Phillips v. Air Reduction Sales Co.

• Decision Date: 30 July 1935
• Citation: 85 S.W.2d 551,337 Mo. 587
• Parties: Berenice Phillips v. Air Reduction Sales Company and Globe Indemnity Company, Appellants
• Court: Missouri Supreme Court

85 S.W.2d 551

337 Mo. 587

Berenice Phillips v. Air Reduction Sales Company and Globe Indemnity Company, Appellants

Supreme Court of Missouri

July 30, 1935

Rehearing Overruled July 30, 1935.

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Watson Ess, Groner, Barnett & Whittaker for appellants.

(1)The court erred in finding and holding that there was sufficient competent evidence before the Workmen's Compensation Commission to warrant the making of the award and to support the finding of the commission that the accident which resulted in the death of the employee was one arising out of and in the course of his employment."Out of and in course of employment" defined.Wahlig v. Krenning-Schlapp Grocer Co.,29 S.W.2d 128, 325 Mo. 677;Smith v. Levis-Zukoski Mercantile Co.,14 S.W.2d 470, 223 Mo.App. 743.To be compensable, an accident must arise both "out of" and "in the course of" the employment.Smith v. Levis-Zukoski Mercantile Co.,14 S.W.2d 470, 223 Mo.App. 743;Barlow v. Shawnee Inv. Co.,48 S.W.2d 35.Mere lawful presence of the employee upon the premises of the employer is not sufficient to make an accident compensable.Smith v. Levis-Zukoski Mercantile Co.,14 S.W.2d 470, 223 Mo.App. 743;Stone v. Blackmer & Post Pipe Co.,27 S.W.2d 459, 224 Mo.App. 319;DeMoss v. Evens & Howard Fire Brick Co.,37 S.W.2d 961, 225 Mo.App. 473;State ex rel. v. Haid,62 S.W.2d 869, 333 Mo. 390;Sullivan v. Industrial Comm.,10 P.2d 924.Inferences must be drawn from proven facts, not from conjecture or other inferences.Sexton v. Met. St. Ry. Co.,245 Mo. 254;Felver v. Ry. Co.,216 Mo. 195;Hamilton v. Ry. Co.,250 Mo. 714.A finding and award of the Compensation Commission cannot rest upon surmise, speculation or conjecture.Stapleton v. Gunn,69 S.W.2d 1104;Jackson v. Construction Co.,59 S.W.2d 705;Allison v. Eyermann Construction Co.,43 S.W.2d 1063;Keim v. Blackburn,280 S.W. 1046;Griffith v. Continental Cas. Co.,253 S.W. 1043, 299 Mo. 426;Hamilton v. Ry. Co.,300 S.W. 787, 318 Mo. 123;Robison v. Ry. Co.,64 S.W.2d 660.The accident did not arise out of and in the course of decedent's employment.Smith v. Levis-Zukoski Merc. Co.,14 S.W.2d 470, 223 Mo.App. 743;DeMoss v. Evens & Howard Fire Brick Co.,37 S.W.2d 961, 225 Mo.App. 473;Hebbeler v. St. Louis Pub. Serv. Co.,72 S.W.2d 130;Cassidy v. Eternit,32 S.W.2d 75, 326 Mo. 342;Gamble v. Board of Public Utilities,19 P.2d 729;MacDonald's Case, 277 Mass. 418, 178 N.E. 647;Savoy Hotel Co. v. Industrial Board,279 Ill. 329, 116 N.E. 712;Roebling's Sons Co. v. Industrial Acc. Comm.,171 P. 987.(2)The court erred in finding and holding that there was sufficient competent evidence before the Workmen's Compensation Commission to warrant the making of the award and to support the finding of the commission that the claimant was totally dependent upon the earnings of the deceased employee.The deceased employee was not legally liable for claimant's support and she is therefore not entitled to compensation for his death.Sec. 3319, R. S. 1929;Hill v. Nafziger Baking Co.,57 S.W.2d 773, 227 Mo.App. 846;Glaze v. Hart,36 S.W.2d 684, 225 Mo.App. 1205;Isaascon v. Central Coal & Coke Co.,44 S.W.2d 232, 226 Mo.App. 644;Elihinger v. Wolf House Furnishing Co.,72 S.W.2d 144.The claimant was not actually dependent upon the deceased employee for her support at the time of his death, and is therefore not entitled to compensation for his death.Kennedy v. Keller,37 S.W.2d 452, 225 Mo.App. 561;Travelers' Assn. v. Tennent,128 Mo.App. 541;Utah Fuel Co. v. Industrial Comm.,15 P.2d 297;Gherardi v. Connecticut Co.,103 A. 668, 92 Conn. 454;Shaw Co. v. Palmatory,105 A. 417, 7 Boyce, 197.(3)The court erred in failing to consider the application and evidence introduced and submitted by the employer and insurer on the issue of fraud in the procurement of the award and in failing to make a finding on that issue.Sec. 3342, R. S. 1929;Schmelzle v. Ste. Genevieve Lime & Quarry Co.,37 S.W.2d 482;State ex rel. v. Haid,38 S.W.2d 44, 327 Mo. 567;Waring v. Met. Life Ins. Co.,39 S.W.2d 418, 225 Mo.App. 600;Hammack v. West Plains Lumber Co.,30 S.W.2d 650, 224 Mo.App. 570;Wadley v. Employers' Liability Assur. Corp., 37 S.W.2d 665, 225 Mo.App. 631.

Stubbs, McKenzie & Stubbs and Cramer & Haase for respondent.

(1)Samuel Missey, employee, was general superintendent of the operating department of employer's plant and was killed by an accident which arose out of and in the course of his employment.Wahlig v. Krenning-Schlapp Gro. Co.,29 S.W.2d 128, 325 Mo. 677;Barlow v. Shawnee Investment Co.,48 S.W.2d 35, 226 Mo.App. 1247;Smith v. Levis-Zuloski Mer. Co.,14 S.W.2d 470, 223 Mo.App. 743.(2)Berenice Phillips, claimant, was a sister of Samuel Missey and a total dependent of Missey on August 6, 1933, the date of his death.Sec. 3319(d), R. S. 1929;Elihinger v. Wolf House Furnishing Co.,72 S.W.2d 144;Schmelzle v. Ste. Genevieve L. & Q. Co.,37 S.W.2d 482;Sweeny v. Sweeny Tire Stores Co.,49 S.W.2d 208, 227 Mo.App. 93;Rasor v. Marshall Hall,224 Mo.App. 253, 25 S.W.2d 507;Shaffer v. Williams Bros.,44 S.W.2d 185, 226 Mo.App. 635.(3) There was sufficient competent evidence to support the findings and award of the Compensation Commission.Authorities under Points 1 and 2;Crutcher v. Curtiss-Robertson Airplane Co.,52 S.W.2d 1019, 331 Mo. 169;Schaefer v. Lowell-Krekeller G. Co.,49 S.W.2d 210;Travelers Ins. Co. v. Davis,42 S.W.2d 946;Seifert v. Heil Packing Co.,52 S.W.2d 582;Glaze v. Hart,36 S.W.2d 688, 225 Mo.App. 357.(4) In Workmen's Compensation cases on appeal, the appellate court shall review only questions of law, and no additional evidence shall be heard.Sec. 3342, R. S. 1929.(5) There was no fraud in the procurement of the award of the Compensation Commission.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an appeal from the judgment of the Circuit Court of Jackson County affirming an award of the Workmen's Compensation Commission, in favor of respondent as the total dependent of Sam Missey who was killed in the plant of the Air Reduction Sales Company in Kansas City on August 6, 1933.Respondent was awarded the sum of $ 20 per week for three hundred and eighty-three and seven-tenths weeks and $ 150 for burial expenses.

The Air Reduction Sales Company was engaged in the manufacture of oxygen, with plants in both St. Louis and Kansas City.Missey was employed in the St. Louis plant until 1931 when he was transferred to Kansas City.He was the superintendent in charge of the company's Kansas City plant.He had authority to hire men and supervise their work.His superior officer was the district superintendent.He would give instructions to Missey, but the men who worked in the plant and operated the machinery never got orders from anyone except Missey.The plant was kept in continuous operation.The men, who operated the machinery, worked in three shifts of eight hours each; from midnight to eight A. M., from eight A. M. to four P. M., and from four P. M. to midnight.One man was in charge as operator on each shift.During 1933, Missey operated the machinery himself on the shift from eight A. M. to four P. M. on Mondays, Tuesdays, Wednesdays and Thursdays.One of the regular operators had been injured in February and, from that time until Missey was killed, Miller, who was employed as tester of cylinders, worked as a relief operator on the eight A. M. to four P. M. shift on Saturdays and Sundays.The other regular operators were Hetrick and Rockey.Missey had reports to make on Saturday and usually worked on his reports on that day.He was supposed to have Sunday off, but was subject to call at any time.He had instructed the operators that if they"had a breakdown or got into trouble and needed help to call him."He came to the plant at any time he saw fit to do so and frequently did come there in the evening.Sometimes he would not come at night all week and sometimes "he would come three or four times in a week" and was "liable to be doing anything."When he came at nights, Missey would discuss what was going on, would make suggestions to the operator about his duties, and he also at times worked on his reports.Repairs on all machinery were under his supervision and most of the time he would make them himself.

The plant consisted of three rooms.In the southeast corner was an office, which Missey used to make out his reports; next to it in the southwest corner was a room, which contained machinery called the testing apparatus.North of these two rooms, there was a large room, which contained the machinery for the manufacture of oxygen.In the north part of this large room, there was an air compressor with a large flywheel about eight feet in diameter; and along the south side of the room was what was called the filling line where cylinders were filled with oxygen.It was shown that the bearing on the flywheel leaked oil, so that oil would get on the journal or crank shaft.If this oil was not wiped off, it would drop onto the belt of the flywheel and cause it to slip.Missey gave orders to all of the operators to "take a rag and wipe off that crank shaft" about every hour, and "always done it on his shift."Operator Rockey said that although he had been instructed to wipe off this oil, he never did it because he thought it was dangerous, and "didn't want to take the chance of going around there."Operator Hetrick said that he did wipe it off like he had been ordered to do.Relief operator Miller said that he wiped the oil off several times after Missey told him to do so, but that he figured it was too dangerous and discontinued it.He said he told Missey that he would not do it and that Missey agreed that he could let it...