Lumpkin v. Sheidley Realty Co.

• Decision Date: 05 July 1932
• Citation: 53 S.W.2d 386,227 Mo.App. 306
• Parties: MARY EMMA LUMPKIN ET AL., RESPONDENTS, v. SHEIDLEY REALTY COMPANY ET AL., BANKER'S INDEMNITY INSURANCE COMPANY, INSURER, APPELLANTS
• Court: Kansas Court of Appeals

53 S.W.2d 386

227 Mo.App. 306

MARY EMMA LUMPKIN ET AL., RESPONDENTS, v. SHEIDLEY REALTY COMPANY ET AL., BANKER'S INDEMNITY INSURANCE COMPANY, INSURER, APPELLANTS

Court of Appeals of Missouri, Kansas City

July 5, 1932

Appeal from the Circuit Court of Jackson County.--Hon. Darius A Brown, Judge.

AFFIRMED.

Judgment affirmed.

Mont T Prewitt and Wm. T. Alford for respondent.

Martin Scheufler & Carbaugh for appellant.

BOYER, C. Campbell, C., concurs. Arnold, J., absent.

OPINION

BOYER, C.--

This is an appeal from the judgment of the circuit court affirming an award made by the Workmen's Compensation Commission. The claimants are the widow and the minor child of Wayne Lumpkin who met his death by accident October 4, 1930. He was an employee of defendant company, and the Bankers' Indemnity Insurance Company was the insurer. A timely claim in usual form was presented to the commission to which the employer and insurer made answer. All the statements of the claim were admitted except it was denied that the deceased was receiving a commission in addition to salary, and the defendants denied "that said death arose out of and in the course of said deceased's employment." The evidence was received by a single commissioner who made an award in favor of claimants in which $ 150 was allowed as burial expenses and the sum of $ 11.36 a week for 300 weeks to the widow until death or remarriage and the unpaid remainder, if any, to the minor child as her interest might appear. On application for review by the full commission the award thus made was affirmed by two members of the commission, the third member dissenting.

Among other findings of fact, it is stated that the accident arose out of and in the course of the employment. The central question in the case is whether there was sufficient competent evidence to support the award and the finding above mentioned. The amount allowed is not in dispute. It is insisted by appellants that the evidence was insufficient to support the finding that the accident arose out of and in the course of employment.

The abstract of the evidence shows that at the time in question defendant realty company was operating a public garage in a large building of fifteen levels, all connected by ramps. The place was used primarily for the purpose of parking automobiles or for storage. The entrance led to the main floor where the offices, rest rooms, and gasoline pumps were located. A large number of automobiles were handled and various employees were engaged to do the work. The company had a manager and an assistant manager, and in their absence certain other employees were left in superintending control. The deceased and a number of others were employed chiefly to receive and deliver cars and to drive them from place to place in the building. Wayne Lumpkin had been employed in this work for about a month, and for some time prior to the accident had been working in the nighttime from seven o'clock in the evening until seven o'clock in the morning. His duties were to drive cars until twelve o'clock, at which time the main doors of the garage were closed and thereafter he would be engaged in cleaning up the first floor and the other levels of the building. On the night in question there were three employees at the place of business until twelve o'clock. At that time the man who was in charge departed and left one Harrington as the "straw boss" in charge of the place. After twelve o'clock, Harrington and Lumpkin worked for two hours or longer in sweeping and cleaning the main floor of the building. This was the usual custom, and after that work was performed it was then the duty of Lumpkin to devote his time to cleaning some of the upper levels. After the first floor was cleaned, Harrington and Lumpkin separated. Some time thereafter Harrington went by elevator to some of the upper levels and shortly after his return to the ground floor and at about three o'clock A. M., he saw Lumpkin on a motorcycle coming down the ramp from the second to the first floor. For some reason the motorcycle jumped an eight-inch curbing at the side of the ramp and Lumpkin was thrown off and fell over the ramp to the basement floor and the motorcycle fell upon him. He died either instantly or within a very short time.

The motorcycle in question had a sidecar attachment and was the property of the Royal Typewriter Company. By special arrangement it had been parked at a particular place on the ground floor which was not large enough for an automobile. There is evidence offered by defendants that by special arrangement between the manager of the garage and the typewriter company the latter was permitted to park its motorcycle at the place designated. It was to be parked and removed by the owner's driver, and no one else was to handle the motorcycle. According to custom the employee of the typewriter company who operated the motorcycle took it to the garage and parked it in its usual place at about five or five-thirty P. M., on October 3, 1930. There is also evidence that there was no other motorcycle stored, parked, or kept in the garage except one belonging to an employee who occasionally had it there. There is evidence that all of the employees of the garage were instructed not to handle or drive the motorcycle of the typewriter company and that they were not to touch it, but this is controverted. There is evidence that before the accident the motorcycle in question had not been on any other floor in the garage except when operated by its own driver who took it on different occasions to an upper floor where he washed it and returned with it. The tires of the motorcycle had been repaired on different occasions at that place, but it does not appear that the motorcycle was moved to any other floor for that purpose. Wayne Lumpkin at one time owned a motorcycle of his own, but did not own one at the time of the accident. There was no one else in the building at the time except the two men named.

Harrington testified that the motorcycle was about eight feet down the ramp when he first saw it; that he heard it "just a minute" before it came into sight; that he did not recall seeing the motorcycle at any time that night before Lumpkin was on the machine; "it was normally kept on the first floor." "Q. And in connection with the duties of Wayne Lumpkin, was it part of his duties to clean on the second floor where this motorcycle came from and move it down to the first floor if it had been out of its usual first floor place? A. Yes, sir, if it was necessary to move it he had the authority." He had not given instructions to any one to do anything to the motorcycle; he had never seen Lumpkin start the engine or move the motorcycle before. Witness did not sit in any meeting where instructions were given by the assistant manager; he did not know how the motorcycle happened to be on the second floor; there was another boy there until midnight; if the motorcycle had been taken up he might or might not have known it...