Lampkin v. Harzfeld's

• Decision Date: 14 November 1966
• Docket Number: No. 51835,No. 2,51835,2
• Parties: Anna Marie LAMPKIN, Appellant, v. HARZFELD'S, a corporation, Respondent
• Court: Missouri Supreme Court

Page 894

407 S.W.2d 894

Anna Marie LAMPKIN, Appellant, v. HARZFELD'S, a corporation, Respondent.

No. 51835.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1966.

Wm. Harrison Norton, Williams, Norton & Pollard, North Kansas City, for appellant.

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

STOCKARD, Commissioner.

In this action for damages in the amount of $50,000 for personal injuries the trial court entered summary judgment for the defendant and plaintiff has appealed. The issue is whether plaintiff sustained injuries resulting from an accident arising out of and in the course of her employment with defendant with the meaning of the Workmen's Compensation Law. Chapter 287 (all statutory references are to RSMo 1959, V.A.M.S.). If so, plaintiff is relegated to the remedy of that law, and may not maintain this action against her employer. § 287.120(2); Marie v. Standard Steel Works, Mo., 319 S.W.2d 871, 875; Sheets v. Hill Brothers Distributors, Inc., Mo., 379 S.W.2d 514, 516.

Plaintiff alleged in her petition that she was employed by defendant as a sales lady, that she 'was advised that it would be necessary for her to take a series of flu shots' to be administered by a doctor who was an agent and employee of defendant, that on September 24, 1963, she was 'instructed' to appear before the doctor on the premises of defendant and was there 'administered the flu shot.' She then alleges that she had advised the doctor that she 'suffered from allergies,' that the defendant was negligent in administering the flu shot under the circumstances, and that she suffered a reaction resulting in substantial personal injuries.

After the pleadings were at issue the defendant moved for summary judgment, and submitted as exhibits to the motion (1) a copy of plaintiff's petition: (2) two certificates from the Division of Workmen's Compensation showing that defendant was classified as a major employer and had accepted the occupational disease amendment to the Workmen's Compensation Law, and that the files of that office did not show a rejection of the law by plaintiff; (3) an affidavit by an officer of defendant that it was operating under and subject to the provisions of the Missouri Compensation Law, and that the liability of defendant under that law was fully insured by an insurance company authorized to do such business in Missouri; and (4) portions of a deposition of plaintiff in which she testified that she was 'encouraged,' 'advised' and 'instructed' to take the flu shot by the 'personnel department' of defendant, that she was told she should take the flu shot 'to prevent getting sick' and so she would have less time off from work, and that she paid $1.50 for the flu shot and thought defendant paid a percentage of the cost.

Summary judgment is authorized by Civil Rule. 74.04(c), V.A.M.R., where the 'pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' It is further provided in Civil Rule 74.04(h) that 'In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.' In this case no counter affidavits to the motion for summary judgment were filed by plaintiff. For purposes of this appeal we accept as correct the statements of fact in defendant's exhibits to the motion for summary judgment. Spradlin's Market, Inc. v. Springfield Newspapers, Mo., 398 S.W.2d 859, 862, Grubb v. Leroy L. Wade & Son, Inc., Mo., 384 S.W.2d 528.

The exhibits to the motion for summary judgment establish that plaintiff was an employee of defendant at the time of her alleged injuries, and that plaintiff and her employer were subject to the Missouri Workmen's Compensation Law. The issues, therefore, are reduced to these: (1) Did plaintiff's injuries result from an accident as that term is defined in § 287.020 and used in § 287.120, and if so, (2) did the accident arise out of and in the course of her employment. Where, as in this case, there is no dispute as to the facts, these are questions of law. McFarland v. St. Louis Car Mo., Mo.App., 262 S.W.2d 344, 346; Liebman v. Colonial Baking Company, Mo.App., 391 S.W.2d 948, 950.

The term 'accident' is defined in § 287.020 to mean 'an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.' Plaintiff makes no contention in her brief that her injuries did not result from an accident. The inoculation for influenza was, of course, not an accident. But, the event of the reaction was unforeseen and unexpected, and it was a sudden and violent occurrence which produced objective symptoms of an injury. The occurrence falls precisely within the statutory definition of the word 'accident.' Other courts have uniformly held that reactions and infections resulting from vaccinations and inoculations constitute an accident within the meaning of the Workmen's Compensation Laws. See Lee v. Wentworth Manufacturing Company, 240 S.C. 165, 125 S.E.2d 7; Spicer Mfg. Co. v. Tucker, 127 Ohio St. 421, 188 N.E. 870; Neudeck v. Ford Motor Co., 249 Mich. 690, 229 N.W. 438; Freedman v. Spicer Mfg. Corp., 97 N.J.L. 325, 116 A. 427; Sanders v. Children's Aid Society, 238 App.Div. 746, 265 N.Y.S. 698, Affm'd. 262 N.Y. 655, 188 N.E. 107; Texas Employers' Ins. Ass'n v. Mitchell, Tex.Civ.App., 27 S.W.2d 600; Alewine v. Tobin Quarries, 206 S.C. 103, 33 S.E.2d 81; Smith v. Brown Paper Mill Co., La.App., 152 So. 700; Suniland Toys and Juvenile Furniture, Inc. v. Karns, Fla., 148 So.2d 523.

We return now to the issue of whether plaintiff's injuries arose out of and in the course of her employment. Plaintiff outlines in her brief what she contends are the 'indisputable facts' as follows: 1. She 'was an employee of defendant.' 2. She 'was injured during working hours.' 3. She was a 'saleslady in a well know ladies' ready to wear establishment.' 4. She was 'injured by a doctor when he administered a flu shot, (whom) we can assume to have been an agent of the defendant.' 5. 'Plaintiff, in her employment as a saleslady, has no connection with being treated by a doctor.' 6. 'Plaintiff paid $1.50 to the defendant for the shot she received from the doctor.' Plaintiff then argues that 'the last two facts' above set forth are 'the determinative facts of this case,' and that when considered in the light of the Missouri decisions, they establish that plaintiff's injury did not result from an accident arising out of and in the course of her employment. The basis for this contention seems to be that the accident 'did not occur when she was reasonably fulfilling the duties of her employment,' and since she paid $1.50 for the inoculation she 'was a customer then, and not an employee.'

An injury arises 'out of' the employment when there is a causal connection between the conditions under which the work is to be performed and the resulting injury, and it arises 'in the course of' the employment when it occurs within the period of the employment at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto. Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421; Goetz v. J. D....