Raef v. Stock-Hartis, Inc.

• Decision Date: 03 April 1967
• Docket Number: STOCK-HARTI,No. 24418,INC,24418
• Citation: 416 S.W.2d 201
• Parties: William R. RAEF (Employee), Respondent, v.(Employer) and Liberty Mutual Insurance Co. (Insurer), Appellants.
• Court: Missouri Court of Appeals

Page 201

416 S.W.2d 201

William R. RAEF (Employee), Respondent, v.STOCK-HARTIS, INC. (Employer) and Liberty Mutual Insurance Co. (Insurer), Appellants.

No. 24418.

Kansas City Court of Appeals, Missouri.

April 3, 1967.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 5, 1967.

A. Warren Francis, Lloyd A. Hamrick, Roger J. Stabb, Kansas City, for appellants.

Bellemere & Bellemere, Kansas City, for respondent

J. P. MORGAN, Special Judge.

In this workmen's compensation case, the appeal raises two questions.First, was there an 'accident' as that term is defined by the statute; and secondly, was respondent a statutory employee of appellants.

Claimant originally filed his claim for compensation again the Alex Bascom Company, employer, and its insurer, The American Motorist Insurance Company, and Robert J. Vanderpool, uninsured employer.Thereafter, an amended claim brought in Stock-Hartis, Inc., as an additional employer and Liberty Mutual Insurance Company as its insurer.

After an extended hearing before the referee, an award was made in favor of claimant.He found that claimant had sustained a compensable injury resulting from an accident on June 10, 1963, and allowed 15% permanent partial disability of the body as a whole, temporary total disability and reimbursement of medical expense in the amount of $661.59 for a total of $4,161.59.The referee further found that claimant was an employee of Vanderpool, who was an uninsured minor employer; that Vanderpool was a sub-contractor of Stock-Hartis; that claimant was a statutory employee of Stock-Hartis as defined in Section 287.040 R.S.Mo. 1959, V.A.M.S., and as a statutory employer, Stock-Hartis and its insurer, appellants, were liable for the payments due under the award.

On review the Industrial Commission, Commissioner Cates dissenting, entered its final award denying compensation with the following finding:

'We find from all the evidence that the employee, William R. Raef, did not sustain an accident arising out of and in the course of his employment as alleged.Compensation, therefore, must be and is hereby denied.'

On claimant's appeal, the circuit court reversed the commission by reason of its finding that 'there is not sufficient competent evidence in the record to warrant said Industrial Commission in making said award denying compensation' and remanded the cause to the commission for further proceedings not inconsistent with that judgment.

The general relationship of the numerous parties was established with little variance, but divergent opinions arose as to the legal significance and obligations of each resulting from their status as established by the evidence.Claimant, Raef, was forty-seven years of age and had always been a carpenter.He had been so engaged for approximately two or three weeks doing 'trim work' as an employee of Vanderpool prior to the alleged accident.Vanderpool for a period longer than a year had an oral contract to do the trim work required by Bascom in his apartment house construction projects, and he generally furnished five carpenters in addition to himself.Vanderpool submitted to Bascom each week a statement for labor, and from the funds received he individually paid the carpenters, including claimant, hired by him.The arrangement was further complicated by testimony that Vanderpool's bids on the different projects were a percentage cheaper than others in consideration for Bascom carrying the insurance on Vanderpool and reimbursing him each year the sum of $450.00 for social security payments.Although not clearly established, there was some testimony that Vanderpool had accepted suggestions of Bascom as to whom he should hire, but this was not true as to claimant.Stock-Hartis was engaged in the sale of building specialty materials consisting of kitchen cabinets, built-in appliances and builders' hardware to contractors, and had contracted with Bascom to deliver and install all kitchen cabinets required on this project.Stock-Hartis then entered into an agreement with Vanderpool for him to install the cabinets for $22.00.It is significant that no one contends that Vanderpool's arrangements with Bascom prevented this further agreement with Stock-Hartis.The incident in question was alleged to have occurred while claimant was working for Vanderpool in carrying out this contract with Stock-Hartis.

Considering the evidence in the light most favorable to the award of the commission, the ultimate question is whether or not the circuit court was correct in finding that it was not supported by competent and substantial evidence.The claimant had the burden of proof to bring himself within the coverage of the Workmen's Compensation Act.This court can not substitute its judgment for that of the commission.Merriman v. Ben Gutman Truck Service, Inc., Mo., 392 S.W.2d 292 (297).The award, although meeting the requirements of a general finding Leilich v. Chevrolet Motor Company, 328 Mo. 112, 40 S.W.2d 601, falls short of that recommended by our Supreme Court in Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136 at 142, wherein it was stated: 'Findings of fact are required by Secs. 287.460and287.480; and one of the question on appeal, as provided by Sec. 287.490, is whether the facts found by the Commission support the award.Thus we think these statutory provisions contemplate an unequivocal affirmative finding as to what the facts are.'Particularly should this be true in those instances, such as this case, where a decision by the referee is reversed by a divided commission without revealing if such action resulted from its finding the facts otherwise, or that the conclusion reached was improper in view of the facts found.However, review is possible from the record as made.

The direct examination of claimant touching on the manner in which his alleged injury occurred is as follows:

'A.Well, I started to set that cabinet.I picked it up and put it in place, and I reached around for the hammer, when I reached for the hammer the cabinet started to slip, and I gave it a shove to put it back up with my left hand, and when I did something popped in my back.

'Q.Then what, if anything, did you do?

'A.Well, I hit the floor and the cabinet hit the floor, and I laid there a little bit, and finally I crawled over to some treatles I had sitting with underlay on them, and I crawled up on the underlay and I laid there awhile.'

Cross-examination emphasized the following:

'Q.And you pushed it back up into place, and it was when you pushed it back up that you had pain in your back?

'A.That is right.When I pushed it back up that my back popped.

'Q.Then the first time you had pain in your back was when you pushed it back up into position?

'A.That is right.'

The employer argues, 'The cabinet 'slipping' did not constitute an accident in this case because it did not produce at the time objective symptoms of an injury.The evidence is clear that the injury (pain in back) was caused when the claimant pushed the cabinet back into position,' and in the absence of evidence in the record as to the weight of the cabinet, the claim can not be bottomed on 'abnormal strain' to bring it within the doctrine set out in Crow v. Missouri Implement & Tractor Co., Mo., 307 S.W.2d 401.This contention is ill-founded, because it has been held that where events followed in rapid succession, and formed one continuous chain uninterrupted by an intervening cause, and terminated in the employee's injury, they logically could not be separated.Jones v. Purity Textiles Corp., Mo.App., 328 S.W.2d 714;Brotherton v. International Shoe Company, Mo.App., 360 S.W.2d 108.Whether or not an accident occurred must be determined from the events reflected in that period of time between the cabinet first slipping and that moment when it and the employee both came to rest on the floor.The controlling statutory definition of 'accident' as set out in Section 287.020(2) is: 'The word 'accident' * * * shall * * * be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.'The slipping of the cabinet would surely be an 'unexpected event happening suddenly', as it was not of a preconceived design nor a planned incident of cabinet installation.'Violently' is a relative term having a connotation sufficiently broad to cover causes found in that vast area between the most minor compensable injury and accidental death, and is properly descriptive of any cause efficient in producing a harmful result.Claimant testified that his back hurt the rest of the day and that he consulted a doctor that evening as well as reporting the injury to his immediate employer, Vanderpool.No conflicting or contradictory evidence was offered as to these events, and claimant made a prima facie case within the statutory definition of 'accident' in its usual sense, and no opinion is required as to whether or not such facts would sustain a claim based on the theory of 'abnormal strain.'

Some four days later and prior to claimant's subsequent confinement in a hospital for treatment of his back, a disturbance on the project involved a conflict between the painters and carpenters.It apparently was dominated by claimant's son of some three-hundred pounds.A painter, who had been thrown through a louvered door and down a flight of steps during this altercation, appeared as a witness.He said claimant had been shoved against a pile of sheet-rock and several days later had stated he hurt his back in the fight.A portion of his testimony is as follows:

'Q.I will ask if Mr. Bill Raef ever struck you?

'A.Well, I imagine he did.

'Q.Don't imagine.I want to know whether or not--you are under oath, I want to know whether or not he struck you?

'A.Well, I just couldn't say.'

'Q.What did he say was hurting him?

'A.He said his back was hurt in the fight.

'Q.Did ...