men to carry a large piece of lumber.

Two other employees were called as witnesses on behalf of plaintiff. One of them, Clifford Wood, was directed by the referee to tell "in a very few words" what he knew about it. Witness said: "Well, at noon, when we started to work right after the whistle blew, they was talking; that remark came up and we went on and carried this timber on there, and started to turn back to get another one, and I don't know what he said or nothing like that. I know they got into it. I heard him say he'd slap him, which he did slap him. They got around there and clinched. I separated them; told them they better not fight; I started on. They got into it again and then some other one separated them and we came on and got another timber and started back. We got about half way before we was carrying them. The water boy run up and hit him and swung with his left hand; had his water bucket in the right." Witness also said there were no words before the blow was struck; there had been no trouble before so far as he knew. "Q. Did you hear this remark that was made about him if he didn't quit laying down on the job he'd get fired? A. Yes, sir." The men were working close together, but in different gangs; he heard Keithley say, "I'll slap you," but did not hear him say why; they had carried one timber before the fight started.

G. M. Pope testified: "We was down there, setting down; started to work and Hancock said, `Shorty, if you don't quit setting down'; Hartman asked him—he asked him what made him fire the water boy. Said he was setting down on the job. Said, `Some more of you'll get fired if you don't quit setting down; fire them, too. You'll get it, too.'" "Earl said next time he said that he'd slap him in the mouth. Hancock said now was a good time. Earl did." There was no feeling between the two gangs of which he was aware; he heard the remark made by Hancock to Keithley. The referee announced: "There are several other witnesses. The claimant states that their story would be the same as the witnesses already preceding." No other witnesses were called for the claimant. The loss of the sight of an eye was conceded, and defendants called Clem Hancock and Cass Hancock.

Clem Hancock testified that the men were sitting around at the noon hour; a water boy had told him that he had been fired; Hartman, the foreman, was there. "I asked Hartman if him and his water boy had fell out. Said, `I'm going to pink-slip him.' Said `I'll give it to some more if I catch them setting around.' I looked over to Shorty and said, `We'll have to quit sitting around so much.' He carried one timber. Said, `I'm just going to slap you.' I said, `Right now is a good time to slap me,' and he did." He had had no trouble with Keithley before; he had walked with him, played pool, and joked; there were no hard feelings between the men; he did not think Keithley was angry until he said, "I mean it"; he thought nothing more about it until he went back to work; he told his brother that he and Keithley "got into it," and he saw his brother strike Keithley; he did not know whether anything was...