Lunn v. Columbian Steel Tank Co.

• Decision Date: 10 January 1955
• Docket Number: No. 44217,No. 1,44217,1
• Citation: 364 Mo. 1241,275 S.W.2d 298
• Parties: Clara M. LUNN, Anna Lunn, and Doris Virginia Christian, Plaintiffs-Appellants, v. COLUMBIAN STEEL TANK COMPANY, Employer, Travelers Insurance Company, Insurer, Defendants-Respondents
• Court: Missouri Supreme Court

Page 298

275 S.W.2d 298

364 Mo. 1241

Clara M. LUNN, Anna Lunn, and Doris Virginia Christian Plaintiffs-Appellants, v. COLUMBIAN STEEL TANK COMPANY, Employer, Travelers Insurance Company, Insurer, Defendants-Respondents.

No. 44217.

Supreme Court of Missouri, Division No. 1.

Jan. 10, 1955.

Motion for Rehearing or to Transfer to Court en Banc Denied

Feb. 14, 1955.

Milam L. R. Wade, Kansas City, for appellants.

Reed O. Gentry, Rogers, Field & Gentry, Kansas City, for respondents.

COIL, Commissioner.

This is a workmen's compensation case.

plaintiffs-appellants were claimants of compensation which they alleged was due them on account of the death of Charles W. Lunn, their husband and father, respectively. Respondents are the Columbian Steel Tank Company, employer, and Travelers Instrance Company, insurer. Plaintiffs claimed and respondents denied that Lunn's death occurred by reason of an accident arising out of and in the course of his employment. Plaintiffs have appealed from the judgment of the circuit court affirming the award of the Industrial Commission denying compensation. Neither the divisional referee nor the Industrial Commission, on review, stated specific findings of fact or conclusions of law.

The essential facts are not in dispute. Lunn, 42 years of age, was an employee of Columbian Steel Tank Company. He arrived for work on July 13, 1951, at employer's place of business, which consisted of several buildings located in the 'West Bottoms' area (south of 12th and generally between Genesee and Mulberry Streets) in Kansas City. This entire area was inundated by a flood of the Kaw River on July 13, 1951. Lunn parked his private truck on the west side of Genesee, facing south, about 150 to 175 feet south of 12th; a location customarily used by employees for parking. This was across the street from the company's building known as the 'bolted tank' building. The particular building to which Lunn reported that morning was 'warehouse E', located at Hickory and 13th Street Terrace, some four or five blocks from the place where Lunn's truck was parked.

Lunn worked under foreman Bowman unloading some lumber, after which Lunn and the employees in the crew with him were advised, in effect, that flood water probably would enter the area and that anyone who so desired could then leave, but that employer would appreciate it if any of the employees would volunteer to stay and help move some bolts from the basement of warehouse E to a higher floor to protect such bolts from water damage Lunn and fellow employee, Crawford, (apparently among others) agreed to stay and help move the bolts. The foreman stationed a man outside the building to watch for and warn if and when flood waters entered the area. After about 15 minutes the watchman told the foreman that flood waters were entering the area and the foreman told the men to get out. The crew, including Lunn and Crawford, left the building. The foreman stayed for an additional ten minutes and then proceeded from warehouse E north for about 1 1/2 blocks to 12th Street and then east to the 12th Street viaduct.

Crawford testified that it was shortly before 11:30 a.m. when they finished the job of unloading the lumber truck; that he and Lunn stayed voluntarily to work in response to the employer's request to stay and help get the bolts out of the basement onto some waiting trucks; that in less than 15 minutes he, having gone outside the building, saw water coming and 'hollered' for everybody to get out; that he and Lunn left together; that they went 'pretty fast' from warehouse E north on Hickory to 13th and west on 13th to Liberty where the main office of the company was located; that he, Crawford, went into the office to check out and get his clothes, but found that the time cards had been pulled; that Lunn did not go into the main office; that the last time he (Crawford) saw him, Lunn was proceeding west on 13th some place between Hickory and Liberty; that he did not know where Lunn went from that place; that he knew that no work was done in warehouse E after he and Lunn left; that, after changing clothes, along with some other men in the main office, he (Crawford) proceeded to the 12th Street viaduct.

Another employee, King, testified that he had been working at the 'galvanizing building' at the corner of 12th and Hickory, which would appear from the exhibits to be 3 or 3 1/2 blocks from the place where Lunn's automobile was parked. King said that he and others were warned by a man from the stockyards to get out of the area. King ran to his automobile which was also parked on the west side of Genesee facing south, about 150 feet south of 12th Street. Lunn's truck was parked about three cars south of King's automobile. After King got in his car and had turned it around so that it was heading north toward 12th Street, he saw Lunn on the west side of Genesee walking south toward and close to his (Lunn's) truck. At that time there was no water around these automobiles but water was then coming 'down the street (from south to north) fast', according to King. King drove to 12th Street, turned east for 50 to 75 feet. His automobile's motor was 'drowned out' by flood water as it waited in a line of traffic. He left his automobile and walked on east to the 12th Street viaduct. This was about 11:30 a.m.

Lunn was not again seen alive by anyone. His body was found on July 16, 1951 (three days after the flood waters first entered the area), on the west side of Genesee Street about 6 to 8 feet west of the west curb and about 300 feet south of 12th Street. Lunn at the time had on his work clothes, i.e., he had not changed to his other clothes which he ordinarily wore to and from work. Lunn's truck was found and sold for salvage, but the evidence does not disclose where the truck was found. It was stipulated that the medical evidence would show that Lunn met his death by drowning.

W. M. Gadberry, who was sales manager and had 'overall supervision of the entire establishment' for Columbian Steel Tank Company, testified that the United States Engineers had told him on the morning of the 13th that there would be no flood waters in the district of employer's installations; that his first actual knowledge that flood waters had entered the area was when he saw the water, but he said that he and other officials of the company had become alarmed despite the statements of the engineers and, on their own initiative, and after he had looked at the river level, and after a hurried conference, they attempted to get some of their materials off the first floor and up to the second floor of warehouse E. He said that after this hurried production conference it was decided 'we would take it upon our own responsibility to see what we could do to protect ourselves' and that they did that. During the entire morning of the 13th, some employees had been placing sandbags around the 'galvanizing pot' at one of the installations. Flood water was about 14 feet deep on Genesee Street at the place where Lunn's body was found.

We have appellate jurisdiction because the 'amount in dispute' is in excess of $7,500. Foster v. Aines Farm Dairy Co., Mo.Sup., 263 S.W.2d 421, 423.

In reviewing this case 'we have the duty of determining whether the Commission's award is supported by competent and substantial evidence upon the whole record. Const. Art. 5, Sec. 22, V.A.M.S. This does not mean that we may substitute our own judgment on the evidence for that of the Commission. But we are authorized to decide whether the Commission could have reasonably made its findings and reached its result, upon a consideration of all of the evidence before it, and to set aside its decision if clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647.' Foster v. Aines Farm Dairy Co., supra, 263 S.W.2d 423[2, 3].

In this case we note that the finding of the Industrial Commission was: 'We find from all the evidence that the death of Charles William Lunn, employee herein, was not the result of an accident July 13, 1951, arising out of and in the course of his employment with Columbian Steel Tank Company, as alleged. Compensation, therefore, must be and the same is hereby denied.' It is apparent that the finding of the Industrial Commission was not upon a stated ground of the lack of credibility of the claimants' witnesses. None of the witnesses, either for claimants or employer, were contradicted or impeached. In fact, most of the matters testified to by claimants' witnesses were corroborated...