Kelley v. Sohio Chemical Co.

• Decision Date: 12 July 1965
• Docket Number: No. 51149,51149
• Citation: 392 S.W.2d 255
• Parties: Janet S. KELLEY, Appellant, v. SOHIO CHEMICAL COMPANY, Respondent.
• Court: Missouri Supreme Court

Page 255

392 S.W.2d 255

Janet S. KELLEY, Appellant, v. SOHIO CHEMICAL COMPANY, Respondent.

No. 51149.

Supreme Court of Missouri, En Banc.

July 12, 1965.

Rope, Shanberg & Rope, Herbert M. Rope, Sherman L. Gibson, Kansas City, for appellant.

Edgar S. Carroll, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.

EAGER, Judge.

This case was transferred here from the Kansas City Court of Appeals by our order. The opinion of that court appears at 383 S.W.2d 146. Under the practice more recently adopted opinions of the Courts of Appeals are not printed in the usual course where an application for transfer has been sustained.

After consideration, we have concluded to adopt and we do adopt the opinion of the Court of Appeals, but we shall add additional observations. We do not quote that opinion, since those interested may read it as reported. Merely for clarity, we state here that the case involves a Workmen's Compensation claim filed by a young woman who was, at the time, employed in an office maintained by Sohio Chemical Company in the Kansas City Power & Light Building in Kansas City; during the noon hour, when she was alone for forty-five minutes and while she was in an inner room of the office, she heard footsteps behind her, started to turn around and was struck on the back of the head. A little later she was found unconscious by another employee, and she was hospitalized for about two weeks. Nothing was disturbed in the office and nothing stolen. Further facts appear in the cited opinion. Compensation was denied by the Commission and that holding was affirmed by the Circuit Court.

The Industrial Commission found from all the evidence that the claimant had failed to prove that she sustained an accident arising out of her employment; that is the equivalent of a finding that the accident did not arise out of the employment, and we shall so consider it.

In their reply brief claimant's counsel rely upon the presumption stated as follows: '* * * when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment.' They cite Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165, and they say further that the evidence here did not rebut that presumption. The existence of such a presumption, under proper circumstances, is also recognized in the following cases: Toole v. Bechtel Corp., Mo., 291 S.W.2d 874; Stamps v. Century Electric Co., Mo.App., 225 S.W.2d 493; Oswald v. Caradine Hat Co., Mo.App., 109 S.W.2d 893; Duff v. St. Louis Mining & Milling Corp., 363 Mo. 944, 255 S.W.2d 792. However, neither the Mershon case nor any of the cited cases was decided on the basis of such a presumption, but on the evidence adduced; in some, the employee was dead and the claims were adjudicated on medical testimony from autopsies. The cases fairly indicate that if there is evidence of occurrences, circumstances or physical condition which show, directly or by inferences, how the injury occurred, then the matter should be and will be decided on that evidence; and that if a presumption be deemed to have arisen in such instances, it disappears, being merely a procedural invention in the first place. Toole, Stamps, Duff, Oswald, supra. When the presumption cases are analyzed they afford no basis for a recovery here; in fact, no Workmen's Compensation case actually decided on such a presumption is cited, nor have we found any.

There was direct and substantial evidence that the claimant was struck on the head by an unknown and unseen assailant who attacked for an unknown reason, and that there was no robbery or theft; indeed, there was no other crime, so far as the evidence shows. If any such presumption arose at all under these circumstances, it was rebutted by the evidence adduced, and the matter simply stood as a case of assault with the manner and circumstances affirmatively shown, if not the motive. See, on rather analogous facts, Giles v. W. E. Beverage Corp., 133 N.J.L. 137, 43 A.2d 286, aff. 134 N.J.L. 234, 46 A.2d 728, where the presumption was held not applicable because there was no 'lack of evidence.' In that case two unidentified men were seen to enter a liquor store and shoot the manager, without speaking, without committing any robbery or theft, and for no known reason. In Larson on Workmen's Compensation that holding is criticized, Sec. 11.33, because the evidence did not show 'why' the man was shot. If such were to be the rule, then it would seem that a recovery would be more of less automatic in every assault case where a motive was not actually shown, and we do not accept that reasoning.

The matter, therefore, stands on the evidence as in one sense a case of 'unexplained' assault, or as the Court of Appeals stated, a 'neutral assault,' i. e., one not shown specifically to have arisen out of the employment, or, on the contrary, to have arisen from some outside and personal circumstance or motive. But, in our view, the circumstances have been sufficiently shown by evidence to permit a reasonable inference, on the part of the finders of fact, that the assault had no connection with and did not arise out of the employment. In such a situation the burden still rests upon the claimant to show some direct causal connection between the injury and the employment. Toole v. Bechtel Corp., Mo., 291 S.W.2d 874; Stamps v. Century Electric Co., Mo.App., 225 S.W.2d 493; Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165; Reed v. Sensenbaugh, 229 Mo.App. 883, 86 S.W.2d 388; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62. Our courts have held that there may be an award of compensation if the injury was 'a rational consequence of some hazard connected with the employment.' Toole, supra. See also: Reed v. Sensenbaugh, supra; Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743; Scherr v. Siding & Roofing Sales Co., supra; Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488. But it has also been held very generally that the employment must in some way expose the employee 'to an unusual risk or injury from such agency which is not shared by the general public.' Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743; May v. Ozark Central Telephone Co., Mo.App., 272 S.W.2d 845; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62; Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488; Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296. Upon that basis the injury must have been a rational consequence of that hazard to which the employee has been exposed and which exists because of and as a part of the employment. Gregory, Toole, Scherr, Ries, supra. It is not sufficient that the employment may simply have furnished an occasion for an injury from some unconnected source. Gregory, Toole, supra; Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421.

It seems unnecessary here to distinguish those cases where unusual hazards were held to exist, Reed v. Sensenbaugh, 229 Mo.App. 883, 86 S.W.2d 388; King v. City of Clinton, Mo.App., 343 S.W.2d 185; or the cases involving the so-called street or highway hazards as applied to salesmen required to use the streets or highways regularly in their work. Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.2d 128; Beem v. H. D. Lee Mercantile Co., 337 Mo. 114, 85 S.W.2d 441, 100 A.L.R. 1044. The facts here are in nowise similar.

The Commission has found that this injury did not arise out of the employment; it could and presumably did reasonably find from the evidence, as elements of that ultimate finding, that no direct causative connection with the employment had been shown and that the employment merely furnished an 'occasion' for the assault; also that the employee was not exposed, by reason of her employment, to a hazard 'above and beyond those of the public generally,' as stated by the Court of Appeals in its opinion. We approve of the further statement of that Court, loc. cit. 149: '* * * We have concluded that the award of the Industrial Commission was supported by competent and substantial testimony and was not contrary to the overwhelming weight of the evidence.'

Certainly, compensation has been denied by our courts in prior cases where the 'hazards' were at least as great as any which could have rationally been foreseen here. Ries, Scherr, May, supra. It is unnecessary to consider the other findings of the Commission. The judgment is necessarily affirmed since we have adopted, with some elaboration, the opinion of the Court of Appeals.

HYDE, HENLEY, FINCH, JJ., and STONE, Special J., concur.

STORCKMAN, C. J., dissents in separate dissenting...