State ex rel. Kroger Grocery & Baking Co. v. Hostetter

• Decision Date: 12 November 1936
• Citation: 98 S.W.2d 683,339 Mo. 630
• Parties: State of Missouri at the relation of Kroger Grocery & Baking Company, a Corporation, and Travelers Insurance Company, a Corporation, Relators, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

98 S.W.2d 683

339 Mo. 630

State of Missouri at the relation of Kroger Grocery & Baking Company, a Corporation, and Travelers Insurance Company, a Corporation, Relators, v. Jefferson D. Hostetter, William Dee Becker and Edward J. McCullen, Judges of the St. Louis Court of Appeals

Supreme Court of Missouri

November 12, 1936

Writ quashed.

Jones Hocker, Gladney & Jones and Warren F. Drescher Jr., for relators.

Respondents' opinion herein fails to view the evidence in a manner most favorable to the award and to draw every reasonable inference of fact from such evidence in support of the award, and, on the contrary, stresses and relies upon the evidence that is unfavorable to the award and draws inference of fact therefrom against the award, and therefore said opinion is in conflict with the following decisions of this court, which are to the effect that the finding of fact and rulings of Missouri Workmen's Compensation Commission are in the nature of a special verdict and are conclusive upon appeal if supported by any substantial competent evidence, and that the court, in a cause appealed from the commission, must view the evidence most favorable to the award and draw every reasonable inference of fact from such evidence in support of the award: Crutcher v. Curtiss-Robertson Airplane Co., 331 Mo. 169, 52 S.W.2d 1019; Leilich v Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 61; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Shroyer v. Mo. Live Stock Comm Co., 332 Mo. 1219; State ex rel. Probst v. Haid, 62 S.W.2d 871.

Wayne Ely, Tom Ely, Jr., and Ely & Derrick for respondents.

There is no conflict between the opinion of respondents and the decisions of the Supreme Court cited by relators; the facts in those cases being distinguishable from the facts in the present case. The facts as disclosed by the opinion of respondents overwhelmingly warrant respondents' conclusion that the facts found by the Workmen's Compensation Commission do not support the award, and that the award of the commission denying compensation is not based on substantial, competent evidence. The cases cited by relator correctly state the rule of law that every reasonable inference of fact must be drawn from the evidence in support of the award, but a mere reading of respondents' opinion will conclusively show that the employee was overcome by heat, while performing work for his master, that the heat was greater than elsewhere in the community, constituting an extra hazard, and that his heat prostration arose out of his employment. There was not a scintilla of evidence from which a reasonable man could draw the conclusion that the bake shop in which the employee worked was not appreciably hotter than any other part of the plant or any place in that community. Crutcher v. Curtiss-Robertson Airplane Co., 331 Mo. 169, 52 S.W.2d 1019; Leilich v. Chevrolet Motor Co., 328 Mo. 112, 40 S.W.2d 601; Elsas v. Montgomery Elevator Co., 330 Mo. 596, 50 S.W.2d 130; Doughton v. Marland Refining Co., 331 Mo. 280, 53 S.W.2d 236; Shroyer v. Mo. Live Stock Com. Co., 332 Mo. 1219; State ex rel. Probst v. Haid, 62 S.W.2d 871; Schulz v. Great Atlantic & Pacific Tea Co., 56 S.W.2d 126. Every case must be decided upon its own facts and if there is not sufficient, competent evidence in the record to warrant the making of the award, or if the facts do not support the award, the appellate court should reverse the finding of the commission and the respondents properly did so in this case: Sec. 3342, R. S. 1929; Spiro v. St. Louis Transit Co., 76 S.W. 684; Adams v. Lilbourn Grain Co., 48 S.W.2d 147; McWorter v. White Baking Co., 81 S.W.2d 998; Teague v. Laclede Christy Clay Co., 52 S.W.2d 882; Johnson v. Reed, 32 S.W.2d 107; Woods v. American Coal & Ice Co., 25 S.W.2d 144; Peak v. Judd, 278 S.W. 1044; Russell v. Ely-Walker D. G. Co., 60 S.W.2d 44.

OPINION

Hays, J.

Certiorari to the St. Louis Court of Appeals, directing it to send up for review the record in the case of Bicanic et al. v. Kroger Grocery and Baking Co. et al., reported in 83 S.W.2d at page 917.

That was a proceeding under the Workmen's Compensation Act. Final hearing was had before the full commission, which rendered its final award for the employer and insurer. Upon review of such award the Circuit Court of St. Louis rendered judgment reversing the same and remanding the cause for further hearing. Thereupon the employer and insurer, relators here, took the cause to the St. Louis Court of Appeals for review. The Court of Appeals, finding the award of the commission denying compensation was not based upon sufficient competent evidence, and that the employee's death was the result of an accident arising out of and in the scope of his employment, affirmed the judgment of the circuit court.

In their brief the relators state that the final opinion of the Court of Appeals correctly states the principle of law applicable to the case and also clearly sets forth the rule of law applicable to cases of this character.

Relators contend "that when the evidence is considered in a light most favorable to the award and all reasonable inferences of fact from the evidence are adduced in support of the award, then that it will be found in this cause that there was no showing that the death of the employee was compensable, and that the character of the employment was not shown to have been of a nature so as to have...