Scherr v. Siding & Roofing Sales Co.
| Decision Date | 03 September 1957 |
| Docket Number | No. 29785,29785 |
| Citation | 305 S.W.2d 62 |
| Court | Missouri Court of Appeals |
| Parties | George P. SCHERR (Employee), Respondent, v. SIDING & ROOFING SALES COMPANY (Employer), and Aetna Casualty & Surety Company (Insurer), Appellants. |
Luke, Cunliff & Wilson, St. Louis, for appellants.
Godfrey P. Padberg, John J. Bantle, St. Louis, for respondent.
WOLFE, Commissioner.
This is a claim for compensation, under the Missouri Workmen's Compensation Law, brought by George P. Scherr for injuries received. Upon a hearing before a referee of the Division of Workmen's Compensation of the Department of Labor and Industrial Relations there was a finding that the accident causing the injury for which compensation was sought did not arise out of and in the course of claimant's employment, and compensation was denied. There was an application for review by the full commission. The commission found that the accident 'did not arise out of his employment and was not incidental to his employment', and denied claimant compensation. There was an appeal to the circuit court and there the court set aside the award of the commission and remanded the case with directions to reverse its award and to determine the amount of compensation to which the claimant was entitled. From the judgment of the circuit court the employer and insurer have appealed.
The respondent, employee, filed a motion to transfer this appeal to the Supreme Court on the ground that more than $7,500 is involved. It is true that if he prevailed he might under certain contingencies receive in excess of that amount, but the jurisdiction of the Supreme Court attaches only when the amount involved in the controversy, independent of all contingencies, exceeds $7,500, exclusive of costs, and the motion therefore should be overruled. Hardt v. City Ice & Fuel Co., 340 Mo. 721, 102 S.W.2d 592; Crow v. Missouri Implement Tractor Co., Mo., 292 S.W.2d 573.
The facts as they relate to the cause of the injury are not in dispute. Scherr worked as a salesman for the Siding & Roofing Sales Company. One of the items which they sold was flooring. On occasions Scherr took samples of the flooring and called on customers but most of his work was done at his employer's place of business.
On May 7, 1955, which was a Saturday, Scherr called at a tavern located on South Broadway in the City of St. Louis. It was known as Mary and Art's tavern. He said that he arrived there at about 3:00 p. m. and measured the floor. This took him about 30 or 45 minutes. After that he went to the bar. Mary Heitz, one of the owners of the bar, served him with a bottle of beer while he laid out his floor samples on the bar top and discussed color combinations with her. He said that it was about 4:00 o'clock when he was talking to Mary Heitz and he remembered nothing after that until he awoke in a hospital the following morning. He had been knocked unconscious by a severe blow on the head. He had been struck by a heavy metal disk about 3 inches in diameter. This disk was used in a table game to knock down bowling pins. The disk had been thrown by a man named either Clark or Kendall. Clark and Kendall had started to fight and were throwing various missiles, such as ash trays an salt shakers, at each other. Scherr, the claimant, did not know either one of them and apparently the disk was not thrown at him but missed its intended victim and struck Scherr inflicting a serious injury. He suffered a depressed fracture of the skull and fell to the floor unconscious. The proprietress of the tavern summoned the aid of a neighborhood doctor, who said that Scherr should be taken to a hospital at once. Two patrons of the tavern then took Scherr in their car to a hospital where he remained for three weeks. Scherr did not know either Clark or Kendall, who engaged in the fight, ahd had never seen them either before or after his injury.
The place of the occurrence was a neighborhood tavern that sold only beer and soft drinks. Scherr had purchased there a set of earrings and a necklace as a Mother's Day gift for his wife. The proprietress said that he had watched the Derby on television. Scherr had on recollection of this, but in a statement made to the insurer's adjuster he had mentioned having watched the Derby. The Mother's Day gift, his floor samples, and his walter were taken to his wife by Mary Heitz, and his wife said that the samples were splattered with blood. Mary Heitz, the proprietress, placed the occurrence later than Scherr did. She said it occurred around 5:00 or 5:30 and the hospital records showed the time of his admission to the emergency room to be 8:00 p. m.
The issues were reduced by stipulation to whether or not the employee suffered an accident arising out of and in the course of his employment. The extent and nature of the disability was also brought into question, but was never passed upon by reason of the commission's findings that the accident did not give rise to a compensable claim.
Under Section 287.120 RSMo 1949, V.A.M.S., it is provided that the employer shall be liable to the employee for personal injury or death 'by accident arising out of and in the course of his employment'. The appellants state that there was evidence to support the referee's finding that the accident did not occur in the course of Scherr's employment. We are not concerned, however, with the finding of the referee for appellate review is of the commission's findings and not the referee's. Michler v. Krey Packing Co., 363 Mo. 707, 253 S.W.2d 136; Ossery v. Burger-Baird Engraving Co., Mo., 256 S.W.2d 805; Clark v. Frazier-Davis Const. Co., Mo.App., 258 S.W.2d 934; Foster v. Carter Carburetor Corp., Mo.App., 264 S.W.2d 904.
The appellants readily concede that the scope of our review goes only to the findings of the commission, but seriously contend that the trial court erred in setting aside the award of the commission and in holding that the accident did arise out of Scherr's employment.
It the case of Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, 489, we stated that there must be a causal connection before it can be said that an accident arises out of the...
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