State ex rel. Probst v. Haid

• Decision Date: 03 August 1933
• Docket Number: 32678
• Parties: State of Missouri at the relation of Anna Probst, Attorney in Fact for Anna Schrammel, Widow of Frank Schrammel, Relator, v. George F. Haid and William Dee Becker, Judges of the St. Louis Court of Appeals
• Court: Missouri Supreme Court

62 S.W.2d 869

333 Mo. 390

State of Missouri at the relation of Anna Probst, Attorney in Fact for Anna Schrammel, Widow of Frank Schrammel, Relator, v. George F. Haid and William Dee Becker, Judges of the St. Louis Court of Appeals

No. 32678

Supreme Court of Missouri

August 3, 1933

Writ quashed.

Mason & Flynn and S. F. Pinter for relator.

(1) In order that an accident may be properly held to be one arising out of and in the course of the employment, it is not necessary that the employee should be at the time doing something which he was employed to do or instructed to do. Even though the employee at the time of the accident was doing something which he had never done before and which he was not employed to do or instructed to do, if, from the standpoint of the employee, the act appears to have been one done by the employee, in an honest attempt to further his master's business, and the act appears from the employee's standpoint to be a natural, reasonable one in furtherance of the master's interest, then an accident so occurring is an accident arising out of and in the course of the employment within the meaning of the statute. Ransdell v. International Shoe Co., 44 S.W.2d 1; Crutcher v. Curtiss-Robertson Airplane Mfg. Co., 52 S.W.2d 1023. The Supreme Court, in the Ransdell case, cites with approval and quotes from the cases of Hartz v Hartford Faience Co., 90 Conn. 539, 97 A. 1021; M'Quibban v. Menzies, 37 Sc. L. R. 526, 10 N. C C. A. 480, 481, 482, 483; Greer v. Thompson, 5 B. W C. C. 586. (2) The Compensation Commission, in its findings specifically bases its denial of award upon the finding that the belt was guarded and did not need holding, and concluded, therefore, that the accident did not arise out of the employment. In such a state of the record this court will assume that the finding of the commission was not against the claimant on any other possible questions or issues involved. Schulz v. Great Atlantic & Pacific Tea Co., 56 S.W.2d 128. (3) When it appears that the Compensation Commission has reached its conclusion by a misapplication of the law to facts clearly established by substantial evidence in the case or by misapplication of the law to its own findings of fact, the appellate court should reverse the award, and in failing to do so in this case the court failed to follow the decisions of this court in the following cases: Schulz v. Great Atlantic & Pacific Tea Co., 56 S.W.2d 126; Leilich v. Chevrolet Motor Co., 40 S.W.2d 604, 328 Mo. 112. (4) The defendants in this case had no right to file an answer expressly denying that the claimant's husband died as a result of an accident arising out of the employment in the face of the fact that the defendants had previously admitted this very thing. This is especially true in view of the fact that the matters relied on in support of the second and inconsistent answer are all matters within the knowledge of the defendants at the time the first answer was filed, and no explanation was given for the change of front. Neville v. D'Oench, 34 S.W.2d 491; Harrison's Admr. v. Hastings, 28 Md. 346; Clark v. Ry. Co., 127 Mo. 255.

John M. Goodwin for respondents.

The Supreme Court, on certiorari to the Court of Appeals, may determine only whether the opinion of the Court of Appeals conflicts with the last previous ruling of the Supreme Court. State ex rel. Security Ins. Co. v. Trimble, 318 Mo. 173, 300 S.W. 812. On certiorari to quash an opinion of a Court of Appeals the Supreme Court will not determine the correctness of the opinion. State ex rel. v. Cox, 9 S.W.2d 953. The Supreme Court, on certiorari to quash the opinion of a Court of Appeals, determines the facts from the opinion and does not look to any other portion of the record. State ex rel. English v. Trimble, 9 S.W.2d 624. The writ of certiorari issued by the Supreme Court brings up nothing for review but the record of the tribunal to which it is directed, so that the evidence cannot be considered, although included in the return. State ex rel. School District of Platte Co. v. Sexton, 151 Mo.App. 517, 132 S.W. 11.

Hyde, C. Ferguson, C., concurs; Sturgis, C., dissents.

OPINION

HYDE

This is a proceeding in certiorari to quash the opinion of the St. Louis Court of Appeals in Probst v. St. Louis Basket & Box Company, 52 S.W.2d 501. The Court of Appeals reversed the judgment of the circuit court and remanded the cause with directions to enter judgment affirming an award of the Workmen's Compensation Commission, denying compensation. The action of the Commission and the circuit court is stated in the opinion of the Court of Appeals as follows:

"The commissioner who originally heard the claim denied compensation on the ground that 'the claimant failed to prove that the accident causing employee's death arose out of and in the course of his employment.'

"Upon review by the full commission, a finding was made that 'at the time of the accident the belt to which claimant alleges the deceased was to help hold on the machine was securely held on by guards, and there was no occasion for anybody to go upon the machine and hold said belt, and the employee did not go on said machine for any purpose connected with or related to his employment. Therefore said accident did not arise out of his employment,' and the commission denied compensation.

"On appeal the circuit court reversed the award of the commission and remanded the cause, and in due course defendants below bring this appeal."

The situation at the box company's plant prior to the injury resulting in the death of John Schrammel, for which compensation was sought, is disclosed by the evidence set out in the opinion of the Court of Appeals, as follows:

"There is testimony, which, if believed, tends to prove that the deceased, on the night in question, was in the employ of the defendant box company, and that it was his duty to remove material from a drying machine located on the employer's premises. The drying machine was in excess of one hundred feet long and about eight and one-half feet in height. On the top of the dryer there were certain pulleys connected by belts which were run by motor, which operated the drying machine. Veneer was placed in the dryer at one end by a co-laborer of Schrammel and taken out of the machine at the other end by Schrammel and placed upon a truck. When that truck was loaded it was Schrammel's duty to remove the truck and bring another truck up in place to be loaded.

"There is testimony further to support a finding that no duty of Schrammel's employment required him to get on top of the dryer, and that prior to the night in question he had never been known to get on top of any of the dryers, and that on the night in question no one ordered or requested him to get on top of the dryer. There is testimony also which, if believed, tends to prove that some weeks prior to the night of the alleged accident to Schrammel, wooden uprights had been placed on top of the particular dryer at which Schrammel was working, in juxtaposition to a belt which was stretched across two pulleys; that these uprights had been erected to prevent the belt from slipping off the pulleys when the motor, which ran the dryer, was started; that it had been necessary, before those uprights had been erected, for some one to hold this belt in place when the motor was started, but that, after the erection of the uprights, the belt would no longer slip off and no one was therefore required to hold the belt. . . .

"Fred Poeling testified that he was the day foreman of the plant and that some six weeks prior to the time that Schrammel met with the accident wooden guards had been put on to keep the belt from slipping off; that the guards were in proper position on this night; and that there was no occasion for anybody to go on top of the dryer to hold the belt."

Concerning the events of the night of Schrammel's injury the opinion of the Court of Appeals states the evidence as follows:

"John Bante, the night foreman in charge of the plant, on that night, prior to starting the motor of the dryer, said to a laborer named McKnight; 'Go on top of the dryer and look at the belt.' Q. Was it necessary for anybody to go up there and hold that belt to keep it from coming off the pulley? A. No, sir; it was not necessary. Q. Did you tell McKnight on this evening to hold the belt? A. No, sir; I didn't tell him to hold the belt. I told him just to look around. Q. For what purpose? A. Because I could not see from below how the belts run. Then I called up to McKnight 'everything all right?' 'Yes.' Q. Did you at any time see Schrammel on top of the dryer that evening? A. No, sir. Q. Did you ever send Schrammel on top? A. No. Q. Did you tell him on this evening to get on top? A. No. Q. Was it his duty to go on top and look at the belt? A. No, he had nothing to do with that. Q. What was the first you knew of Schrammel getting hurt? A. I had gone out and when I come in again I heard McKnight hollering, 'Oh, John; oh, John;' that was about a half an hour. . . .

"David Roth testified that he was an engineer employed by the defendant basket company, and looked after the engine and steam lines; that he saw McKnight up on top of the dryer the whole time he was up there; that he saw that the two upright guards were in position; that McKnight did not touch the belt while he was up there; that he was looking at him all the time, and that Schrammel was not up on top of the dryer; that, while McKnight was on top of the dryer John Brande started the motor, and after the machine was running, Brande said to McKnight, 'Is everything all right?' and McKnight, after signifying that everything was all right, started to walk 'on that way about twenty feet, and he hollered for an extension light --...