Ott v. Consolidated Underwriters
| Decision Date | 03 March 1958 |
| Docket Number | No. 22711,22711 |
| Parties | Betty Smith OTT, Appellant, v. CONSOLIDATED UNDERWRITERS and The Kansas City Club, a Corporation, Respondents. |
| Court | Missouri Court of Appeals |
Dwight Roberts, Kansas City, for appellant.
R. Robert Cohn, Kansas City, for respondents.
This is an appeal from the judgment of the circuit court affirming the award of the Industrial Commission denying compensation to Betty Smith Ott, claimant-appellant, in her claim against the Kansas City Club and Consolidated Underwriters, respondents.
Only two questions are presented on this appeal. The first is whether or not appellant was an employee of respondent Kansas City Club within the meaning of the Workmen's Compensation Act when her accident and resultant injuries occurred. The second question is, did her accident arise out of and in the course of her claimed employment with the Kansas City Club.
The following facts are undisputed. The Kansas City Club, an employer operating under the provisions of the Workmen's Compensation Law, ran an ad in the newspaper for a food checker. Claimant saw that ad and decided to apply for the job. On the morning of April 9, 1952, about 10:00 a. m., she went to the Kansas City Club building, located in downtown Kansas City. She entered the club building at its main entrance on Baltimore Avenue, and stated her business to a bell hop who met her at the door. She asked to see the auditor, who according to her testimony, is the one who customarily hires food checkers. She was taken to the auditor. She talked with him briefly, and he called in Myrtle Curfman, another employee of the club. Mrs. Curfman talked with claimant about her experience and her references, and left the room to check her references. In a short time Mrs. Curfman returned and took claimant back to the auditor's office. She was informed that her references were satisfactory. She was given a written application for employment as food checker which she signed. She was also given an 'employment contract' which both she and the respondent club signed. This contract, among other things, provided Claimant also filled out and signed the usual Government Form W-4, the withholding exemption certificate. As to what next occurred, we refer to claimant's testimony:
Mrs. Curfman had a time card filled out for claimant, told her of a group insurance policy that at a furture date would cover claimant; and
On cross-examination she was asked:
As to how the accident occurred claimant testified, '(Mrs. Curfman) walked from the time clock over to the first door with me; and she said: 'I will see you at 3:00 o'clock;' and, then, she said: 'Just a minute;' and, she told the timekeeper; she said: 'When this lady comes back in at 3:00 o'clock call me;' and, he said: 'All right.' And, she said: 'You go out this door;' and 'I went through the first door, and went through the second door, and, fell.' (Down a flight of steps sustaining severe injuries.) It was then approximately 10:35 a. m. At the close of the hearing the referee found 'that said accident was not an incident of nor did it arise out of and in the course of any employment with the Kansas City Club, her alleged employer, within the meaning of the Workmen's Compensation Law.' On appeal the Industrial Commission ruled:
One member of the commission dissented on the ground he believed she had become an employee and was entitled to compensation for her injuries received while leaving the premises.
We first turn to those portions of the transcript that are involved in the finding of the majority of the Commission that by deposition she had testified she was going to seek other employment and a better job if possible. Claimant's counsel says this finding is not supported by any competent or substantial evidence.
According to the transcript, after her accident claimant's prior counsel filed a common law action based on negligence against the Kansas City Club on her behalf for damages for her injuries sustained in her fall down the steps. In connection with that suit claimant's deposition was taken several times. She refused to sign them claiming they were not accurate. At her compensation hearing before the referee she was read numerous questions and answers contained in those depositions which indicated she had not unconditionally accepted the employment with the Kansas City Club but rather had a prior appointment to go immediately from her Kansas City Club interview to a hotel for an interview for a job, and if she obtained that job she did not plan on returning to the Kansas City Club for work. After these long portions of those depositions, including numerous questions and answers, were read to plaintiff and she was finally asked if she had made those answers to those questions she replied, Her testimony before the referee was that she was to be interviewed for another job with hours that did not conflict with those of the Kansas City Club employment; that she needed both jobs since the Kansas City Club job pay was so small, and that it was her intention to return at 3:00 and work at the Kansas City Club.
The unsigned depositions were not in evidence. Neither the reporter who took and transcribed them nor anyone else was a witness to prove that claimant made the statements respondents were attempting to attribute to her. Claimant did not admit she was asked those questions and made those answers. Thus, there was no competent and substantial evidence before the referee and commission from which the commission could find that claimant did not intend to return to the Kansas City Club at 3:00 o'clock for work under her contract of employment, and in making our determination as to whether or not claimant was covered by the act, we do not consider the referred to material from the depositions.
Nonetheless the Industrial Commission has made its ultimate finding that claimant was not within the coverage of the act when she was injured and we must follow the long-established rule that claimant as the one who wishes to bring hereself within the applicability of the Workmen's Compensation Act has the burden of proof of showing that she is within its terms. Hogue v. Wurdack, Mo.App., 298 S.W.2d 492, 499.
We turn to the basic and critical question in this case, namely, was plaintiff while on the premises of the Kansas City Club an employee of that club within the meaning of the Workmen's Compensation Act and ever, even for one moment, under the coverage of that act. If so, and if her injuries arose out of and in the course of her employment, respondents tacitly concede that she is entitled to compensation as is any employee injured while still on the employer's premises and in the act of leaving those premises. Metting v. Lehr Construction Co., 225 Mo.App. 1152, 32 S.W.2d 121, 124; ...
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