Probst v. St. Louis Basket & Box Co.

• Decision Date: 03 May 1932
• Docket Number: No. 21960.,21960.
• Citation: 52 S.W.2d 501
• Parties: PROBST v. ST. LOUIS BASKET & BOX CO. et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

52 S.W.2d 501

PROBST v. ST. LOUIS BASKET & BOX CO. et al.^*

No. 21960.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Rehearing Denied September 13, 1932.

Appeal from St. Louis Circuit Court; Harry A. Rosskopf, Judge.

"Not to be officially published."

Proceeding under the Workmen's Compensation Act by Anna Probst, attorney in fact for Anna Schrammel, for the death of Frank Schrammel, the latter's husband, claimant, opposed by the St. Louis Basket & Box Company, employer, and the Southern Surety Company, insurer. From the judgment reversing the Compensation Commission's award denying compensation, defendants appeal.

Reversed and remanded, with directions.

Jones, Hocker, Sullivan & Gladney and Willard A. McCaleb, all of St. Louis, for appellants.

S. F. Pinter and Mason, Goodman & Flynn, all of St. Louis, for respondent.

BECKER, J.

This is a proceeding under the Missouri Workmen's Compensation Act (Rev. St. 1929, §§ 3299-3376 [Mo. St. Ann. §§ 3299-3376] against the St. Louis Basket & Box Company, employer, and the Southern Surety Company, insurer, for the death of Frank Schrammel, an employee of the basket company, whose death it is alleged resulted from an accident arising out of and in the course of his employment.

The commissioner who originally heard the claim denied compensation on the ground that "the claimant failed to prove that the accident causing employee's death arose out of and in the course of his employment."

Upon review by the full commission, a finding was made that "at the time of the accident the belt to which claimant alleges the deceased was to help hold on the machine was securely held on by guards, and there was no occasion for anybody to go upon the machine and hold said belt, and the employee did not go on said machine for any purpose connected with or related to his employment. Therefore said accident did not arise out of his employment," and the commission denied compensation.

On appeal the circuit court reversed the award of the commission and remanded the cause, and in due course defendants below bring this appeal.

The sole question before us on this appeal is whether or not there is sufficient competent evidence in the record to sustain the finding of the commission that Schrammel did not die as the result of an accident arising out of his employment.

It is conceded that the commission's finding that Schrammel did not die as the result of an accident arising out of his employment is a finding of fact and not a conclusion of law; a finding in the nature of a special verdict, and conclusive upon appeal, if supported by sufficient competent evidence. Leilich v. Motor Co. (Mo. Sup.) 40 S.W.(2d) 601; Rolens v. Const. Co. (Mo. App.) 24 S.W. (2d) 1077; Kinder v. Hannibal Car Wheel & Foundry Co. (Mo. App.) 18 S.W.(2d) 91.

In determining whether the commission's award was justified by the evidence, on appeal the court considers only evidence most favorable in support of such award, together with all reasonable inferences which may be drawn therefrom to support the conclusion of the commission, and disregards any unfavorable testimony where it is contradicted by evidence supporting the conclusion of the commission. Jones v. Century Coal Co. (Mo. App.) 46 S.W.(2d) 196; Schulte v. Tea & Coffee Co. (Mo. App.) 43 S.W.(2d) 832.

Examining the record in the light of what we have said above brings us to the conclusion that there is sufficient competent evidence in the record to support the finding of the commission that Schrammel did not die as the result of an accident arising out of his employment.

There is testimony which, if believed, tends to prove that the deceased, on the night in question, was in the employ of the defendant box company, and that it was his duty to remove material from a drying machine located on the employer's premises. The drying machine was in excess of one hundred feet long and about eight and one-half feet in height. On the top of the dryer there were certain pulleys connected by belts which were run by motor, which operated the drying machine. Veneer was placed in the dryer at one end by a colaborer of Schrammel and taken out of the machine at the other end by Schrammel and placed upon a truck. When that truck was loaded, it was Schrammel's duty to remove the truck and bring another truck up in place to be loaded.

There is testimony further to support a finding that no duty of Schrammel's employment required him to get on top of the dryer, and that prior to the night in question he had never been known to get on top of any of the dryers, and that on the night in question no one ordered or requested him to get on top of the dryer. There is testimony also which, if believed, tends to prove that, some weeks prior to the night of the alleged accident to Schrammel, wooden uprights had been placed on top of the particular dryer at which Schrammel was working, in juxtaposition to a belt which was stretched across two pulleys; that these uprights had been erected to prevent the belt from slipping off the pulleys when the motor, which ran the dryer, was started; that it had been necessary, before those uprights had been erected, for some one to hold this belt in place when the motor was started, but that, after the erection of the uprights, the belt would no longer slip off, and no one was therefore required to hold the belt. Further, that John Bante, the night foreman in charge of the plant, on that night, prior to starting the motor of the dryer, said to a laborer named McKnight:

"Go on top of the dryer and look at the belt."

"Q. Was it necessary for anybody to go up there and hold that belt to keep it from coming off the pulley? A. No, sir, it was not necessary."

"Q. Did you tell McKnight on this evening to hold the belt? A. No, sir, I didn't tell him to hold the belt. I told him just to look around."

"Q. For what purpose? A. Because I could not see from below how the belts run. Then I called up to McKnight, `everything all right?' `Yes.'"

"Q. Did you at any time see Schrammel on top of the dryer that evening? A. No, sir."

"Q. Did you ever send Schrammel on top? A. No."

"Q. Did you tell him on this evening to get on top? A. No."

"Q. Was it his duty to go on top and look at the belt? A. No, he had nothing to do with that."

"Q. What was the first you knew of Schrammel getting hurt? A. I had gone...