Schulz v. Great Atlantic & Pacific Tea Co.

• Decision Date: 14 December 1932
• Citation: 56 S.W.2d 126,331 Mo. 616
• Parties: Emma Schulz v. The Great Atlantic & Pacific Tea Company, a Corporation, Appellant
• Court: Missouri Supreme Court

56 S.W.2d 126

331 Mo. 616

Emma Schulz v. The Great Atlantic & Pacific Tea Company, a Corporation, Appellant

Supreme Court of Missouri

December 14, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Harry A Rosskopf, Judge;

Judgment modified, affirmed and remanded.

Case Voyles & Stemmler for appellant.

(1) The employee's death, even though the result of heat prostration suffered while at work, was not by "accident" as that term is required to be construed by the act, that is, "an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury." (a) There was no injury as that term is defined by the act, that is, "only violence to the physical structure of the body and such disease or infection as naturally results therefrom." (b) The act provides that the term "injury" shall not "include death due to natural causes occurring while the workman is at work." Taylor v. Swift & Co., 114 Kan. 431, 219 P. 516; Smith v. Standard Sanitary Mfg. Co., 211 Ky 454, 277 S.W. 806; Liljegren v. Kropp Forge Co., 201 Ill.App. 565; Grasteit v. Industrial Comm., 290 P. 764. (2) Even though injury or death from atmospheric causes be held to be "by accident," such injury or death does not arise "out of the employment" unless the employee, by reason of his duties, is subjected to a greater hazard of injury or death from such cause than the public in general. 1 Honnold on Workmen's Compensation, p. 428, sec. 119; Angerstein, "The Employer and the Workmen's Comp. Act of Illinois" (Rev. Ed. 1930) p. 85; Stone v. Blackmer & Post Pipe Co., 27 S.W. 459; Morris v. Dexter Mfg. Co., 40 S.W.2d 750; Slanina v. Industrial Comm. of Ohio, 117 Oh. St. 329, 153 N.E. 831; Consumers' Co. v. Ind. Comm., 324 Ill. 152, 154 N.E. 423; Miskowiak v. Bethlehem Steel Co., 156 Md. 690, 145 A. 199; Lewis v. Industrial Comm., 178 Wis. 449, 190 N.W. 101; Dougherty's Case, 238 Mass. 456, 131 N.E. 67; Campbell v. Clausen Flanagan Brewery Co., supra; Hargrove v. Arnold Const. Co., 229 Mich. 678, 202 N.W. 918; Sherman v. Flint Spring Water Ice Co., 229 Mich. 648, 202 N.W. 936; Alzina Const. Co. v. Industrial Comm., 309 Ill. 395, 141 N.E. 191; Gale v. King Park Amusement Co., 208 N.W. 739. (3) The finding of the Commission that the employee's death was not the result of a special hazard and did not arise "out of the employment" is a finding of fact, is supported by the evidence, and is binding and conclusive upon the reviewing court. The circuit court should have accepted said finding as final and affirmed the award. R. S. 1929, sec. 3342; State ex rel. v. Mo. Workmen's Compensation Comm., 320 Mo. 893, 8 S.W.2d 897; Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Hammack v. West Plains Lumber Co., 30 S.W.2d 650; Hager v. Pulitzer Pub. Co., 17 S.W.2d 578; Rollens v. Keller Const. Co., 24 S.W.2d 1077; De Moss v. Evens & Howard F. B. Co., 37 S.W.2d 961; Gendron v. Dwight Chapin & Co., 37 S.W.2d 486; Glaze v. Hart, 36 S.W.2d 684; Waring v. Met. Life Ins. Co., 37 S.W.2d 418. (4) In the event of a remanding to the Commission, that body should be directed to enter an award based upon the degree of actual dependency. Under the facts shown in evidence, the employee was not legally liable for respondent's support, and she is not entitled to the conclusive presumption of total dependency. R. S. 1929, sec. 3319; Matlock v. Matlock, 86 Oregon, 78, 167 P. 311; Price v. Price, 75 Neb. 552, 106 N.W. 657; Hawkins v. Hawkins, 193 N.Y. 409, 86 N.E. 468; Poss v. Poss, 164 A.D. 213.

Everett Hullverson, Staunton E. Boudreau and Giessow & Giessow for respondent.

(1) The sufficiency of the evidence is by the statute expressly made a question of law for the court on appeal. R. S. 1929, sec. 3342; Jillson v. Ross, 94 A. 718; State ex rel. Niessen v. District Court of Ramsey County, 172 N.W. 134; Smith v. Levis-Zukoski Merc. Co., 14 S.W.2d 472; Schneider Workmen's Compensation Law (2 Ed.) 520, pp. 1790-91; State ex rel. v. Mo. Workmen's Compensation Comm., 8 S.W.2d 900. (a) "Competent" evidence qualifies the character of evidence and means that evidence which the very nature of the thing to be proved requires as the fit and appropriate proof in the particular case under the rules of admissibility as applied in courts of record. 22 C. J. 192, sec. 157; Jones on Evidence (3 Ed.) 7; Allison v. Eyerman, 43 S.W.2d 1063; Goltra v. Pinland, 77 P. 133, 45 Ore. 254; 1 Greenleaf on Evidence (14 Ed.) 2. (b) "Sufficient" evidence measures the quantum of proof required and means that amount of proof which will satisfy the mind and conscience of a reasonable and unprejudiced man to the degree of certainty required in the particular case under consideration and so convince him that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest. 23 C. J. 9, sec. 1738; Jones on Evidence (3 Ed.) 7; Faulkner v. Simms, 94 N.W. 115, 68 Neb. 295; Waldron v. N. Y. Cent. Ry. Co., 140 N.E. 163, 106 Oh. St. 371; Brittain v. Industrial Comm. of Oh., 115 N.E. 110, 95 Oh. St. 391; Cole v. McClure, 102 N.E. 266, 88 Oh. St. 1; Brewer v. Doose, 164 S.W. 324; Richmond & D. Railroad Co. v. Trammell, 53 F. 201. (c) The circuit court, on appeal from the Workmen's Compensation Commission, is required by the statute first to eliminate from its consideration all incompetent evidence, and then determine the sufficiency of the remaining competent evidence to warrant the making of the award, as a question of law. R. S. 1929, sec. 3342; Leilich v. Chevrolet Motor Co., 40 S.W.2d 604; Price v. Kansas City Pub. Ser. Co., 42 S.W.2d 54; Huelsman v. Stute, 28 S.W.2d 389; Harbour v. Gardnes, 38 S.W.2d 297; Rue v. Eagle Picher Lead Co., 38 S.W.2d 487; Smith v. Levis-Zukowski Merc. Co., 14 S.W.2d 472; Jenkins etc., Co. v. Alphena Portland Cement Co., 147 F. 643, 77 C. C. A. 625. (d) The sufficiency of the competent evidence becomes a question of law for the court, on appeal from the Workmen's Compensation Commission, if upon consideration of all the competent evidence the court shall conclude that reasonable men could, as above defined, reasonably reach only one conclusion from it. But if, upon consideration of all the competent evidence, the court should conclude that reasonable men might reasonably reach either or more than one conclusion, then the proper conclusion becomes one of fact for the decision of the Commission or its referee. R. S. 1929, sec. 3342; 2 Schneider Workmen's Compensation, sec. 520, pp. 1790-91; State ex rel. Niessen v. District Court of Ramsey County, 172 N.W. 134; Smith v. Levis-Zukowski Merc. Co., supra. (e) If the findings of the Workmen's Compensation Commission shall be supported by sufficient competent evidence, so defined, then the findings of the Commission properly has the weight and effect of a jury verdict. If not so supported, then the findings of the Commission have no proper weight and effect at all. Waterman v. Chicago Bridge & Iron Works, 41 S.W.2d 575; State ex rel. v. Mo. Workmen's Comp. Comm., 8 S.W.2d 900; Smith v. Levis-Zukowski Merc. Co., 14 S.W.2d 472; Sawtell v. Stern Bros. & Co., 44 S.W.2d 267. (f) The weight and effect to be given the findings of fact of the Workmen's Compensation Commission is entirely statutory. It is sui generis. The findings must be supported by sufficient competent evidence. Any attempt to give to the findings of fact by the Commission broadly the effect of a jury's verdict if supported by any substantial evidence ignores both the express provisions of the statute and the spirit and purpose of the Workmen's Compensation Act and defeats the beneficial purpose of that act. R. S. 1929, secs. 3342, 3374; Shout v. Gunite Concrete & Const. Co., 41 S.W.2d 629; Sawtell v. Stern Bros. & Co., 44 S.W.2d 264; Schrabauer v. Schneider Engraving Product, 25 S.W.2d 529; Betz v. Columbia Tel. Co., 24 S.W.2d 228. (g) The Supreme Court of Missouri has not yet analytically considered and ruled upon the contentions herein made as to the correct interpretation and effect of that part of the statute (R. S. 1929, sec. 3342) in issue on this appeal. State ex rel. v. Mo. Workmen's Comp. Comm., 8 S.W.2d 900; De May v. Liberty Foundry Co., 37 S.W.2d 648; Leilich v. Chevrolet Motor Co., 40 S.W.2d 604. (2) Death from heat prostration is an "accident" within the meaning of the Missouri Workmen's Compensation Act. Brewer v. Ash Grove Lime etc., Co., 25 S.W.2d 1089; Leilich v. Chevrolet Motor Co., 40 S.W.2d 601; Jackson v. Euclid-Pine Inv. Co., 22 S.W.2d 849; Elsey v. Fidelity Casualty Co., 187 Ind. 447, 120 N.E. 42, L. R. A. 1918F, 646; Continental Cas. Co. v. Johnson, 74 Kan. 129, 85 P. 545, 6 L. R. A. (N. S.) 609, 118 Am. St. Rep. 308, 10 Ann. Cas. 851; Pack v. Prudential Cas. Co., 170 Ky. 47, 185 S.W. 496, L. R. A. 1916E, 952; Higgins v. Midland Cas. Co., 281 Ill. 431, 118 N.E. 11; Bryant v. Continental Cas. Co., 107 Tex. 582, 182 S.W. 673, L. R. A. 1916E, 945, Ann. Cas. 1918A, 517; Lane v. Horn & Hardt Baking Co., 104 A. 617; Ismay Imrie & Co. v. Williamson, Law Rep. A. C. 1908, 439; Young v. Western Furniture Mfg. Co., 101 Neb. 696; Southern Cas. Co. v. Flores, 294 S.W. 933.

Westhues, C. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

This is an appeal from a judgment of the Circuit Court of the City of St. Louis, setting aside an award of the Workmen's Compensation Commission, denying respondent compensation. The judgment of the circuit court remanded the cause to the commission for a rehearing with directions to award compensation to respondent. From this judgment appellant duly appealed.

Respondent filed her claim for compensation, as the widow dependent of one August Schulz, an employee of appellant. For a period of two years deceased had been employed as a baker...