Schraner v. Massman Const. Co.

• Decision Date: 04 April 1932
• Docket Number: No. 17458.,17458.
• Citation: 48 S.W.2d 104
• Parties: SCHRANER et al. v. MASSMAN CONST. CO. et al.
• Court: Missouri Court of Appeals

48 S.W.2d 104

SCHRANER et al. v. MASSMAN CONST. CO. et al.

No. 17458.

Kansas City Court of Appeals. Missouri.

April 4, 1932.

Appeal from Circuit Court, Jackson County; Darius A. Brown, Judge.

Proceeding under the Workmen's Compensation Law by Artensia Schraner and another, claimants, for the death of John F. Schraner, opposed by the Massman Construction Company, employer, and the Hartford Accident & Indemnity Company, insurance carrier. The Workmen's Compensation Commission denied compensation, and on appeal the circuit court affirmed the Commission's decision, and claimants appeal.

Affirmed.

Kenneth E. Midgley and Henry I. Eager, both of Kansas City (Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, of counsel), for appellants.

George W. Meyer, of Kansas City, for respondents.

BOYER, C.

This is an appeal from the judgment of the circuit court affirming the award of the Workmen's Compensation Commission which denied compensation for the death of John F. Schraner. Appellants were partial dependents of the deceased and filed a claim against the Massman Construction Company, the employer, and the Hartford Accident & Indemnity Company, the insurer.

The answer admitted the statements of the claim except "that the injured employee died as a result of an accident arising out of and in the course of his employment, and within the meaning of an accidental injury under the Workmen's Compensation Act." The final award on review by the full commission was in favor of the employer and insurer and against the dependents, and no compensation was awarded, "for the reason that dependents failed to prove that John F. Schraner's death resulted from an injury arising out of and in the course of his employment." On appeal to the circuit court, the award was affirmed, and claimants have duly appealed to this court.

The substance of the assignments of error is that the award of the commission and the judgment of the court are erroneous because there was not sufficient competent evidence in the record to warrant the making of the award, and that the ground upon which compensation was denied is not supported by the evidence, and that under the competent evidence in the case claimants are entitled to compensation as a matter of law. This calls for a full statement of the proof.

The Massman Construction Company was operating under contract with the government, and was engaged in construction work to improve the navigability of the Missouri river. It owned a fleet of river boats; among them were a quarter boat, office boat, launch, and tug. At the time of Schraner's death, they were lashed together, and the quarter boat was fastened to the west bank of the Missouri river about two and one-half miles south of Leavenworth. Schraner had been in the service of the construction company for several months. He was employed on an hourly basis at 40 cents an hour for an eight-hour day from 7 a. m. to 5 p. m., and would perform whatever service or work that was assigned to him. Among other things he drove a truck, when occasion required, to haul provisions, groceries, and ice, and to go to a shop for repairs at Leavenworth or Kansas City. When not so engaged, he would do regular labor. He and a number of other employees obtained board and lodging and lived on the quarter boat. The quarter boat was owned by the company, but was not operated by it. The Central Boarding & Supply Company, a separate corporation, under agreement with the Massman Construction Company, took over and operated the quarter boat; had full charge of same; and supplied the construction company's employees with board and lodging thereon at the rate of $1 a day. It appears that the boarding company also maintained a commissary on the boat, and on the 15th and the last day of each month would render a bill for the board and the amount of purchases from the commissary for each man and deliver it to an agent of the construction company with a signed ticket by each employee authorizing the construction company to deduct from the wages of the employee the amount necessary to pay for his board and purchases from the commissary. Such bills would be attached to the pay roll and go to the office of the construction company, where the amount of bills due the boarding company would be deducted from the wages of the employees and paid to the boarding company. There is no evidence that the employees were required to live on the quarter boat, and there is testimony that they were not advised to stay there. There was no connection whatever between the construction company and the boarding company, and the construction company did not pay for the upkeep of the boat.

Under the terms of the contract with the government, the construction company was not permitted to do any work on the Fourth of July. On the 3d day of July, 1930, at about the hour of 5 p. m., all employees ceased work and were informed they were at liberty until 7 a. m. on July 5. Many of the employees departed, and did not return until late on the day of the Fourth. Schraner, in company with another employee, left the quarter boat and went to Leavenworth on some business of their own, and returned to the boat about 7:30 o'clock. Before going on the boat, Schraner obtained a jug of whisky and took it on the boat with him. He and his companion and two others on the boat, referred to as flunkies, went to the kitchen, made eggnog, and indulged in drinking for several hours. Schraner's companion, who had accompanied him to Leavenworth, some time during the evening and before midnight, fell asleep. Schraner was seen to be under the influence of liquor and staggering about. He was seen on the deck of the boat two or three different times during the evening. At about 1:30 a. m. on July 4, the alarm was given that a man was overboard. The launch man, who was sleeping on an adjacent launch, heard the cry, jumped out of his bunk, grabbed a life belt, stepped through the door on the stern of the launch, and saw a man in the water about 20 feet away. He threw the life belt to the man and called to him to catch it. Witness testified: "He didn't even look at me. He was in the light of the window from the office boat at the stern of the launch I was on. He didn't pay any attention to me and he sank immediately after I threw him the belt. I threw the belt close, but he did not even seem to notice the belt at all or me calling to him. As to who this man was, under oath I can't swear that it was Schraner drowned that night." Schraner's body was found three days later some distance down the river.

There is no evidence as to how Schraner got in the water, although one witness who was night watchman said that a government inspector who was on the boat saw him go overboard, and that he was the man who gave the alarm "man overboard." The inspector was not called as a witness, and no one testified to occurrences or to the actions of Schraner immediately before he entered the river. The night watchman testified that Schraner was drinking most of the time when he saw him from 8 o'clock until 12:30. The watchman tried to get him to bed; he was supposed to keep order on the boat and was the boss; he opposed their drinking, but did not tell Schraner to get off the boat. He also testified that he did ask him to get off the boat, but did not try to force him off, and that others were also drinking.

It was further shown that the quarter boat was a two-deck affair; the lower floor being used for sleeping quarters and the upper floor for a dining room and kitchen. At the front and rear ends of the deck were balustrades; there was no railing on the sides of the deck, but there was a cable on the side of the building to hold to while one walked on the deck along the side of the building. There were no toilet facilities on the boat, and the men...