Lathrop v. Tobin-Hamilton Shoe Mfg. Co.

• Decision Date: 01 April 1966
• Docket Number: No. 8502,TOBIN-HAMILTON,8502
• Citation: 402 S.W.2d 16
• Parties: Eva LATHROP, Plaintiff-Respondent, v.SHOE MANUFACTURING COMPANY and Employers Mutual Casualty Company, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 16

402 S.W.2d 16

Eva LATHROP, Plaintiff-Respondent, v.TOBIN-HAMILTON SHOE MANUFACTURING COMPANY and Employers Mutual Casualty Company, Defendants-Appellants.

No. 8502.

Springfield Court of Appeals, Missouri.

April 1, 1966.

Daniel, Clampett, Ellis, Rittershouse & Dalton, Paul D. Rittershouse, Springfield, for defendants-appellants.

Quentin Haden, Ava, Neale, Newman, Bradshaw, Freeman & Neale, Warren S. Stafford, Springfield, for plaintiff-respondent.

STONE, Presiding Judge.

In this proceeding under the Missouri Workmen's Compensation Law(V.A.M.S. Chapter 287), claimantEva Lathrop filed a claim for benefits on account of personal injuries sustained as the result of an accident about 10 A.M. on Friday, September 14, 1962, in Mansfield, Missouri, when a driverless, runaway automobile crashed through a window of the shoe factory of her employer, Tobin-Hamilton Shoe Manufacturing Company, where she then was engaged in her regular work, i.e., operating 'a closer' which 'sews the back of shoes and the toes.'The employer and its insurer, Employers Mutual Casualty Company, admitted that the accident arose 'in the course of'claimant's employment but asserted that it did not arise 'out of' her employment and, therefore, was not compensable.V.A.M.S. § 287.120.The referee so found and denied compensation; and, on review, the Industrial Commission handed down a final award, all members concurring, denying compensation for the same reason.Upon appeal, the Circuit Court of Greene County(to which the case was transferred on change of venue) found 'as a matter of law, that the accidental injury in question did arise out of (claimant's) employment' and that she was entitled to benefits under the Compensation Law, set aside the final award of the Industrial Commission, and remanded the cause to the Commission for further proceedings.This appeal by employer and insurer has followed.

We digest the pertinent facts from the testimony of claimant, the only witness, and from the written report of the investigating trooper of the Missouri State Highway Patrol, received in evidence by agreement of counsel.The employer's factory was situate on the north side of an east-and-west alley, fifteen feet in width, which ran parallel to, and one short block north of, the business route of U.S. Highway 60 through the City of Mansfield, judicially known to have had a population of 949 persons according to the United States census of 1960.Varble v. Whitecotton, 354 Mo. 570, 575, 190 S.W.2d 244, 246(4);Missouri Public Service Co. v. Barton County Elec. Coop., Mo.App., 353 S.W.2d 818, 819(1).The south side of the factory was (as the trooper measured it)'six paces' or about eighteen feet north of the north edge of the east-and-west alley.A north-and-south alley, sixteen feet in width, ran north from the business route of Highway 60 to the east-and-west alley, dead-ending at, and making a T-intersection with, the latter alley at a point about even with the middle of the south side of the factory.With respect to the east-and-west alley, claimant testified that 'there's a street (an alley) there but there's no traffic'; but, with respect to the north-and-south alley, she said 'yeah, it's busy.'The east-and-west alley was one-way, limited to eastbound traffic, as was shown by an appropriate sign on the north side of the T-intersection.There was a gentle downgrade for norhbound vehicles on the north-and-south alley.

At the time of accident, claimant was seated, facing toward the east, near the north end of a long north-and-south table and about ten feet north of a large window in the south wall of the factory.A substantial portion of this window would have been within the lines of the north-and-south alley, if extended to the north.The window was seventeen feet in width and five feet four and one-half inches in height.The glass, 'painted white,' admitted light but permitted no vision through it.The bottom of the window was five and one-half inches above ground level, while the floor of the factory was four feet two inches below ground level.There were no barricades between the east-and-west alley and the factory.

The automobile, which was shortly to work the havoc, stopped in the driveway of a filling station on the northeast corner of the intersection of Highway 60 and the north-and-south alley.When brought to a halt there, the automobile was headed north and was wholly on private property, to wit, in the filling station driveway, between the east line of the north-and-south alley and the gasoline pumps.The here unidentified female driver of the automobile alighted therefrom and (in the language of the patrol report)'had her sister . . . move on the left side of car out of the sun.Apparently the motor of the car was left running and as the passenger moved to the left side of the car she accidentally put the car in gear and hit the accelerator.The car went forward approximately 140 and crashed through a window of the Tobin-Hamilton (factory).'As shown on the patrol report, the driverless, runaway automobile traveled almost due north on private property just east of the north-and-south alley until the automobile reached the east-and-west alley, crossed the latter alley angling slightly west of north, traversed the eighteen feet between the alley and the factory, mounted the 5 1/2 section of the south factory wall under the window nearest to claimant, crashed through that window, and finally 'came to rest 43 north of where it entered the factory.'Struck without warning, claimant knew nothing of the occurrence itself and her first recollection was of fellow-employees 'pulling me out from under' the table.Since the nature, extent and duration of her injuries are not here in issue, it will suffice to capsule them in her terse statement that 'I had a cracked pelvis and (right) hip and this leg' with 'cuts on my head and (left) eye.'

In its final award denying compensation, the Industrial Commission included the oft-quoted statement that '(i)t is necessary to bear in mind the fundamental difference between those causative agencies which are part and parcel of the master's business and under his control, and those which lie outside that business and beyond his control.In the former class of cases, it is quite reasonable to hold the master liable, no matter how unusual or unpreventable the accident may be.But, in the latter class of cases it seems unjust to hold the employer liable, unless the employment in some way exposes the employee to an unusual risk (of) injury from such agency which is not shared by the general public.'¹And the Commission suggested 'that the facts in the instant case are not unanalagous to those in Scherr v. Siding & Roofing Sales Co., (Mo.App.), 305 S.W.2d 62.'In reversing the Commission, the 'order and decree' of the circuit court did not indicate the theory on which the court had reached the conclusion that, as a matter of law, the injury did arise out of claimant's employment.In excellent briefs filed in this court, resourceful counsel join issue as to whether the judgment of the circuit court may be supported on any of three bases, namely, (1) on the 'street-risk doctrine,'(2) on the principles controlling in the so-called 'assault cases,' or (3) on the theory that the accident resulted from a 'special hazard' peculiar to claimant's employment.

Preliminary to discussion of the above theories, it may be well to note that our Missouri courts have not accepted the so-called 'positional-risk theory'(Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296, 299;Liebman v. Colonial Baking Co., Mo.App., 391 S.W.2d 948, 952--953), under which an accident becomes compensable on a mere showing that 'it would not have happened but for the fact that the conditions or obligations of the employment put claimant in the position where he was injured'(Williams, supra, 332 S.W.2d at 299) or, even more pointedly put, that 'the victim's employment caused him to be at the place where it happened.'Liebman, supra, 391 S.W.2d at 952.And, recognizing the disfavored status of the positional-risk theory in this jurisdiction, instant claimant expressly disavows reliance on that theory.

We deal first with the 'street-risk doctrine' because the other two points are interrelated in theory.Larson's statement in boldface type under the hearding of 'the street-risk doctrine' is: 'All courts now agree that street or highway injuries to employees such as traveling men, deliverymen, and solicitors, whose duties increase their exposure to the hazards of the street, arise out of the employment, although the nature of the risk (as distinguished from the degree) is not peculiar to the employment.A large number of courts have gone one step further by holding that injury from such risks is compensable regardless of whether such exposure is continuous or only occasional, so long as the exposure is in fact occasioned by the employment.At the same time, the concept of street risks has been broadened far beyond the original idea of traffic perils, and has been applied to almost any mishap whose locale is the street, including simple falls, stray bullets, falling trees, and foul balls.'1 Larson, Workmen's Compensation Law, § 9.00, p. 75.(Except as is otherwise specifically noted, all emphasis herein is ours.)

In Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 747(ruled upon the principles controlling in assault cases), we quoted parenthetically, but with approval, the basic definition of the street-risk doctrine in the first sentence of the above paragraph from Larson, supra.And in Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, 490(an assault case), the court digested the doctrine of street-risk or street-hazard cases as being 'that injuries received on the public streets or highways, due to traffic accidents, falls, and other accidents, which are more likely to occur on the...