Pearce v. Modern Sand & Gravel Co.

• Citation: 99 S.W.2d 850,231 Mo.App. 823
• Parties: GRACE PEARCE, WIDOW, MARY MARGARET PEARCE AND BERNICE PEARCE, DAUGHTERS, DEPENDENTS OF IRA PEARCE, EMPLOYEE, RESPONDENT, v. MODERN SAND AND GRAVEL COMPANY, A CORPORATION, EMPLOYER, APPELLANT
• Decision Date: 10 November 1936
• Court: Missouri Court of Appeals

99 S.W.2d 850

231 Mo.App. 823

GRACE PEARCE, WIDOW, MARY MARGARET PEARCE AND BERNICE PEARCE, DAUGHTERS, DEPENDENTS OF IRA PEARCE, EMPLOYEE, RESPONDENT, v. MODERN SAND AND GRAVEL COMPANY, A CORPORATION, EMPLOYER, APPELLANT

Court of Appeals of Missouri, St. Louis

November 10, 1936

Motion for Rehearing Overruled December 8, 1936.

Rehearing Denied 231 Mo.App. 823 at 830.

Appeal from Circuit Court of Franklin County.--Hon. Ransom Albert Bruer, Judge.

AFFIRMED.

Judgment affirmed.

Eliot Blayney & Bedal for appellant.

(1) An accident to be compensable under the Missouri Workmen's Compensation Act must arise out of and in the course of the employment. Sec. 3301, Revised Statutes Missouri 1929. (2) The burden of proof is on claimants to show that the death of the employee resulted from an accident arising out of and in the course of the employment. Munton v. Driemeier Stor. & Mov. Co., 223 Mo.App. 1124, 22 S.W.2d 61 (St. Louis 1930); Lanahan v. Hydaulic-Press Brick Co., 55 S.W.2d 327 (St. Louis, 1932); Hebbeler v. St. L. Pub Serv. Co., 72 S.W.2d 130 (St. Louis, 1934). (3) The fact that an employee is injured or killed on the premises during working hours forms no basis for the presumption that the accident arose out of and in the course of the employment. Lanahan v. Hydraulic-Press Brick Co., supra; Dunnaway v. Stone & Webster Eng. Co., 227 Mo.App. 1211, 61 S.W.2d 398 (Kansas City, 1933); Reed v. Sensenbaugh, 86 S.W.2d 388 (Springfield, 1935). (4) An injury arises "out of" the employment only when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury or death. Wahlig v. Krenning-Schlapp Gro. Co., 325 Mo. 677, 29 S.W.2d 128 (Div. 2, 1930); Phillips v. Air Reduction Sales Co., 85 S.W.2d 551 (Mo. Sup. Ct., Div. 1, 1935); Stanalind Pipe Line Co. v. Davis, 47 P.2d 163 (Sup. Ct. Okla., 1935). (5) Where all of the evidence in the record is undisputed the Circuit Court or the Court of Appeals has the right to make its own conclusions of law and render its own judgment or to remand to the Compensation Commission with directions as to the judgment to be rendered and a rehearing should not be ordered. Kristanik v. Chevrolet Motor Co., 335 Mo. 60, 70 S.W.2d 890 (Banc, 1934); Hebbeler v. St. Louis Pub. Serv. Co., supra.

Altman, Bremser & Scannell and E. C. Friedewald for dependents.

(1) Finding of Workmen's Compensation Commission that accident arose out of and in the course of employment is finding of fact which is conclusive on Circuit and Appellate Courts, as would be the verdict of a jury if supported by any substantial and competent evidence. Mo. St. Ann. No. 3301, 3342, pp. 8232, 8275; Reed v. Sensenbaugh, 86 S.W.2d 388; Bowen v. Hall-Baker Grain Co., 228 Mo.App. 332, 67 S.W.2d 536; Goebel v. Missouri Candy Co., 50 S.W.2d 741; Noto v. Hemp & Co., 83 S.W.2d 137; Borghoff v. Walter Freund Bread Co., 93 S.W.2d 1032. (2) In determining whether or not the award made by the Commission was warranted by the evidence, on appeal the court considers only the evidence most favorable to support the award, together with all reasonable inferences to be drawn therefrom. Cottingham v. General Material Co., 50 S.W.2d 661; Kizak v. Medart Co., 93 S.W.2d 65, l. c. 66; Kings v. Mark Twain Hotel, 60 S.W.2d 677. (3) The assault arose out of and in the course of the employment as the result of the peculiar nature of the employment and the particular work the employee was engaged to perform. Cranney's Case, 232 Mass. 149; Hartnett v. Thos. J. Stein Co., 216 N.Y. 101; American Smelting & Refining Co. v. Cassil, 175 N.W. 104; Verschlerser v. Jos. Stern & Son, 128 N.E. 126; McNichol Case, 215 Mass. 497; Martin v. Chase, 194 Iowa 407, 189 N.W. 958; Sprang v. Broadway Brewing & Malt Co., 169 N.Y.S. 574; Stark v. Wilson, 114 Kan. 459, 219 P. 507; Reithel's Case, 222 Mass. 163, 109 N.E. 951; Baum v. Industrial Commission, 228 Ill. 516; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Teague v. Laclede Christy Clay Products Co., 52 S.W. 880; Gilmore v. Ring Construction Co., 61 S.W.2d 764; Keithley v. Stone & Webster, 49 S.W.2d 296; Jackson v. Euclid-Pine Investment Co., 22 S.W.2d 899; Reed v. Sensenbaugh, 86 S.W.2d 388.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

--This is an appeal from a judgment of the Circuit Court of Franklin County affirming an award of the Missouri Workmen's Compensation Commission of $ 150 for burial expenses, and death benefits of $ 16.67 per week for three hundred weeks payable to Grace Pearce, widow of Ira Pearce, but conditioned that if Grace Pearce dies or remarries prior to the time said award is paid, then the remainder to be paid to Margaret Pearce and Bernice Rhodes, daughters and dependents of Ira Pearce, employee, in equal shares.

Ira Pearce is referred to by witnesses in their testimony as "Dick" Pearce.

The alleged accident, which resulted in the fatal shooting of Ira Pearce, occurred on October 14, 1933, while deceased was in the employ as foreman of the Modern Sand & Gravel Company, a corporation, employer and appellant.

Under the provisions of Section 3323, Revised Statutes Mo. 1929, the award was commuted and ordered paid immediately in a lump sum inasmuch as the Sand & Gravel Company had not insured its liability.

The claim for compensation set out that the accident occurred on October 14, 1933, as follows: "15. Employee was foreman and was killed by an employee in defense of employer's business."

The answer to the claim admitted that Ira Pearce was in the employ of the Modern Sand & Gravel Company at its plant at Pacific, Missouri, on October 14, 1933, and stated as follows:

"Employer denies all statements made by claimant under question 15 of the claim for compensation; denies that employee was killed by another employee and denies that accident arose out of the employment. Employer states that employee was killed in a personal quarrel having no relationship whatsoever to the employment."

At the hearing before the Commission testimony was offered which developed that deceased Ira Pearce had been employed by the Sand & Gravel Company since January, 1933, and for the last seven months prior to his death had been the foreman in charge of the operation of the plant at Pacific, Missouri, at an average weekly wage of $ 25; that on October 14, 1933, Pearce was shot and killed by George Broyles on the Sand & Gravel Company's premises; that a few weeks prior to the killing George Broyles, who had been in the employ of the company, at a wage of fifty cents an hour, quit the services of the company.

There was testimony to the effect that when deceased was made foreman of the plant that Broyles resented that and complained of putting a man in as foreman over him and and another man who had been in the employ of the company much longer.

There was other testimony to the effect that Broyles held Pearce responsible, at least in part, for his not getting sufficient work at fifty cents an hour to properly support his family, and that Pearce conferred with Mr. Stiers, the president of the Sand & Gravel Company, about Broyles' complaint, and the president thought they might move him to some work in the mines at Illinois.

There was also testimony to the effect that Broyles was dissatisfied with working conditions and quit his job about three or four weeks prior to the time he killed Pearce. Broyles gave as a reason for quitting that he did not get enough work at the plant and that he had been there too long and wanted to make a change; that he thought he would operate a farm and could make more money at that than operating a dragline.

There was a six room house on the premises at the plant and Broyles and his wife occupied two rooms; Pearce occupied two rooms as an office and sleeping quarters when he spent the night at the plant, and his two rooms were also occupied by Melvin Martin, another employee; and the other two rooms were occupied by President Stiers whenever he came to the plant.

Pearce lived in St. Louis and frequently would go home on week ends and sometimes during the week to spend the night. Melvin Martin, who shared Pearce's two rooms at the plant, also lived in St. Louis.

Testimony was given by Grace Pearce, widow, that in June or July, preceding Pearce's death she heard Pearce tell Stiers that Broyles had told him that he (Broyles) was a $ 10 a day man and not a fifty cents an hour man and that he was not getting any repair work to do and that in a subsequent conversation she heard Pearce ask Stiers if Broyles had been in and asked for more money and that Stiers answered, "No," and that he would prefer that Pearce would handle the matter of Broyles' complaint, as he was afraid Broyles would cut the cables or set fire to the plant.

A few days after Broyles had quit the employ of the company he returned and engaged in a fight with Pearce, which was witnessed by other employees and who testified that Broyles, who had a knife, told them to stay there that he was going to make Pearce talk as he (Pearce) had insulted his wife.

Melvin Martin, an employee who saw the fight, testified that Broyles accused of Pearce of trying to break up his home and said, "You fooled around until you got my job. If it hadn't been for you I'd been here yet working," and that then the fight began.

Martin further testified that after the fight Broyles said to him, "You come here, I'm going to give you some of it, too, I'm no St. Louis gangster, I'm here by myself and I'm going to give you some," and that when Tom Broyles, his brother, tried to take him away, he said, "Those St. Louis gangsters are not going to come and run this place."

Pearce reported to Stiers, the president, concerning the...