Metting v. Lehr Const. Co.

• Decision Date: 03 November 1930
• Citation: 32 S.W.2d 121,225 Mo.App. 1152
• Parties: J. J. METTING, ET AL., RESPONDENTS, v. LEHR CONSTRUCTION COMPANY, APPELLANT
• Court: Kansas Court of Appeals

32 S.W.2d 121

225 Mo.App. 1152

J. J. METTING, ET AL., RESPONDENTS, v. LEHR CONSTRUCTION COMPANY, APPELLANT

Court of Appeals of Missouri, Kansas City

November 3, 1930

Appeal from Circuit Court of Buchanan County.--Hon. L. A. Vories Judge.

AFFIRMED.

Judgment affirmed.

Stringfellow and Garvey for appellant.

Randolph and Randolph for respondent.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is an appeal by defendant from a judgment of the circuit court of Buchanan county setting aside an award of the Workmen's Compensation Commission and remanding the case to that body to ascertain and determine the amount due plaintiffs. The commission found that plaintiffs were not entitled to any compensation for the death of their son because he was killed by an accident that did not arise out of and in the course of his employment.

The facts show that deceased, a young man nineteen years of age, was employed by the defendant as a laborer in the construction of a set of concrete grain storage tanks in the city of St. Joseph. To what height the storage tank in question was constructed at the time of the death in controversy is not shown in the testimony. A work tower had been erected, along the side of one of the tanks, containing platforms seven to nine feet apart connected by ladders. Attached to this tower was a wooden beam from which a rope and pulley were suspended, which were installed for the purpose of hoisting materials. One end of this rope was attached to a steam hoist on the ground below and the other was run through the pulley and, "as a rule," was attached to a weight on or near the ground. When material was to be hoisted the end of the rope attached to the weight would be loosened and tied to the material. The rope and pulley hung about three feet to the south of the platforms of the tower. There were upwards of one hundred men employed upon the work and the ladders between the platforms were constructed for their use in going up and down the tower. There was also a ladder or stairs in the "head house" which was about 400 feet from where the men were working. It required about ten minutes longer to go down the stairs in the head house than to descend the tower ladders. However, some of the men used the stairs in the head house. These, as well as the tower ladders, could have been used by deceased in descending at the time he was killed.

At the time of the accident deceased was working at the top of the concrete tanks. The workmen had finished their day's labor and were descending to the ground below. Deceased, standing on the top platform of the tower, reached over the railing of the platform and caught hold of the rope about three feet away. One witness testified that deceased "just reached over and grabbed this rope and the first thing I knew he was gone." Deceased caught the end of the rope which was fastened to the hoist and, the other end being loose, the rope slipped through the pulley and he fell to the ground below to his death. There is no testimony as to the whole distance that deceased fell. One witness testified that he was on the third platform or landing from the bottom when deceased "passed" him in falling; that this platform was from twenty-four to twenty-seven feet above the ground.

There was testimony that there were several instances where others had used the rope upon which to slide down. A number of workmen testified that they had never been instructed not to use the rope. There was also testimony that the superintendent was supposed to issue orders forbidding employees to slide down the rope but there is no testimony that any one actually gave an order of this kind, except that one of the employees testified that he had been instructed by the foreman "not to allow the men to go down the rope;" that these men were not working under him; that he told some of them (5 or 6) not to slide down the rope, but not all of them; that the foreman instructed him to furnish him with the names of those who used the rope and he would discharge them, but that none was discharged.

Defendant's president testified that he had a conversation with deceased's mother after the accident and that she said to him that deceased "had been going down the rope" and that she had cautioned her son on the morning of the accident, before he went to work, not to go down it.

It is the contention of the defendant that "the commission's finding that the accident did not arise out of and in the course of employment is a finding of fact and is conclusive and binding upon the court on appeal." This is true only if the evidence supports the finding. Inquiry as to whether or not the accident arose out of and in the course of the employee's employment involves a law question. Therefore, the result of such an inquiry is a legal conclusion rather than an ultimate fact, and while it is proper for the Board to include in its findings its general conclusions respecting the matter, such conclusions are reviewable by the courts, and when so reviewed they are binding upon the courts only when justified by the ultimate facts. The courts will not consider such conclusions of law in determining whether, under the ultimate facts, the injury or death was the result of an accident and whether it grew out of and in the course of deceased's employment, as those terms are used in the statute. So we will determine the question for ourselves, from the facts taken in their most favorable light to the conclusion of the commission that the death did not arise out of and in the course of deceased's employment. [Inland Steel Co. v. Lambert, 118 N.E. 162; In re Bentley, 104 N.E. 432 (Mass.); In re Mathewson and companion cases, 116 N.E. 831 (Mass.); Dietzen Co. v. Industrial Board of Illinois, 116 N.E. 684 (Ill.); Cotter v. Valentine Coal Co., 14 S.W.2d 660; Section 44, Workmen's Compensation Act, see Laws 1927, p. 512.]

It is a further contention of the defendant that the deceased came to his death under circumstances and at a place where his duties did not require him to be and where no duty connected with his employment was being performed; that, therefore, under the terms of the Workmen's Compensation Act the accident was not compensable. Section 3 of the act, Laws 1927, p. 492, provides that in order for there to be compensation the injury or death of the employee must be "by accident arising out of and in the course of his employment." Section 7 (c) of the act provides:

"Without otherwise affecting either the meaning or interpretation of the abridged clause, 'personal injuries arising out of and in the course of such employment,' it is hereby declared not to cover workmen except while engaged in, or about the premises where their duties are being performed, or where their services require their presence as a part of such services." (Laws 1927, p. 496).

This contention of the defendant raises the question as to whether or not there was "sufficient competent evidence in the record to warrant the making of the award." [See Section 44 of the Act, Laws 1927, p. 513.] In this connection it will be proper for us first to determine the meaning of the statute providing that the accident must arise out of and in the course of the employee's employment. It is well settled that it is incumbent upon the claimant to prove both that the accident arose "out of" and "in the course of" the employment, but the courts have found great difficulty in attempting to formulate a comprehensive definition of these terms. However, the showing of the one without the other will not be sufficient to authorize the making of an award in favor of a claimant. Generally speaking, the injury or death is received "in the course of" the employment when it is sustained while the workmen is engaged in a duty which he is employed to perform.

"The words 'arising out of' refer to the origin or cause of the accident, and are descriptive of its character, while the words 'in the course of' refer to the time, place and circumstances under which the accident takes place." [Schneider on Workmen's Compensation Law, p. 500.] See also, Dambold v. Industrial Commission et al., 154 N.E. 128, 129 (Ill.). An accident "arises 'out of' the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a casual connection between the conditions under which the work is required to be performed and the resulting...