Leilich v. Chevrolet Motor Co.

• Decision Date: 24 June 1931
• Docket Number: No. 30019.,30019.
• Citation: 40 S.W.2d 601
• Parties: MRS. RUTH SENA LEILICH, Dependent of CHARLES L. LEILICH, v. CHEVROLET MOTOR COMPANY, Appellant.
• Court: Missouri Supreme Court

40 S.W.2d 601

MRS. RUTH SENA LEILICH, Dependent of CHARLES L. LEILICH, v. CHEVROLET MOTOR COMPANY, Appellant.

No. 30019.

Supreme Court of Missouri.

Division One, June 24, 1931.

Appeal from Circuit Court of City of St. Louis — Hon. Frank Landwehr, Judge.

AFFIRMED.

McCarthy, Morris & Zachritz for appellant.

(1) The employer is liable to compensate the employee or his dependents only for such injuries as are received as a result of an accident which arises "out of" and in the course of the employment. Missouri Compensation Act, secs. 3 and 7-B; Smith v. Levis-Zukoski, 14 S.W. (2d) 470; Hager v. Pulitzer Pub. Co., 17 S.W. (2d) 578; White Star Motor v. Commission, 336 Ill. 117, 168 N.E. 113; Union Indemnity v. Malley, 1 S.W. (2d) 923; Hopkins v. Sugar Co., 150 N.W. 325; State ex rel. Duluth v. District Court, 151 N.W. 913; Pierce v. Boyer Van-Kuran, 156 N.W. 509. (2) The act covers an employee only when he is engaged in or about the employer's premises where his duties are being performed or where his services require his presence as a part of such services. Missouri Compensation Act, sec. 7-C; Smith v. Levis-Zukoski, 14 S.W. (2d) 470; White Star Motor v. Commission, 336 Ill. 117, 168 N.E. 113; Union Indemnity v. Malley, 1 S.W. (2d) 923; Wisconsin Steel v. Commission, 123 N.E. 295; Casualty Co. v. Industrial Board, 169 Pac. 76; Hallet's Case, 119 N.E. 673; Babineau's Case, 150 N.E. 4. (3) The act does not cover an employee who is engaged in a voluntary act, not known to or accepted by his employer and outside of the duties for which he is employed, or where the employee incurs a danger of his own choosing outside of the reasonable requirement of his employment. Smith v. Levis-Zukoski, 14 S.W. (2d) 470; Mann v. Glastonburg Co., 96 Atl. 368, 9 Conn. 116; Brusster v. Commission, 169 Pac. 258; Russell v. Murray, 15 N.C.C.A. 258; United Disposal Co. v. Commission, 126 N.E. 183; Nelson Con. Co. v. Commission, 122 N.E. 113; Lumaghi v. Commission, 149 N.E. 11; Lancashire & Yorkshire v. Highley, 15 N.C.C.A. 210. (4) There must be a proximate connection between the employment and the injury. Unless it is proved that the injury had its origin in a risk which may be fairly and reasonably traced to the service of the injured person and that such injury flowed from such service as a reasonable consequence, no recovery may be allowed. Stocker v. Southfield, 221 N.W. 175, 244 Mich. 13; Smith v. Levis-Zukoski, 14 S.W. (2d) 470; Hager v. Pulitzer Pub. Co., 17 S.W. 578; White City v. Comm., 163 N.E. 337, 331 Ill. 401; Otto v. Chapin, 220 N.W. 661, 243 Mich. 256; Illinois Oil Co. v. Grandstaff, 246 Pac. 832; Nesbitt v. Twin City, 145 Minn. 286, 177 N.W. 131; Orsini v. Torrance, 113 Atl. 924; Clark v. Vorhees, 231 N.Y. 14, 131 N.E. 553; Ex parte Taylor, 213 Ala. 282, 104 So. 527; Wicks v. Cuneo-Henneberry, 319 Ill. 344, 150 N.E. 276. (5) A finding that an injury occurred in the course of the employment raises no presumption that it arose out of the employment. Nesbitt v. Twin City, 145 Minn. 286, 177 N.W. 131; Smith v. Levis-Zukoski, 14 S.W. (2d) 470; White Star Motor Co. v. Commission, 336 Ill. App. 117, 168 N.E. 113. (6) Under the facts of this case, as a matter of law, there was no accident within the meaning of the Compensation Act. There was no unexpected or unforeseen event happening suddenly and violently and producing objective symptoms of an injury. The injury occurred from ordinary means, voluntarily employed in a not unusual or unexpected way, and deceased was fully aware of the natural and probable consequence of his conduct. Missouri Compensation Act, sec. 7, sub. B; Caldwell v. Ins. Co., 305 Mo. 619; Kutschmar v. Briggs, 197 Mich. 146. (7) Recovery under the Compensation Act must be supported by a preponderance of the evidence. Smith v. Levis-Zukoski. 14 S.W. (2d) 470; Libby McNeil v. Commission, 157 N.E. 168; Consolidated Coal Co. v. Industrial, 156 N.E. 325; Crews v. Moseley Bros., 138 S.E. 494. (8) The findings of the Commission must rest on fact and not surmise, speculation and conjecture. Smith v. Levis-Zukoski, 14 S.W. (2d) 470; In re Sanderson's case, 113 N.E. 357; In re Sponatski, 108 N.E. 467; Chicago Daily News v. Commission, 137 N.E. 797; Savoy Hotel v. Industrial Board, 116 N.E. 712. (9) Claimant's theory that deceased had started up the motor of the car in order to change a tire and while so doing was killed as a result of the wind blowing the door of the garage shut is not a reasonable or legitimate inference from the testimony in this case, and is so utterly repugnant to common sense and human knowledge, the very fundamentals of an inference, as to be manifestly false and should be disregarded. Smith v. Levis-Zukoski, 14 S.W. (2d) 470; Goucan v. Atlas Portland Cement, 317 Mo. 919, 298 S.W. 793; Monroe v. Railroad Co., 297 Mo. 633, 249 S.W. 644; Spain v. Frisco, 190 S.W. 361; Cooley v. Davis, 286 S.W. 412; Burkett v. Gerth, 253 S.W. 199; Campbell v. Nelson, 253 S.W. 199. (10) It is the duty of the Commission to find the facts upon which an award is based and not merely to state its conclusions from the evidence produced. Midland Coal Co. v. Commission, 277 Ill. 333; Bryant v. Foundry Co., 116 So. 345. (11) The provision in section 21 (b) of the act, to the effect, "The death benefit provided for shall be payable in installments in the same manner that compensation is required to be paid under this act, etc.," obviously refers to Section 14 (B) which provides: "But in no case shall the compensation exceed $20 per week."

George B. Whissell and William F. Coyle for respondent.

(1) Appellant's statement that compensable injuries (and respondent's death) under the Workmen's Compensation Act are only such as are the result of an accident which arises "out of" and "in the course of" the employment is admitted, but respondent asserts the findings of the Commission considered here satisfy all the requirements of the law and are in sufficient detail to state ultimate facts, which is what the law requires of such findings. Resumes of the evidence and the statement of evidentiary facts should be avoided. In addition, appellant's attack on findings based on their form comes too late when first heard on appeal. 28 R.C.L. 827; State ex rel. Syrup Co. v. Workmen's Compensation Commission, 8 S.W. (2d) 899; Kinder v. Car Wheel & Foundry Co., 18 S.W. (2d) 91; 26 R.C.L. secs. 93, 100, 103, 104, p. 1087; Bond v. Williams, 279 Mo. 215, 214 S.W. 202; See 44, Workmen's Compensation Act; Snyder v. Industrial Commission, 297 Ill. 175, 130 N.E. 517. (2) The Act, by its terms, does not limit recovery to employees only when about "employer's premises," as stated by appellant, but covers workmen while in and about the "premises" where their duties are being performed, or where their services require their presence as a part of such services and covers traveling sales representatives while traveling for employer away from employer's premises. Sec. 7 (c), Workmen's Compensation Act. (3) The words "out of" refer to the origin or cause of an accident, and words "in the course of" to the time, place and circumstances under which it occurred; wherefore an injury which occurs while an employee is doing what he might reasonably do at the time and place is one which arises "out of and in the course of the employment." L.R.A. 1916A, 232; Bryant v. Fissell, 84 N.J.L. 72, 86 Atl. 458; Fitzgerald v. Clarke & Son, 2 K.B. 796, 77 L.J.K.B. 1018; Jackson v. Euclid-Pine Investment Co., 22 S.W. (2d) 849. (a) Deceased had started the day's work for his employer prior to his death, in the sense understood in the act. Harby v. Marwell Bros., 196 N.Y. Supp. 729; Chandler v. Ind. Com. of Utah, 208 Pac. 499; United States Casualty Co. v. Hardware Co., 184 N.W. 694; Manley v. Lumber Co., 221 N.W. 913; Borah v. Motor Car Co., 257 S.W. 145; Aetna Life Ins. Co. v. Schmiedcke, 213 N.W. 292, 192 Wis. 574; London & Lancashire Ins. Co. v. Ind. Acc. Com., 170 Pac. 1074; Donahue v. Casualty Co., 116 N.E. 226, 226 Mass. 595. (b) Deceased's returning to the house to change his clothes did not amount to a quitting of his employment. Guthrie v. Holmes, 272 Mo. 215, 198 S.W. 854; Tutie v. Kennedy, 272 S.W. 117; Fidelity & Casualty Co. v. Rys. Co., 207 Mo. App. 141, 231 S.W. 277. (c) The changing of this tire was an act arising out of and in the course of deceased's employment. Jackson v. Investment Co., 22 S.W. (2d) 849; Smith v. Levis-Zukoski, 14 S.W. (2d) 470; Burgess v. Garvin, 219 Mo. App. 162, 272 S.W. 114; Manley v. Lumber Co., 221 N.W. 913; Kingsley v. Donovan, 155 N.Y. Supp. 801; Sexton v. Public Service Com., 180 App. Div. 111, 167 N.Y. Supp. 493; Dagis v. Mfg. Co., 213 Mass. 524, 100 N.E. 620; Brenner v. Heruben, 176 N.W. 228; (4) Respondent admits there must be a proximate connection between the employment and the injury, but that the evidence in this case satisfies such requirement and further establishes that the injury had its origin in a risk which may be fairly and reasonably traced to the service of the injured person and that such injury flowed from such service as a reasonable consequence thereof. Authorities under Point 3. (5) In considering evidence on appeal from an award by the Workmen's Compensation Commission, questions of preponderance of the evidence are not before the appellate court, its duty in such cases being limited to a determination of whether there was sufficient competent evidence adduced, together with fair and reasonable inferences of fact legitimately deducible therefrom to justify the findings made by the Commission upon which it has based the award. Smith v. Levis-Zukoski, 14 S.W. (2d) 470; Cotter v. Coal Co., 14 S.W. (2d) 660. (6) The findings are sufficient as being statements of ultimate facts supported by evidentiary facts in the record and are not merely statements of conclusions. They fulfill the requirements of the law as to form. Authorities under Point 1. (7) The Compensation Act does not limit the maximum death...