Parrish v. Kansas City Sec. Service

• Citation: 682 S.W.2d 20
• Decision Date: 02 October 1984
• Docket Number: No. WD,WD
• Parties: Lloyd W. PARRISH (Deceased) and Marjorie L. Parrish, Widow, et al., Respondents, v. KANSAS CITY SECURITY SERVICE, et al., Appellants. 34362.
• Court: Court of Appeal of Missouri (US)

Page 20

682 S.W.2d 20

Lloyd W. PARRISH (Deceased) and Marjorie L. Parrish, Widow, et al., Respondents, v. KANSAS CITY SECURITY SERVICE, et al., Appellants.

No. WD 34362.

Missouri Court of Appeals,

Western District.

Oct. 2, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Nov. 27, 1984.

Application to Transfer Denied

Jan. 15, 1985.

David W. Shinn, Kansas City, for appellants.

Roger J. Staab, Kansas City, for respondents.

Before TURNAGE, C.J., and SOMERVILLE and MANFORD, JJ.

MANFORD, Judge.

This is an appeal from the judgment of the circuit court which affirmed a previous award for worker's compensation death benefits by the Missouri Labor and Industrial Relations Commission. The judgment is reversed with directions.

Appellant, Kansas City Security Service Co. (hereinafter employer) presents two points, which in summary charge that the circuit court erred in affirming the award of the Commission because (1) said award was not supported by substantial and competent evidence, and (2) the award was based solely upon the found-dead presumption which was rebutted by evidence adduced.

The pertinent facts are as follows. The employer herein provides uniformed guard services for various companies. One such company is Comet Electronics, located at 4800 Deramus, Kansas City, Missouri. Lloyd Parrish was employed as a guard by the employer at Comet. Parrish worked the 4:30 p.m. to 11:00 p.m. shift on Monday through Friday. Parrish also had a second job (unrelated) cleaning two churches.

Comet Electronics supplies and services remote switching devices in local railroad yards. Parrish had only two functions to perform in carrying out the security services for the employer at the Comet building. The first function was to "make a watchman's clock round" every hour. In making this "round", Parrish carried a specially designed clock, walked to six different locations (four locations were inside the Comet building and two were just outside the Comet building), took a key from each location and turned the key in the lock which in turn would cause the clock to register on a rotating tape the time and location.

Parrish and his fellow guards were instructed to make a "round" every hour in the order of location one through six, or just the opposite from location six through a reverse order to location one. Concerning the two "outside locations", Parrish and the others were instructed to step outside, turn the key, and return to the inside of the building. The duties of Parrish and the others did not require them to be outside the building other than the procedure described above for the two outside key locations. Parrish and the others were provided no written instructions of their duties and they were trained on the job by a supervisor for the employer. Some of the guards, including Parrish, were authorized to carry a firearm. Some of the guards carried the weapons on their person and some did not.

On October 17, 1975, Parrish left his home at approximately 3:30 p.m. for his work tour at Comet. Parrish drove his own automobile to and from work. His work duties did not include the use of his automobile. Between 6:01 and 6:45 p.m. on the evening of October 17, 1975, Parrish's body was found between the front of Parrish's automobile and the front showroom of the Comet building. The showroom area had a plate glass window. The top portion of the body was just inside the building as the plate glass had been broken. The lower portion of the body was on the outside of the building.

The local fire department arrived on the scene first. They were followed by local police, who sealed off the area and conducted an investigation. When the police arrived, the hood of Parrish's vehicle was down and the ignition was off. (A police investigator later testified that there was no tampering with anything at the scene.) Police found a red-handled screwdriver and a flashlight on the ground near Parrish's body. (The surviving widow, Marjorie Parrish later testified that her late husband used a red-handled screwdriver on the janitor's job, which he went to after his duty tour at Comet. The screwdriver was kept either on his person or in the glove compartment of his automobile.) Police investigators also found another screwdriver and a pair of pliers under the automobile hood. Also under the hood they found a shop rag on the left side of the engine. Investigators also observed that the engine air cleaner was not in its regular or normal position and the wing nut which held it in place was missing. They also observed that the transmission was in low gear and the emergency brake was on. Investigators later stated that the engine was still warm and there was an "overheating" smell coming from the automobile. The Comet building contained smoke from the burning transmission bands of the Parrish automobile.

The Parrish automobile was towed to the local police garage and examined. The police mechanic observed that the linkage between the accelerator and the carburetor was sticking. From their investigation, police investigators concluded that there was no evidence of any criminal conduct, and that Parrish was accidentally killed while working on his automobile. Mrs. Parrish later stated that while she did not know if her husband worked on his automobile at the time of his death, he did not normally perform work on his automobile.

A former employee of Kansas City Security, Robert Hemmer, who had also worked at Comet, testified for respondents. Hemmer, in summary, testified to the following pertinent facts. He stated that there was no key location outside of the front door of the Comet building and that the clock-key round would not take a guard to the front door. He further stated that the telephone could not be answered from outside. He also stated that there were no job duties which took a guard outside at the front door and that the guards were not supposed to leave the building.

Other evidence revealed that the nearest clock-key location was some 100 to 150 yards from where the body of Lloyd Parrish was found. Other evidence revealed no outside speaker for the telephone near the front door of the Comet building and that the telephone could not be heard by anyone outside at the front of the building.

At the close of the hearing, the Administrative Law Judge found from all the credible evidence and by application of presumptions allowed by law, that Lloyd Parrish died as a result of an accident arising out of and in the course of his employment. The decisions was appealed to the Commission, which affirmed the award with one Commissioner dissenting. The employer then appealed the Commission ruling to the circuit court, which in turn affirmed the award. The appeal to this court then followed.

As noted above, the appellant-employer presents two points, charging that the trial court erred in affirming the Commission's award. These two points are so interrelated, they are not discussed separately, but rather, this decision, in disposing of this appeal, takes up both issues conjunctively.

It is evident from the "Findings of Fact and Rulings of Law", that the Administrative Law Judge relied upon and applied the "found-dead presumption". No detailed explanation of that presumption is undertaken herein as that has been previously provided in Russell v. Southwest Grease and Oil Co., 509 S.W.2d 776 (Mo.App.1974). It can be said that Russell acknowledges and applies the following rule that there arises a rebuttable presumption if an employee is shown to have died or been injured under unexplained circumstances on the employer's premises and during the hours of employment, that the death or injury resulted from an accident arising out of and in the course of employment.

Immediately, certain other factors must be considered. The first worthy of mention is the caution expressed in Russell that the rebuttable presumption does not extend to a showing of the elements of an accident. This court, in Russell, also went on to declare at 779:

"In the many Missouri cases discussing the presumption, the element of accident either plainly appeared or was readily inferable from the surrounding circumstances, and the only debated issue was whether the injury 'arose out of and in the course of employment'.

There is sound logic in presuming that an unexplained injury or death which occurs on the premises and during the time of employment has a causal connection with the employment activities. Work-relatedness naturally follows as a rebuttable presumption from those facts." (emphasis added)

Stated another way, the rebuttable presumption, in absence of contrary evidence, provides the causal connection between duties or activities of employment and the resulting death or injury. The presumption neither prevents proof of the lack of causal connection, nor eliminates as part of the claimant's burden of proof of a causal connection. The presumption, in absence of any proof either as to the cause of death or injury or the causal connection, simply supplies the two critical elements of a claim.

As noted from the quote above, causal connection must be shown either by evidence or the presumption. The mere fact that an employee is found dead or injured on the employer's premises during the hours of employment does not, standing alone, conclusively prove a claim for benefits. There remains the requirement that the death or injury had occurred "under unexplained circumstances." It is obvious that if the circumstances giving rise to the injury or death are by proper evidence or reasonable inferences therefrom explained, two critical issues are resolved. First, the actual (and hence explained) cause of death or injury is disclosed. Second, it becomes more readily possible to determine if the death or injury "arose out of and in the course of employment." As regards this second issue, the question of causal connection is also resolved.

The...