De Moss v. Evens & Howard Fire Brick Co.

• Decision Date: 28 April 1931
• Citation: 37 S.W.2d 961,225 Mo.App. 473
• Parties: MAE E. DeMOSS, RESPONDENT, v. EVENS & HOWARD FIRE BRICK COMPANY, A CORPORATION, EMPLOYER, AND UNITED STATES CASUALTY CO., A CORPORATION, INSURER, APPELLANTS
• Court: Missouri Court of Appeals

37 S.W.2d 961

225 Mo.App. 473

MAE E. DeMOSS, RESPONDENT, v. EVENS & HOWARD FIRE BRICK COMPANY, A CORPORATION, EMPLOYER, AND UNITED STATES CASUALTY CO., A CORPORATION, INSURER, APPELLANTS

Court of Appeals of Missouri, St. Louis

April 28, 1931

Appeal from the Circuit Court of the City of St. Louis.--Hon Granville Hogan, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Watts & Gentry and Arnot L. Sheppard for appellants.

(1) There is no evidence in the record which even tends to show that respondent's decedent received the injury to his finger while he was acting within the scope of his employment, or that such injury arose therefrom. (a) The evidence in the record wholly fails to show where, when or under what circumstances decedent received the scratch on his finger. That the burden rested upon respondent to prove that her husband was injured while in the course of his employment, and that such injury arose out of such employment, admits of no doubt whatever. This record discloses no such proof. Smith v. Levis-Zukoski Mercantile Co., 14 S.W.2d 470; Lezala v. Industrial Commission, 175 N.W. 87, 89, 170 Wis. 532; In re Gorski, 116 N.E. 811, 812, 227 Mass. 456; McMahan's Case, 131 N.E. 167, 238 Mass. 456; Chicago Daily News v Industrial Commission, 137 N.E. 797, 306 Ill. 212; Freeman Coal Mining Co. v. Industrial Commission, 145 N.E. 615, 315 Ill. 84; Jersey Ice Cream Company v Industrial Commission, 140 N.E. 862, 309 Ill. 187; Whiting Mead Commercial Co. et al. v. Industrial Commission, 228 P. 352, 67 Cal.App. 618; Sponatski's Case, 108 N.E. 466, 220 Mass. 526; In re Sanders' Case, 113 N.E. 355, 357, 224 Mass. 558; Chrisholm's Case, 172 N.E. 179 (Mass.); Foster's Case, 136 N.E. 77, 78, 242 Mass. 386, 388; Valentine et al. v. Weaver, 228 S.W. 1036 (Ky.); Hubbard v. Republic Motor Truck Co., 185 N.W. 715, 216 Mich. 358; Wiio v. Quincy Mining Co., 187 N.W. 249, 217 Mich. 476; In re Savage, 110 N.E. 283, 222 Mass. 263. (b) It is necessary to base an inference upon an inference to affirm this case: (1) As there is no direct or circumstantial evidence that decedent's injury arose in the course of and out of his employment, or even that it occurred on his employer's premises, if the Court is to so find, it must do so by inference or presumption; (2) but that inference alone will not suffice, and it becomes necessary to indulge in the further inference that such injury also arose out of his employment. It has been repeatedly held in this State that such a course cannot be followed. State ex rel. Mo. P. Ut. Co. v. Cox et al., 250 S.W. 551, and cases cited; Sullivan v. Ry., 297 S.W. 945, 950, and cases cited. (c) Like the verdict of a jury, the finding and award of the Workmen's Compensation Commission cannot be based upon speculation and conjecture, but must rest upon a solid foundation of facts. Therefore, where the evidence either fails to disclose when, how or where an employee was injured, or presents two or more theories which might explain the injury, a finding, based on such evidence, is based upon speculation and cannot stand. Rogers v. Packing Company, 166 S.W. 880, 180 Mo.App. 227; Bennett v. Equipment Co., 214 S.W. 244; McGee v. Railroad, 214 Mo. 530; Battles v. Railroad, 178 Mo.App. 596; Strother v. Railroad, 188 S.W. 1102; Grant v. Railroad, 190 S.W. 586; Goransson v. Manufacturing Co., 186 Mo. 300; Marlowe v. Kilgen, 252 S.W. 427; Bowman v. A. C. & F., 266 Mo. 53; Wagner v. Railway, 232 S.W. 771; Mahany v. Railway, 228 S.W. 821.

Abbot, Fauntleroy, Cullen & Edwards for respondent.

(1) A state or condition having been proved to exist, under the rule of evidence known as the rule of continuity it will be presumed to continue to exist. Greenleaf on Evidence (16 Ed.), secs. 14-1; State v. Jasper, 24 S.W.2d 161; Nelson v. Jones, 245 Mo. 579, 151 S.W. 80; Pope v. K. C. C. Ry. Co., 99 Mo. 400, 12 S.W. 891; Canty v. Halpin, 242 S.W. 97, 294 Mo. 118. (2) The appellate courts will only consider the evidence most favorable to support the Missouri Compensation Commission's finding. The commission's finding is like the verdict of a jury and the appellate court will look only to the most favorable evidence to support it and it cannot change the award if there is any evidence on which the finding may be based, since the court is not at liberty to weigh conflicting evidence: Wheat v. Whitney & Son, 34 S.W.2d 158; Miller v. St. Jos. Trans. Co., 32 S.W.2d 449; Huelsman v. Stute & Co., 28 S.W.2d 387; Cobb v. Standard Accident Insurance Co., 31 S.W.2d 573; Cotter v. Valentine Coal Co., 222 Mo.App. 1138, 14 S.W.2d 660; Kinder v. Hannibal Car Wheel & F. Co., 18 S.W.2d 91; Perdew v. Neufer Cedar Co., 201 Mich. 520, 167 N.W. 868; Rollins v. Keller Construction Co., 24 S.W.2d 1027; Brewer v. Ash Grove Lime & P. C. Co., 25 S.W.2d 280. (3) That the deceased was injured by an accident arising out of and in the course of his employment may be shown by circumstantial evidence. Vulcan Detinning Co. v. Industrial Commission, 295 Ill. 141, 128 N.E. 917; Sparks Milling Co. v. Industrial Commission, 293 Ill. 350, 127 N.E. 737; Tennessee Chemical Co. v. Smith, 145 Tenn. 532, 238 S.W. 97. (4) The evidence is this case is sufficient to justify the award made by the Workmen's Compensation Commission to the respondent and constitutes sufficient proof that the death of the deceased resulted from an accident in the course of and arising out of his employment; for even slender evidence is sufficient, and facts may be found of which there was no direct proof, the finding being based on inferences arising from the facts proved. Mountain Ice Co. v. Derkin, 144 A. 6; Westman's Case, 106 A. 532, 118 Me. 133; Saunders v. New England Collapsible Tube Co., 110 A. 538, 95 Conn. 40; Huelsman v. Stute & Co., 28 S.W.2d 387; Slemba v. Wm. C. Hamilton & Sons, 290 Pa. 267, 138 A. 841; Interlake Pulp & Paper Co. v. Quinn, 186 Wis. 228, 202 N.W. 175; Vulcan Detinning Company v. Industrial Commission, 295 Ill. 141, 128 N.E. 917; Sparks Milling Company v. Industrial Commission, 293 Ill. 350, 127 N.E. 737; Tennessee Chemical Company v. Smith, 145 Tenn. 532, 238 S.W. 97; Calderera v. Nathan & Co., 192 N.Y.S. 737; McRae v. Morgan & Wright, 205 Mich. 493, 171 N.W. 394; Kendall v. Department of Labor, 139 Wash. 379, 247 P. 457, affd. in 141 Wash. 481, 252 P. 107; State ex rel. v. District Court, 139 Minn. 30, 165 N.W. 478.

HAID, P. J. Becker and Nipper, JJ., concur.

OPINION

HAID, P. J.

This is an appeal from a judgment of the circuit court affirming an award of the Workmen's Compensation Commission in favor of the widow of Louis DeMoss who had been an employee of Evens & Howard Fire Brick Company.

The only question involved is whether the evidence is sufficient to support the finding of the commission, that the injury the employee received and which caused his death arose out of and in the course of his employment.

Claimant endeavored to have introduced testimony of the deceased's statement as to the circumstances of the injury, but, upon objection, such testimony was excluded. So far as the record discloses, there was no witness to the accident, and, therefore, there is no direct proof to support the finding of the commission.

The evidence upon which the finding was based may be summarized in this way: Deceased left his home on the morning of February 25, 1929; he stopped at his son's home and at that time did not appear to have any injury; during that morning while at his place of employment, sometime before noon, a fellow-workman observed that deceased had the middle finger on his right hand wrapped up; on his way home at lunch the deceased again stopped at his son's home and the latter observed the deceased's wrapped finger, and when he reached home, the wife and daughter of the deceased observed mercurochrome on the finger of the deceased. The fellow workman of the deceased also testified that there was a box of broken glass about six feet from the work bench of the deceased but he had not observed the deceased using that box at anytime or go to it or near it. The foreman under whom the deceased worked testified that the deceased did not report to him that he had suffered any kind of accident; that there was a box of glass on the floor about six feet from the desk of the deceased which had been there for a number of days and which the deceased had asked the foreman to remove; it was the duty of the deceased to cut such glass in certain sizes and he had worked on it some two or three weeks previous to the date of the injury; that the deceased did not work on it on the morning of the injury but was working on wheelbarrows; that when deceased spoke to him about moving the glass he told deceased that when they finished with the job the box would be put away; that he did not give deceased any job on the glass on the day of his injury but that deceased was working on wheelbarrows. About 8:30 on the evening following the injury, deceased suffered a chill and on the morning of the 28th his case was diagnosed as blood poisoning by the attending physician and on March 1 he was sent to the hospital where he died ten days thereafter.

Was the evidence sufficient to warrant the finding of the commission? If it was, such finding like the verdict of a jury, is binding on this court and in the same way becomes the basis for a court judgment. [Hager v. Pulitzer Publishing Co. (Mo. App.), 17 S.W.2d 578; Woods v. American C. & I. Co. (Mo. App.), 25 S.W.2d 144; Brewer v. Ash Grove L. & P. C. Co. (Mo. App.), 25 S.W.2d 1086; Rolens v. Keller Const. Co. (Mo. App.), 24 S.W.2d 1077; Miller v. St. Joseph Transfer Co. (Mo. App.), 32 S.W.2d 449; Bricker v. Gille Mfg. Co. (Mo. App.), 35 S.W.2d 662.]

In considering the question whether the evidence sustains the findings...