Lake v. Midwest Packing Co.

• Decision Date: 13 May 1957
• Docket Number: No. 45440,No. 2,45440,2
• Citation: 301 S.W.2d 834
• Parties: Ester Lucille LAKE, Widow, and Lawrence Edward Lake and Carol Leon Lake, Children of Deceased, Respondents, v. MIDWEST PACKING COMPANY, Inc., Employer, and Continental Casualty Company, Insurer, Appellants
• Court: Missouri Supreme Court

Page 834

301 S.W.2d 834

Ester Lucille LAKE, Widow, and Lawrence Edward Lake and Carol Leon Lake, Children of Deceased, Respondents, v. MIDWEST PACKING COMPANY, Inc., Employer, and Continental Casualty Company, Insurer, Appellants.

No. 45440.

Supreme Court of Missouri, Division No. 2.

May 13, 1957.

Warren D. Welliver, Columbia, for appellants. Alexander, Welliver & Wayland, Columbia, of counsel, for appellants.

Charles A. Powell, Jr., Macon, for respondents.

BOHLING, Commissioner.

The employer, Midwest Packing Co., Inc., and insurer, Continental Casualty Company, appeal from a judgment affirming an award under the Workmen's Compensation Act to the widow and minor children of John G. Lake, the employee, of $12,000 for the death and $371.36 for the funeral expenses of the husband and father.

The employer operates a dead animal rendering business near Macon, Missouri. John G. Lake was the employer's 'cut-up man' and died at the plant on June 27, 1954, from a heat stroke. The claim was submitted on the testimony of claimants' witnesses. The employer offered no witness. The sole contested issue is whether there was sufficient evidence to sustain the finding that the employee's death arose 'out of and in the course of his employment.' Sec. 287.120. Statutory references are to RSMo 1949, V.A.M.S. Other facts involved in an award of compensation need not be developed.

The parties are agreed: 'The applicable rule, which is invoked by the defendants, is that, if an employee, because of his duties, is exposed to a special or particular danger from the elements, such as heat, cold, lightning, or windstorm--a danger that is greater than that to which other persons in the community are subjected--an injury resulting from such exposure is compensable under the Compensation Act. If the character of the employment is such as to intensify the risk, the resulting injury is compensable. The causative danger must be peculiar to the work, and not common to the neighborhood. In other words, an injury resulting from the elements, like any other injury, to be compensable, must arise out of the employment, as well as in the course of the employment.' Kripplaben v. Joseph Greenspon's Sons Iron & S. Co., 227 Mo.App. 161, 50 S.W.2d 752[1-3]. See also Bicanic v. Kroger Grocery & B. Co., Mo.App., 83 S.W.2d 917, 922; 58 Am.Jur. 760, Sec. 260; Larson's Workmen's Compensation Law (1952), Sec. 8.41.

The first hearing was before a referee (Secs. 287.460, 287.610) and resulted in an award of no compensation. Claimants filed a timely application for review. Sec. 287.480. Thereafter additional evidence was adduced before the members of the Industrial Commission of Missouri and resulted in the award under review. It was within the discretion of the Commission to review only the evidence already taken or to hear further evidence. Waterman v. Chicago Bridge & I. Works, 328 Mo. 688, 41 S.W.2d 575, 578; Hohlstein v. St. Louis Roofing Co., Mo.App., 49 S.W.2d 226, 228; Ross v. Joplin Corp., Mo.App., 229 S.W.2d 303, 310. All the evidence in the case was before the Commission for consideration in arriving at its award.

We review the whole record, including the legitimate inferences to be drawn therefrom, in the light most favorable to the award of the Commission; and by competent and substantial evidence, and if the Commission's findings are supported not contrary to the overwhelming weight of the evidence, the award is to be sustained. Spradling v. International Shoe Co., 364 Mo. 938, 270 S.W.2d 28, 30; Dehoney v. B-W Brake Co., Mo., 271 S.W.2d 565, 566; Worley v. Swift & Co., Mo.App., 231 S.W.2d 828, 831.

The employer's plant, a two-story building, is over an old mine shaft, and sits in a depression, downgrade from all points, quite a bit below the surrounding terrain. Cement walls extend in places a short distance above the first floor and the upper walls are wood siding. The roof is the only ceiling to the second floor. There is no shade around the building, which had no insulation. Fans, if there were any in the building, were not in operating condition or, at least, not operating on the day involved.

The second floor is a large room, with four windows in the south and nine windows in the west wall. These windows and doors were open. There are two ramps on the north side to this second floor room. Carcasses are unloaded and piled inside the entrance at the west ramp. A 2,000 pound hoist is mounted in the roof, which is specially braced to support the load. Harry Dawson, the manager of the plant, testified this hoist was about 6 to 8 feet west of the cooker domes. The hoist is used in connection with the skinning and cutting up of the carcasses, which work is conducted about 14 feet north of the south wall. After dissecting, the meat is dropped into the two cookers and dry cooked under steam pressure. The lid of each cooker is about 20 inches across and 4 or 5 inches thick and extends above the floor of the large room.

The two cookers are side by side on the first floor and, we understand, just to the east of where the cutting occurs on the second floor. The cookers are cylindrical, approximately 10 feet long by 4 1/2 feet. Another shell is around each cooker, there being a space of about 3 1/2 inches between the two cylinders, which contains the steam. With the wheels and shafts, the cookers have and overall length of about 18 feet. If we understand correctly, the cookers have containers, separated by fine screens, which permit the grease to go down. The heavier mass, after cooking, is placed in hydraulic presses, held fifteen minutes, squeezing any remaining grease out and leaving the material in a hard cake. Two coal-stokered steam boilers are located at the east entrance to the plant.

The hide room, where hides are salted and stored for marketing, is a small one-story room at the south part of the plant. It has an 8-foot roof at the lowest point.

C. Esthel Grett was manager of the employer's plant between August 1, 1948, and June 1, 1954, when a disagreement arose, not a big issue, and his employment terminated. Harry Dawson succeeded Grett as manager. He had worked at the plant for six or seven years and testified that on the day of Lake's death the plant was in the same condition it was in while Grett was manager.

The plant seldom 'cooked' on Sundays, but usually operated until 3:30 a. m. Sunday morning. Dawson stated the plant may have shut down earlier on Sunday, June 27, 1954, perhaps between 12 m. and 3 a. m., as they intended to wash the boilers. It had been in operation day and night for several days.

Mr. Grett, who had personally performed all types of work done at the plant, testified that the cookers, when in operation, become hot and radiate heat; that the material in the cookers becomes boiling hot and semi-liquid in form, and retains its heat for twelve or fourteen hours if the top seal is not broken. The lids of the cookers (they fit on a gasket) on the second floor become hot. Steam escapes when the lids are opened.

The two presses are operated by steam pressure, become hot, and leak steam while in operation.

The testimony was that there was much more business in the Summer than in the Winter; that the carcasses decompose more in hot than cool weather, and in the Summer are in pretty bad shape on account of the heat.

Cold water would not clean the second floor where the carcasses were skinned and cut. It had to be scrubbed. A 'mixer' was used to wash the second floor; that is, live steam, to build up the pressure, and water was used, and the steam caused the water to be very hot. The floor did not drain...