Kendrick v. Sheffield Steel Corporation
| Decision Date | 08 December 1942 |
| Docket Number | No. 26234.,26234. |
| Citation | 166 S.W.2d 590 |
| Parties | KENDRICK v. SHEFFIELD STEEL CORPORATION. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; James E. McLaughlin, Judge.
"Not to be reported in State Reports."
Proceedings under the Workmen's Compensation Act by Joseph Kendrick, employee, against Sheffield Steel Corporation, employer and self-insurer. From a judgment affirming an award of Workmen's Compensation Commission in favor of the employee, employer appeals.
Reversed and remanded with directions.
Edward C. Friedewald, of St. Louis, for appellant.
W. Jack Moore and Ernest E. Baker, both of St. Louis, for respondent.
BENNICK, Commissioner.
This is a proceeding under the Workmen's Compensation Law, Secs. 3689-3766, R.S.Mo.1939, Mo.R.S.A. §§ 3689-3766, the appeal being by the employer and self-insurer from the judgment of the circuit court affirming an award in favor of the employee.
The question decisive of the appeal is whether the specific facts found by the commission support its conclusion that the employee was injured by accident arising out of and in the course of his employment so as to entitle him to compensation for any resulting disability.
The employee is one Joseph Kendrick, who was admittedly engaged in the service of the employer, Sheffield Steel Corporation, at the time of the happening of the alleged accident upon which the claim for compensation is based.
In determining the question of whether the facts found by the commission support the award (which involves the question of what it was that the commission actually found regarding the manner in which the injury was received), the only testimony to be considered is that of Kendrick himself, since there is no pretense that any of the other evidence aided his case upon the question of the occurrence of any unexpected or unforeseen event amounting to an accident within the contemplation of the act. On the contrary, the testimony of all the men who were employed on the immediate job with Kendrick (although contradicted by that of Kendrick himself) was to the effect that at no time during the day in question did he make any mention of being hurt, and that the first that any of them knew about his claim of injury was on some later occasion when he made the statement that he had wrenched his back.
Kendrick was employed with one Lisac in handling pieces of channel iron which were being passed through shears to be cut into proper lengths. Each piece of such channel iron was nine inches in width, slightly more than forty feet in length, and weighed approximately eight hundred pounds. The pieces themselves would come through the shears end first and then pass on to rollers, where Kendrick and Lisac, using hooks whenever such heavy materials were being cut, would pull them off of the rollers and down upon the ground, where they would be stacked up in piles in orderly fashion. Kendrick would pull on one end of each bar while Lisac pulled on the other end; and in exerting their force it was the practice for the men to "watch each other" so as to avoid having a bar fall crossways on the pile.
Kendrick's claim for compensation was drawn upon the theory that as he was pulling upon a piece of the channel iron, "one end slipped while holding one end of it, causing him to be thrown in an unusual strain", which theory, if borne out by evidence which was found to be true by the commission, would undoubtedly have supported his right to an award in so far as concerned the necessity for proof of an unexpected or unforeseen event happening suddenly and violently. He insists in this court that he had such evidence, and that it did amply support the conclusion of the commission that his injury was by accident arising out of and in the course of his employment. The employer contends, on the other hand, that not only was there no evidence of any sudden or violent occurrence producing the injury for which Kendrick seeks compensation, but that even if it should be wrong in making that assertion, the commission in any event disbelieved and rejected any such evidence in making its specific findings regarding the manner in which the injury was received.
On his direct examination, Kendrick testified that when he and Lisac prepared to move the particular channel iron he was engaged in handling when injured, "his [Lisac's] end must have slipped off, with my end wedging in between the roller line and stuck, and that was when the accident occurred, by me trying to get that end out of there where it was wedged and trying to pull it over there, and just at that time it felt like something hit me in the back".
In other words, while Kendrick was unquestionably of the opinion that Lisac's end of the bar had slipped and fallen so as to cause his end to become wedged or jammed against the rollers, his testimony seems to leave no room for doubt but that his injury was received, not at the moment Lisac's end of the bar slipped off the rollers, and because of any sudden and unusual strain thereby thrown upon him, but rather after the slipping had occurred, and while he was exerting force in trying to loosen his end of the bar where it was wedged against the rollers. Moreover, his succeeding testimony on direct examination was all to the same effect, that is, that as he was attempting to release his end of the bar after it had become wedged against the rollers, he felt the injury as though something had struck him in the back.
On cross-examination by the employer's counsel, Kendrick's testimony was even more definite and positive that this was the manner in which his injury had been received. Alluding to his deposition that had previously been taken, counsel reminded him that he had testified that the bar was already off the table, and instead of being straight, was crossways, on the pile, to which Kendrick answered, "That is right." Counsel then inquired whether it was not as he stooped over to put the bar straight on the pile that he felt a sharp pain in his back, and again Kendrick answered, "That is right."
Recalled on redirect examination, Kendrick once again reiterated that the piece of channel iron slid off the table and became wedged between the roller line and the stack; that it became necessary for him to pull the bar "off of there"; and that "that is what caused the injury". Thus far his version of the occurrence was entirely clear — that his injury was...
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