Leone v. American Can Co.
| Decision Date | 06 February 1967 |
| Docket Number | No. 24597,24597 |
| Citation | 413 S.W.2d 558 |
| Parties | Lillian LEONE, Respondent, v. AMERICAN CAN COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
Harold T. VanDyke, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.
Terence L. Connaughton, Kansas City, for respondent.
This is a workmen's compensation case wherein the self insured employer has appealed from the action of the circuit court affirming the award of the Industrial Commission granting benefits to the widow of the deceased employee. This appeal was originally lodged in the Supreme Court of Missouri but was transferred to this court by order of the Supreme Court.
Henry S. Leone was an employee of the American Can Company at its plant in North Kansas City, Missouri, on November 2, 1963, when he was crushed by the counterweight of an elevator and received injuries resulting in his death on the same day. The accident occurred on a Saturday, when the plant was not operating at full capacity. He had been assigned to checking, cleaning and repairing air lines to machinery on the second and third floors of the plant.
Sometime between 11:00 and 11:30 A.M., Mr. John W. Slayton, another employee of the American Can Company, started to go to lunch from his work place on the fourth floor of the plant. Near elevator No. 1, located at the west side of the north end of the plant, Mr. Slayton pulled his car keys from his pocket and dropped them on the foor. The key to the trunk of his car fell down the elevator shaft. He then rode the elevator to the first floor and walked down to the basement of the plant. He was seeking access to the pit of the elevator shaft to look for his car key. In the basement he opened the door of the millwrights' washroom and saw Mr. Henry Leone inside. He asked Mr. Leone how to get into the elevator shaft and Mr. Leone pointed out the opening. Without further conversation, Mr. Slayton went into the elevator shaft, through the opening which he describes as more like a tunnel, about three feet square and about six feet long. In order to get into the elevator shaft, he had to crawl over pipes and through this tunnel-like opening. There was an electric light on the underneath side of the elevator car by which Mr. Slayton could see to look for his car key. As the elevator went up the light became dimmer and as the elevator came down the light became brighter because of its nearness to the person in the elevator shaft. Soon thereafter Mr. Slayton saw Mr. Leone squatted down in the entrance to the elevator shaft at the edge of the shaft. It developed that Mr. Leone was squatted down between two uprights which guided the counterweight of the elevator. Mr. Leone warned Slayton of the danger of his position in the elevator shaft and told him if the elevator got too low, he should either lie down or get out of the shaft. Slayton continued to look for his key and the light on the bottom of the elevator got dimmer, indicating that the elevator was going up. He then heard a sould like the 'air going out of somebody.' He looked around and saw Mr. Leone crumpled down close to the ground with the elevator counterweight on his back. For just a second there was slack in the cable holding the counterweight. Mr. Slayton yelled for the man on the elevator to bring the elevator down to raise the counterweight. This was done and after securing assistance, Mr. Leone was taken from the elevator shaft, the nurse was called and he was taken to the hospital where he died that afternoon. Mr. Slayton testified that immediately prior to the time that Mr. Leone was crushed by the counterweight, 'he was warning me of the danger of the elevator coming down.'
Mr. Leone was employed as a member of the maintenance department. The testimony showed that it was the duty of the maintenance department to maintain the plant and the machinery therein and that members of this department frequently had occasion to go into the elevator shaft to make minor elevator repairs, to retrieve objects which had been dropped down the elevator shaft and, when the shafts were flooded, to pump them out. The elevator shafts were recognized as places of danger and it was the practice that no one went into them alone. Two men always went in together, the second man being described as a 'back up' or 'safety' man. There was no rule, regulation or directive of the employer forbidding employees going into the pits of the elevator shafts and no warning was posted at the entrance and the entrance was in no way barred or locked. It is admitted that Mr. Leone had not been assigned to any duty on this day which would require him to go into the pit of the elevator shaft where he met with his fatal accident.
The Industrial Commission, by its award, found that Mr. Leone met his death by accident which arose out of and in the course of his employment. In the additional findings of fact and conclusions of law it determined that Mr. Leone, when he came to the entrance of the elevator shaft, was acting solely to aid and safeguard his fellow employee, Slayton, and to warn him of the dangers if the elevator should descend while he was in the pit of the elevator shaft.
Appellant contends that this award is erroneous and that the trial court erred in affirming it because there was not sufficient evidence in the record to support the award; the facts found by the commission did not support the award; and the accident which resulted in Mr. Leone's death did not arise out of or in the course of his employment. In considering this contention, we must remember that the burden rests upon the claimant to bring himself within theprovisions of the Workmen's Compensation Act and in this case, specifically, to show that Mr. Leone's death resulted from an accident which arose 'out of and in the course of his employment,' as required by Section 287.120, paragraph one, RSMo 1959, V.A.M.S., Ossery v. Burger-Baird Engraving Co., Mo., 256 S.W.2d 805; Duff v. St. Louis Mining and Milling Corp., 363 Mo. 944, 255 S.W.2d 792 and Smith v. Levis-Zukoski Mercantile Co., 223 Mo.App. 743, 14 S.W.2d 470. We are required to consider the evidence in the light most favorable to the decision of the Industrial Commission, but we cannot weigh the evidence ourselves and cannot substitute our judgment for the judgment of the commission. In reaching our decision we must defer to the determination of the commission as to the credibility of the oral testimony. If the award of the commission is supported by competent and substantial evidence, it must be affirmed, unless we find that it cannot be sustained because it is contrary to the overwhelming weight of all the evidence in the record. Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874; Thompson v. Otis Elevator Co., Mo.App., 324 S.W.2d 755; Liverman v. Wagner, Mo.App., 384 S.W.2d 107 and Shireman v. Rainen Home Furnishers, Inc., Mo.App., 402 S.W.2d 64.
In its brief, appellant repeatedly asserts that there is no evidence whatever in the record as to the reason why Mr. Leone went into the...
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