Ries v. De Bord Plumbing Co.

• Decision Date: 20 March 1945
• Docket Number: No. 26790.,26790.
• Citation: 186 S.W.2d 488
• Parties: RIES v. DE BORD PLUMBING CO. et al.
• Court: Missouri Court of Appeals

186 S.W.2d 488

RIES v. DE BORD PLUMBING CO. et al.

No. 26790.

St. Louis Court of Appeals. Missouri.

March 20, 1945.

Rehearing Denied April 17, 1945.

Appeal from St. Louis Circuit Court; Eugene J. Sartorius, Judge.

"Not to be reported in State Reports."

Proceedings under the Workmen's Compensation Act, Mo.R.S.A. § 3689 et seq., by Joseph A. Ries, employee, opposed by the De Bord Plumbing Company, employer and the Employers' Mutual Casualty Company, insurer. From a judgment affirming an award for the employee, the employer and insurer appeal.

Reversed.

Luke & Cunliff and Hugh S. Wilson, all of St. Louis, for appellants.

Joseph M. Walsh, of St. Louis, for respondent.

ANDERSON, Judge.

This is a proceeding under the Missouri Workmen's Compensation Act.

The claim was filed by Joseph A. Ries, an employee of DeBord Plumbing Company. In his claim he alleged that he "was walking through hallway leading to driveway on East side of Delmonte Apts. building, carrying plumbing tools to automobile, when an unknown man walking behind me, kicked me in the back, shoved me through door on to a driveway, causing me to fall on my left side."

The employer and insurer, in their answer, denied that the employee sustained an accident arising out of and in the course of his employment.

The case was tried before a referee, who found in claimant's favor. On application, there was a review by the Full Commission, which Commission also found for claimant. Their finding was affirmed by the Circuit Court. From the judgment of the Circuit Court, the employer and insurer were granted an appeal to this Court.

In this Court, the appellants complain that the Circuit Court erred in affirming the award because there was not sufficient competent evidence in the record to warrant the making of the award; and they further complain that the finding and ruling of the Commission was erroneous as a matter of law.

At the hearing before the Commission, the only witness to the alleged accident was the claimant himself. The facts developed by his testimony briefly are as follows:

The DeBord Plumbing Company had contracted to install bathroom fixtures in an apartment building known as the Delmonte Apartment. The employee was a journeyman plumber, a member of the local union, and had been hired through the Union for this particular job. On the day in question he was the only employee of the DeBord Plumbing Company on the job. He had worked there for approximately three weeks prior to the date of the accident. On August 6, 1943, he started work at 8:00 A. M., and worked until about 4:25 P. M. He then proceeded to carry his tools out of the building to put them into his automobile.

The testimony as to what happened when claimant was injured appears in the record as follows:

"* * * as I was passing through the hall-way that led out into a driveway, some young man was there and the Manager of the Apartment said to him: `Are you looking for somebody?' and he never answered. `Oh,' she says, `you are a plumber.' Well, I never answered or said yes or no. I never saw the fellow before and I passed by him and as I got by him he gave me a shove and he kicked me out into a driveway. * * As to when I first saw my assailant, he started down into the cellarway and that is the first time I saw him. He started down in a cellarway about like that (indicating), and I was coming off of a hallway about like this (indicating), and he gave me a shove and kicked me out in the driveway. I was kicked and shoved through the doorway and landed out in the driveway."

Prior to this incident, claimant had received no threats or warnings of any kind. There had been no Union or labor trouble. The claimant did not know the person who assaulted him, had never seen him before, and did not speak to him; and the assailant did not speak to claimant.

In support of their assignments of error, appellants contend that there is not sufficient competent evidence in the record to show that the employee's injury was the result of an accident which "arose out of" his employment.

As a general rule, an injury arises out of the employment when there exists between the injury and such employment a causal connection of greater or less tenacity; in other words, when the employment is in some way responsible for the injury. It is on this principle of industrial responsibility that the compensation acts find their theoretical and constitutional basis. Smith v. Levis-Zukowski Mercantile Co., 223 Mo.App. 743, 14 S.W.2d 470; Stone v. Blackmer & Post Pipe Co., 224 Mo.App. 319, 27 S.W.2d 459; Huskey v. Kane Chevrolet Co., Mo.App., 173 S.W.2d 637; Sweeny v. Sweeny Tire Stores Co., 227 Mo.App. 93, 49 S.W.2d 205; Miller v. Ralston Purina Co., 341 Mo. 811, 109 S.W. 2d 866; Keithley v. Stone & Webster Engineering Corporation, 226 Mo.App. 1122, 49 S.W.2d 296. Whether or not such causal connection exists in a particular case is not always easy of ascertainment, for the term "employment," as that term is understood in connection with the determination of the question, is a complex and variable collection of substances, activities, conditions, and obligations, any one of which might operate as a causative factor in producing the hazard from which the injury arises. The problem is further complicated by the fact that any given accident may appear to have several contributing causes, some of which may not spring from anything connected with the employment, making it necessary to determine whether such cause is in reality a mere contributing cause, or is in fact an intervening agency and sole cause. In view of the complexity of the problem, it is impossible to formulate a general rule to cover all cases. The best that can be done is to decide each case on its own facts, according to whatever determinative tests reason and logic suggest, bearing in mind the broad general principle that there must be a relation between the employment and the force or energy producing the injury, and the further principle that the law should be liberally construed with a view to the public welfare.

In passing upon this case, it is necessary to bear in mind the fundamental difference between those causative agencies which are part and parcel of the master's business and under his control, and those which lie outside that business and beyond his control. In the former class of cases, it is quite reasonable to hold the master liable, no matter how unusual or unpreventable the accident may be. But, in the latter class of cases it seems unjust to hold the employer liable, unless the employment in some way exposes the employee to an unusual risk or injury from such agency which is not shared by the general public. In the case...