Ossery v. Burger-Baird Engraving Co.

• Decision Date: 13 April 1953
• Docket Number: No. 43148,BURGER-BAIRD,No. 2,43148,2
• Citation: 256 S.W.2d 805
• Parties: OSSERY v.ENGRAVING CO. et al
• Court: Missouri Supreme Court

Page 805

256 S.W.2d 805

OSSERY v. BURGER-BAIRD ENGRAVING CO. et al.

No. 43148.

Supreme Court of Missouri, Division No. 2.

April 13, 1953.

John G. Brannon, Ward A. Dorsey, Stephen R. Pratt, North Kansas City, for appellant.

Don M. Jackson, Kansas City, for respondents. Gage, Hillix, Moore & Park, Kansas City, of counsel.

BOHLING, Commissioner.

Mabel R. Ossery, widow and sole dependent, prosecutes this appeal from a judgment of the circuit court affirming an award of no compensation under the Workmen's Compensation Law by the Industrial Commission of the State of Missouri for the death of Samuel C. Ossery, her husband, an employee of Burger-Baird Engraving Company, a corporation. Claimant contends she proved the death of her husband was the result of an accident arising out of and in the course of his employment, and that the final award of the commission to the contrary (reversing an award by the referee of $150 for burial expenses and $12,000 for death benefit), and the judgment of the circuit court affirming said final award are erroneous because there was no competent and substantial evidence upon which to base the award. We have jurisdiction by reason of the amount involved. Section 287.240 RSMo 1949, V.A.M.S.; Shroyer v. Missouri Livestock Comm. Co., 332 Mo. 1219, 61 S.W.2d 713, 715[9-12]; Sayles v. Kansas City Structural Steel Co., 344 Mo. 756, 128 S.W.2d 1046, 1050.

The Burger-Baird Engraving Company occupied space in the Graphic Arts building on the northwest corner of Tenth and Wyandotte streets, Kansas City, Missouri. Its lease covered all rooms on the seventh floor (sic: 'Rooms All on seventh floor') and the northwest wing and room 803 on the eighth floor.

On March 1, 1950, Mr. Ossery reported for work at 8:30 a. m. at the Burger-Baird Engraving Company and met instantaneous death about 9:30 when his body struck the pavement under an open window of the elevator lobby on the seventh floor.

Four or more tenants occupied the eighth floor of the Graphic Arts building. The elevator service for the building stopped at the seventh floor, and the tenants on the eighth floor had to use the stairway. The elevator lobby, or hall, is near the center of the building on the east side. The elevator is about six feet from the east wall and on the north side of the lobby. The space between the wall and the elevator is a passageway north to the employees' entrance of the employer. The stairways, leading up and down, are located on the south side of the lobby. The entrance to the employer's offices is at the southwest corner of the lobby. The employer occupies rooms to the south, west and north of the elevator lobby, and doors and corridors within this space afford access to various departments of the employer. The lobby has three windows on the east side, the bottom of the window sills being 27 inches above the floor level. The window to the north has a radiator in front of it and the one to the south is over the stairway leading down and 44 inches above the stair landing. The center window is the easiest 'to go out of.'

Donald Byrd, who at that time made deliveries for the employer, was in the elevator lobby waiting for the elevator at approximately 9:30. He saw Mr. Ossery come out of the doorway at the employees' entrance. He asked him how he was feeling. Mr. Ossery made a reply but witness did not understand his answer as the elevator was approaching and making a noise. When he boarded the elevator, Mr. Ossery was going back into the shop. Mr. Ossery had on his overalls. He appeared normal. He was walking normally and witness did not notice a cane or see him lean on anything. All windows in the lobby were closed at that time. The weather was below freezing but it was warm in the lobby. When the elevator arrived at the first floor, less than two minutes later, a boy came up and said a man was lying out there. He looked. He then went back upstairs and found the center window of the lobby open.

Ben F. Seward, president of Burger-Baird Engraving Company, was claimant's witness. He was the only witness on the scope of Mr. Ossery's employment. He testified as follows: Mr. Ossery had worked for the company for 20 to 25 years. He was a photo-engraving finisher. He worked at a table, facing the light, on the north side of the building in the proofing department. (This was approximately 60 or more feet from the employees' entrance.) His duties required him to examine the face of the engraving plates for defects, to make corrections, and put the final touches on the plates by hand tools. He was a highly skilled man, paid by the hour, and earned $100 a week. Being paid by the hour, the employer had rules and the accepted practice was for the finishers to stay on the job during working hours, and for the apprentices to run the errands of the finishers. A finisher might have occasion to go into the woodworking department on the east side of the building and into which the employees' entrance opened. Nothing about his work required Mr. Ossery to leave the shop or premises or go into the hall during working hours. If he went into the hall during working hours, he left his job and business, because it is a public hallway and no part of the company's property. Asked by claimant's counsel whether 'Mr. Ossery under no circumstances could have gone into this seventh floor hallway on some matters that might be incidental to his employment,' the witness answered: 'I have the word of the superintendent that he hadn't sent him out there, or anybody else'; and pressed for his personal knowledge whether in the general course of his employment Mr. Ossery would have occasion to go into the hallway, he answered: 'Never, to my knowledge.' Witness was out of the state at the time of Mr. Ossery's death. One could go from the north to the south rooms of the employer by way of the elevator lobby; but the employees wore work clothes and to the witness' knowledge never used the lobby but used the corridors and doors within the rooms for that purpose. The owner of the building placed an iron bar across the center window of the lobby after Mr. Ossery's death. It is the only window with a bar across it. There is no bar across any window on the leased premises.

Mrs. Ossery testified that her husband had been but was not on March 1, 1950, under the treatment of a physician; that he injured his knee in October, 1949, wore a kneeband, and used a cane; the physician gave him phenobarbital tablets and, as we read the record, on a Sunday about two weeks before his death Mr. Ossery did not awaken until late Sunday nignt; that on the Saturday and Sunday prior to his death Mr. Ossery's 'knee wobbled on him' when he got up and he picked up his cane to go to the bathroom, and that he had a dizzy spell while waiting for a ride to work on the day of his death.

Mr. Seward testified that for some time Mr. Ossery had been sick, discouraged and despondent.

Additional facts are stated in the course of the opinion.

The parties direct our attention to the frequently quoted passage from Wahlig v. Krenning-Schlapp Groc. Co., 325 Mo. 677, 29 S.W.2d 128, 130[1, 2], that under now sections 287.120(1) and 287.020(5), RSMo 1949: '* * * an injury arises 'out of' the employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury; and that an injury to an employee arises 'in the course of' his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto.' Karch v. Empire Dist. El. Co., 358 Mo. 1062, 218 S.W.2d 765, 770 citing cases.

The...