Reed v. Sensenbaugh

• Decision Date: 07 October 1935
• Docket Number: No. 5496.,5496.
• Citation: 86 S.W.2d 388
• Parties: MARY REED ET AL., RESPONDENTS, v. ARTHUR L. SENSENBAUGH ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

86 S.W.2d 388

MARY REED ET AL., RESPONDENTS, v. ARTHUR L. SENSENBAUGH ET AL., APPELLANTS.

No. 5496.

Springfield Court of Appeals. Missouri.

October 7, 1935.

Appeal from Circuit Court of Scott County. — Hon. Frank Kelly, Judge.

AFFIRMED.

Finch & Finch for respondents.

The findings of fact by the Workmen's Compensation Commission are conclusive. Bowen v. Hall-Baker Grain Co., 67 S.W. (2d) 536; Thoms v. Kaysing Iron Works, 54 S.W. (2d) 763; Crutcher v. Curtiss-Robertson Airplane Mgf. Co., 52 S.W. (2d) 1019; Hoffman v. Missouri Pacific, 63 S.W. (2d) 426. The death of Reed is compensable because the accident arose out of his employment, the test being whether there is a causal connection between the injury and the employment itself, or the conditions under which it is to be performed. Metting v. Lehr Construction Co., 32 S.W. (2d) 121; Wahlig v. Krenning-Schlapp Grocer Co., 29 S.W. (2d) 128; Brooks v. Greenberg, 67 S.W. (2d) 823; Calvetti v. Gasbarri (Wis.), 230 N.W. 130; General Accident, Fire & Life Assurance Corp. v. Industrial Accident Commission, 200 Pac. 419, 186 Cal. 653; State ex rel. Anseth v. District Court, 158 N.W. 713, 134 Minn. 16; Stevens v. Industrial Accident Commission, 178 Pac. 296, 179 Cal. 592; Wright Motor Company v. Steinhilber (Va.), 162 S.E. 192. The fact that others, if present, are also subject to injury does not prevent recovery, where the injury results from some hazard to which the employee must be subjected by reason of his employment, the risk being a condition of the employment resulting in injury to the employee. Sawtell v. Stern Brothers & Co., 14 S.W. (2d) 264; Brauch v. Skinner Brothers Mfg. Co., 51 S.W. (2d) 727; Howes v. Stark Brothers Nurseries & Orchards Co., 22 S.W. (2d) 839; Fischer v. Stevens College of Columbia, 47 S.W. (2d) 1101; Sylcox v. National Lead Co., 38 S.W. (2d) 497; Kunze v. Detroit Shade Co., 158 N.W. 851, 192 Mich. 435.

Blanton & Montgomery for appellants.

Where facts are undisputed, whether accident arose out of and in the course of his employment presents a question of law. Gillmore v. Ring Co., 61 S.W. (2d) 764; Russell v. Dry Goods Co. (Mo.), 60 S.W. (2d) 44; Sawtell v. Stern Brothers, 44 S.W. (2d) 264; Seifert v. Heil Packing Co., 52 S.W. (2d) 579, Pars. 3, 4; Hassell v. Reineke Lumber Co., 54 S.W. (2d) 758, Par. 1; Demoss v. Brick Co., 57 S.W. (2d) 720, Par. 4; Thurman v. Coal Co., 49 S.W. (2d) 288; Morrison v. Terminal Co., 57 S.W. (2d) 775. If evidence not legally sufficient to support award, court must reverse or remand award. Thurman v. Fleming Co., 49 S.W. (2d) l.c. 291, Pars. 3, 4; Metting v. Lehr Const. Co., 32 S.W. (2d) l.c. 123, Pars. 1, 2. Before an employee can recover for an accident, his injuries must not only have been suffered in the course of his employment, but must also arise out of his employment. Stone v. Blackmer Co., 27 S.W. (2d) 459; Metting v. Lehr Co., 32 S.W. (2d) 121; Wahlig v. Krenning Co., 29 S.W. (2d) 128; Barklow v. Shawnee Co., 48 S.W. (2d) 35. A mere showing that the employee was injured by accident occurring on the premises of his employer at or near the regular place of service and during working hours, does not serve to establish liability under the act. Stone v. Blackmer Co., 27 S.W. (2d) l.c. 460, Par. 3, 224 Mo. App. 319; Smith v. Levis-Zukoski Co., 223 Mo. App. 743, 750, 751, 14 S.W. (2d) l.c. 473. Where injury or death is the result of a hazard unconnected with the prosecution of the work in hand, or where it is the result of risks to which all persons similarly situated are equally exposed, whether in employment or not, and not traceable in some special degree to the particular employment, it does not arise out of the employment. Stone v. Blackmer & Post, 27 S.W. (2d) l.c. 460, Par. 406, 224 Mo. App. 319; Kizer on Workmen's Compensation, Par. 67d, page 77, note 97; Conaway v. Marine Oil Co., 110 So. 181, 162 La. 147.

BAILEY, J.

This proceeding originated before the Missouri Workmen's Compensation Commission on a claim for compensation. The claim filed substantially alleged that Mary Reed, as the widow, and Dorothy Reed, Dewel Reed and Darwin Reed, as the minor children, of one Connie Reed, were entitled to compensation against appellants Arthur L. Sensenbaugh and N.M. Sensenbaugh, doing business as "Sensenbaugh Brothers," because of the death of said Connie Reed while employed by them, which death is alleged to have arisen out of and in the course of his employment. This appeal is from the judgment of the Scott County Circuit Court, affirming a final award of the Workmen's Compensation Commission in favor of claimants and against Sensenbaugh Brothers, who were not insured, in the lump sum of $2,665.67.

At the hearing before the commission, held February 28, 1933, it was stipulated and agreed that Connie Reed was an employee of Sensenbaugh Brothers; that both parties were under the Missouri Compensation Law; that on December 13, 1932, the employee died as a result of injuries received in an accident, but it was denied that such accident arose out of and in the course of his employment. The referee before whom the original hearing was held found that the accident did arise out of and in the course of the employment; that the employee was a garage mechanic and came to his death by reason of a gun shot wound, and an award was made based upon an agreement as to the weekly wage, medical aid, etc.

The facts upon which the claim for compensation is based are substantially as follows: Connie Reed was a night mechanic employed by defendants. He was shot about two A.M. on December 13, 1932, while engaged in his employment at defendant's garage in Sikeston, Missouri, by one Louis Hunter. Reed was removed to a hospital and died about noon of the same day. The testimony further shows that Sikeston was headquarters for Troop E of the Missouri State Highway Patrol, in charge of Sergeant Rufus Reed; that on the night of the tragedy highway patrolman Turnball called Sergeant Reed by telephone from Fredericktown, advising him that a man, who afterward was learned to be Hunter, accompanied by a woman, had had an automobile accident near Fredericktown while travelling south over Highway 61, and that he had disobeyed instructions to report at Fredericktown for medical treatment, but had driven rapidly south in the direction of Sikeston, and requested that the driver of the car be intercepted for questioning. Reed thereupon called trooper Hubert Brooks, who happened to be at defendants' garage at the time, and ordered him to intercept Hunter and investigate him and his car. At defendants garage there also happened to be one Gid Daniels, the night marshal at Sikeston. These two officers, in obedience to the order, repaired to the intersection of Highways 60 and 61, a short distance east of Sikeston, where they awaited Hunter. Shortly thereafter he arrived and stopped at a filling station at or near the intersection. He was accosted by the officers and, their suspicions being aroused, they ordered him to drive his car to defendants' garage, the officers following in their own car.

G.A. Daniels, the police officer of the City of Sikeston, who had accompanied Brooks, the highway patrolman, as aforesaid, testified in regard to what occurred after they arrived at the garage, as follows:

"When we got to the Sensenbaugh Garage the door was closed, but someone opened it, I cannot say for sure who did it, whether it was Reed (the deceased) or Camden, and the other car drove inside. I don't remember whether a horn was sounded or not before they drove in. When I got inside of the garage I saw Mr. Brooks and Mr. Reed and the two parties in the other car; that is where Mr. Reed was employed.

"When I got in Reed went to get something. I think it was a storage ticket, but I won't say for sure. The office is on the east side of the building. The garage faces the northwest and, as you drive in the office, where the storage ticket would be is on the left. There is a stove and telephone booth on the right. The other car was driven to the left of the stove and telephone booth about even with the stove. In getting the storage ticket Reed would go from the stove and telephone booth over across to the other side of the room. When I last saw Reed he was standing back next to Brooks over at my left.

"There was no conversation that I heard between Reed and the rest of us. The man that was in the car had gotten out when I entered the garage and was walking over toward the stove and when I got over even with the stove he said `stick 'em up' and got a gun and went to shooting, and of course I throwed myself sideways to him and threw my arms over my face. Of course, he shot me down there.

"The next time I saw Reed he was going out the door a few minutes later. He had his hands up over his head and said, `Mister, please don't shoot me any more,' and I saw him going out the door. That was after the shooting was over. I do not know what became of Brooks. He went out of the garage and did not come back until after the shooting was over. The man that drove the car there went out the back of the garage. He left after Brooks left. The woman remained in the car... .

"There was no other employee in the garage when I went in that night except Reed, at least if there was anybody else, I did not see him. This garage is open all night for either mechanical service or storage.

"`Q. Is it or is it not a custom for the officers and you and other officers here where they make arrests with motor vehicles to drive to Sensenbaughs' and store cars and * * * "`(Objected to.) "`A. Well, I have taken lots of cars there and stored them.'

"Yes, sir, it is a custom. Every car I have recovered I have taken there for storage. Brown Jewell, the constable, also taken them there. I do not know about the highway patrolmen but when cars are taken there they usually give you a storage ticket to identify the car, on which is placed the license number of the car. The ticket...