Smith v. Levis-Zukoski Mercantile Co.

• Decision Date: 05 March 1929
• Parties: MRS. MARY SMITH, WIDOW OF JOHN C. SMITH (CLAIMANT), RESPONDENT, v. LEVIS-ZUKOSKI MERCANTILE COMPANY, A CORPORATION (EMPLOYER), AND GLOBE INDEMNITY COMPANY (INSURER), APPELLANTS. [*]
• Court: Missouri Court of Appeals

14 S.W.2d 470

223 Mo.App. 743

MRS. MARY SMITH, WIDOW OF JOHN C. SMITH (CLAIMANT), RESPONDENT, v. LEVIS-ZUKOSKI MERCANTILE COMPANY, A CORPORATION (EMPLOYER), AND GLOBE INDEMNITY COMPANY (INSURER), APPELLANTS. ^[*]

Court of Appeals of Missouri, St. Louis

March 5, 1929

Appeal from the Circuit Court of the City of St. Louis.--Hon. M Hartmann, Judge.

REVERSED.

Judgment reversed.

Jones Hocker, Sullivan & Angert for appellants.

(1) A master is liable to compensate an employee or his dependents only for such injuries as are received as a result of an accident which arises out of and in the course of the servant's employment. Mo. Workmen's Comp. Act, sec. 3 (Laws of Mo. 1927, p. 492); Hopkins v. Michigan Sugar Co., 150 N.W. 325 (Mich.); State ex rel. Duluth Brewing & Malting Co. v. District Court of St. Louis County et al., 151 N.W. 913; Pierce v. Boyer-Van Kuran Lumber Co., 156 N.W. 509. (2) The mere fact that an injury occurs on the master's premises is not sufficient to create liability under the act. The act covers a servant only when he is engaged in or about the premises where his duties are being performed or where his services require his presence as a part of such services. Mo. Work. Comp. Act sec. 7c (Laws of Mo. 1927, p. 496); Babineau's Case, 150 N.E. 4; Hallett's Case, 119 N.E. 673; Casualty Co. of America v. Industrial Board, 169 P. 76; Wisconsin Steel Co. v. Industrial Commission, 123 N.E. 295. (a) The Workmen's Compensation Act does not cover a servant who places himself in a dangerous position where his employment does not necessarily take him or where he incurs a danger of his own choosing outside of the reasonable requirement of his employment, the risk arising from such act not being incident to his employment. Russell v. A. & G. Murray, Ltd., 15 N. C. C. A. 288; St. Louis & O'Fallon Coal Co. v. Industrial Commission, 156 N.E. 764; Terminal Railroad Assn. v. Industrial Commission, 140 N.E. 827; United Disposal Co. v. Industrial Commission, 126 N.E. 183; Nelson Construction Co. v. Industrial Commission, 122 N.E. 113; Lumaghi v. Industrial Commission, 149 N.E. 11; Lancashire & Yorkshire Ry. Co. v. Highley, 15 N. C. C. A. 210. (b) There must be a proximate connection between the employment and the injury. Unless it be proved that the injury had its origin in a risk which may be fairly and reasonably traced to the service of the injured person, and that the injury flowed from such service as a rational consequence, no recovery may be allowed under the act. Employers' Liability Ins. Corp. (In re McNicol), 102 N.E. 697; Milliken v. Towle, 103 N.E. 898; Kneeland v. Parker, 135 A. 8; Lancashire & Yorkshire Ry. Co. v. Highley, 15 N. C. C. A. 210; Tiralongo v. Stanley Works, 133 A. 98; Machiatello v. Lynch Realty Co., 108 A. 799; Board of Education v. Industrial Commission, 151 N.E. 499; Illinois Oil Co. v. Grandstaff, 246 P. 832. (c) A finding that an injury occurred in the course of the employment raises no presumption that it arose out of the employment. Mello v. Industrial Commission, 258 P. 104; Karlson v. Rosenfeld, 137 A. 95; Simpson Const. Co. v. Industrial Commission, 240 P. 58; West Side Mill Co. v. Industrial Commission, 126 N.E. 219; Clifford v. Patterson, 117 N.E. 946; Spooner v. Detroit Saturday Night Co., 153 N.W. 657; Wisconsin Steel Co. v. Industrial Commission, 123 N.E. 295. (3) Recovery under the Compensation Act must be supported by a preponderance of the evidence. Libbey, McNeil & Libbey v. Industrial Commission, 157 N.E. 168; Consolidated Coal Co. v. Industrial Commission, 156 N.E. 325; Crews v. Moseley Bros., 138 S.E. 494; Guest Coal Co. v. Industrial Commission, 155 N.E. 326; Guthrie v. Iowa Gas & Electric Co., 204 N.W. 225; Union Colliery Co. v. Industrial Commission, 148 N.E. 262. (a) The findings of the Commission must rest on fact, and not on guess, surmise or speculation. In re Sanderson's Case, 113 N.E. 357 (Mass.); In re Sponatski, 108 N.E. 467 (Mass.); Chicago Daily News Co. v. Industrial Commission, 137 N.E. 797; Savoy Hotel Co. v. Industrial Board, 116 N.E. 712; Wisconsin Steel Co. v. Industrial Commission, 123 N.E. 295.

S.E. Garner for respondent.

BENNICK, C. Becker and Nipper, JJ., concur. Haid, P. J., not sitting.

OPINION

BENNICK, C.

This action was commenced by the filing of a formal claim for compensation under the provisions of the Workmen's Compensation Act, with the Missouri Workmen's Compensation Commission, on April 27, 1927, by Mary Smith, widow of John C. Smith, against Levis-Zukoski Mercantile Company, the employer of the deceased, and Globe Indemnity Company, the insurer. After a hearing before the commission, an award was entered in favor of the claimant, in the sum of $ 12 a week for three hundred weeks, together with $ 150 for burial expenses, or for an aggregate sum of $ 3750. Upon an appeal duly taken to the Circuit Court of the city of St. Louis, an order was entered affirming the findings of the commission, from which, after an unavailing motion for a new trial, the employer and insurer have jointly appealed to this court.

The claim is one for compensation for the death of claimant's husband by accident, alleged to have arisen out of and in the course of his employment with Levis-Zukoski Mercantile Company. The answer of appellants denied that the injuries resulting in his death arose out of and in the course of his employment, and averred that his injuries were self-inflicted, with suicidal intent, or while he was temporarily insane.

About ten o'clock, on the morning of January 10, 1927, John C. Smith, fifty-five years of age, a trusted employee of Levis-Zukoski Mercantile Company for a period of ten years, was found dead in the bottom of an elevator shaft, in the latter's place of business at 1113 Washington Avenue, in the city of St. Louis. The employer's building was seven stories high; and it appears that in the elevator shaft referred to, extending from the top floor to the basement, three elevators were run, two for passengers, and one for freight service, although one of the passenger elevators could not be lowered to the basement level. The body of the deceased was found in the bottom of that portion of the shaft in which the freight elevator ran.

There was a stairway which extended up beside the elevator shaft from the basement; and, to prevent one using the stairway from falling into the shaft, a heavy, immovable wire screen or grating was constructed as a guard between the open side of the stairway and the shaft. This screen was estimated as being one inch in width, and varied in height from ten or eleven feet on the lower floor, to five feet six inches from the top step of the sixth floor, which latter measurement is of particular significance, as will hereafter appear. Between the top of the grating and the floor immediately above, there was, in each instance, an open space of approximately three feet.

Smith was employed as a porter; and, while his general duties were to sweep, dust, shine the brass, run errands, and perform such other occasional tasks throughout the entire building and elsewhere as might be assigned to him, the evidence was that his regular duties were confined exclusively to the second, third, and fourth floors, and that other men were assigned to look after the basement and the remaining floors. All sweeping was done each morning before the store opened at eight o'clock, after which the windows would be cleaned; and once or twice each month, between the hours of eight and twelve in the forenoon, the porters would take brooms and give the stairway a thorough cleaning from top to bottom, and at the same time wipe the dust from the top of the screens with their brooms. There was testimony, however, that, on the day of Smith's death, the stairway and screens were not being cleaned.

As an exception to the above, it should be particularly noted that the porters had nothing whatever to do with sweeping or cleaning out the elevators or elevator shaft, or cleaning the bottoms of the elevators, all of which work was invariably done by members of the engineering department which had the elevators in charge. So far as the evidence goes, the only duty that the porters had in connection with the elevators was to relieve the regular operators of the passenger cars. It is true that there was testimony of one isolated instance when Smith had removed the body of a dead rat from underneath the stairs at the bottom of the elevator shaft, but on this occasion the door had been opened by the elevator operator for Smith to enter, and the car raised a slight distance. In fact, it is pertinent to add that the elevators were equipped with automatic locks so that the gates could not be opened from the outside; and that, on the day of the accident, and following the same, the cars were found to be in perfect working order, and all gates closed.

On the morning in question, Smith arrived at his work at 6:40 o'clock--ten minutes late--and immediately went to the basement to don his working clothes. At that time, he complained that he was not feeling well, and his movements were sufficiently unusual to prompt certain fellow employees to inquire as to his condition. As a matter of fact, Smith agreed to consult a physician, and was then taken to the front entrance, where he might wait until another porter had completed his work, so that he might be free to accompany him to the doctor's office. Shortly afterwards, however, Smith appeared upon the second floor, and began sweeping, although it was noticeable that his movements at work were not of their accustomed character.

The peculiarity in Smith's actions had been observed for the last week or two prior to the date of his death. Whereas he was ordinarily of lively and sociable disposition, throughout...