De Moss v. Evens & Howard Fire Brick Co.

• Decision Date: 07 March 1933
• Docket Number: No. 22501.,22501.
• Citation: 57 S.W.2d 720
• Court: Missouri Court of Appeals
• Parties: DE MOSS v. EVENS & HOWARD FIRE BRICK CO. et al.

57 S.W.2d 720

DE MOSS v. EVENS & HOWARD FIRE BRICK CO. et al.

No. 22501.

St. Louis Court of Appeals. Missouri.

March 7, 1933.

Appeal from Circuit Court, St. Louis County; Robt. W. McElhinney, Judge.

"Not to be published in State Reports."

Proceeding under the Workmen's Compensation Act by Mrs. Mae De Moss, dependent widow, for the death of her husband, Louis De Moss, employee, opposed by the Evens & Howard Fire Brick Company, employer, and the United States Casualty Company, insurer. From a judgment reversing an award of the Workmen's Compensation Commission rendered in favor of employer and insurer, employer and insurer appeal.

Reversed and remanded, with directions.

Watts & Gentry and Arnot L. Sheppard, all of St. Louis, for appellants.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

BENNICK, Commissioner.

This is a proceeding under the Workmen's Compensation Act (sections 3299-3376, R. S. 1929, Mo. St. Ann. §§ 3299-3376), which reaches this court on the appeal of the employer and insurer from the judgment of the circuit court of St. Louis county, reversing an award of the commission in their favor. Mrs. Mae De Moss, the dependent widow of Louis De Moss, employee, is the claimant, while Evens & Howard Fire Brick Company is the employer, and United States Casualty Company the insurer.

The claim is for compensation for the death of De Moss, who died on March 10, 1929, from pneumonia superinduced by an infection which originated on the middle finger of the right hand. The basis of the claim is that the injury was the result of an accident arising out of and in the course of De Moss' employment; the alleged accident having occurred on February 25, 1929, when he scratched or cut his finger upon a piece of glass. There is no dispute about the fact that De Moss died from the cause indicated; but the controversy is rather upon the question of whether the award of the commission, denying compensation upon the ground that there had been a failure of proof that death was by accident arising out of and in the course of the employment, was warranted under the evidence. The circuit court reversed the award upon the grounds that the commission had acted in excess of its powers in the exclusion of certain evidence offered on behalf of claimant, and that there was not sufficient competent evidence in the record to have warranted the making of the award. The propriety of the entry of such judgment of reversal is the sole ground of error assigned for our consideration on this appeal.

The case is now before us on the second appeal; our former decision being reported in 225 Mo. App. 473, 37 S.W.(2d) 961. On that occasion the appeal was from the judgment of the circuit court affirming an award of the commission in favor of the claimant; and our judgment was one reversing the case upon the ground that the evidence had not connected the injury with the employment, and remanding the same to afford claimant the opportunity to supply the hiatus in her proof if she was able to do so.

Considering first the question of the sufficiency of the evidence to have warranted the adverse award of the commission, it is perhaps proper to state in few words the scope of appellate review as it has come to be well understood, namely, that the findings and award of the commission have the force and effect of the verdict of a jury; that the findings made are conclusive upon the appellate court if they may be said to have been sustained by sufficient competent evidence; and that, in testing the sufficiency of the evidence in the whole record to have supported such findings, the appellate court must look only to the evidence most favorable to bear out the view of the case which the commission saw fit to take. Jones v. Century Coal Co. (Mo. App.) 46 S.W.(2d) 196; Schaefer v. Lowell-Krekeler Grocery Co. (Mo. App.) 49 S.W. (2d) 209; Kasper v. Liberty Foundry Co. (Mo. App.) 54 S.W.(2d) 1002; Gessler v. Liggett & Myers Tobacco Co. (Mo. App.) 54 S.W. (2d) 806.

Of course, in a case where the facts are undisputed, the ultimate question is one of law and not of fact, and the commission's finding either way upon such undisputed facts is not conclusive upon the reviewing court (Sawtell v. Stern Bros. & Co., 226 Mo. App. 485, 44 S.W.(2d) 264; Thurman v. Fleming-Young Coal Co. (Mo. App.) 49 S.W.(2d) 288; Seifert v. Heil Packing Co. (Mo. App.) 52 S.W.(2d) 579; Hassell v. C. J. Reineke Lumber Co. (Mo. App.) 54 S.W.(2d) 758); but, if the evidence, taken along with the inferences legitimately deducible therefrom, is such as to have warranted a finding either way upon the question of the right to compensation, and the commission, as the arbiter of the facts, has resolved the controversy in favor of one party or the other, then the reviewing court is bound by such findings, and it will matter not that the evidence might have supported a contrary finding with equal propriety, had the commission found the facts in that way, Doughton v. Marland Refining Co. (Mo. Sup.) 53 S.W.(2d) 236.

The record shows that De Moss was employed as a carpenter, his work consisting largely of the construction and repair of wheelbarrows. For the purposes of his work he was furnished a workbench in the carpenter shop; the same being of sufficient height that he could stand before it and perform certain of his duties upon it. However, there were many instances when it was necessary for him to hold the material in place with his knees, as when using a chisel or bit, or when sawing; and for such purposes a stool was provided, which was in reality a much lower workbench, possibly four feet square, two feet in height, and located some four feet from the workbench proper.

Alongside the stool, and overlapping one side of it, was a box filled with assorted pieces of glass which were intended to be used around the plant for windowpanes and the like. The box was about twelve inches high, and, while some of the pieces of glass extended as much as four inches above the top of the box, they nevertheless lacked from six to eight inches of reaching up to the top of the stool. The testimony showed that the pieces of glass were covered with dust, and, in fact, that dust had accumulated and settled upon everything in the entire room.

While it was De Moss' job to cut the glass up into whatever sizes were desired, he had not worked upon the glass for two or three weeks prior to the date of the alleged accident, and there was positive testimony that he did not work at it on the morning in question, his duties at that time consisting of making repairs to wheelbarrows in response to an order from the carpenter foreman, as has been heretofore pointed out. But, though he had no duties to perform in connection with the handling of the glass, there was testimony that the work he was doing would at times require him to pass by the box of glass, as when going to the section of the room where...