Staten v. Long-Turner Const. Co.
| Decision Date | 22 January 1945 |
| Docket Number | No. 20534.,20534. |
| Citation | 185 S.W.2d 375 |
| Parties | STATEN v. LONG-TURNER CONST. CO. et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; John F. Cook, Judge.
"Not to be reported in State Reports".
Proceeding under the Workmen's Compensation Act by Booker T. Staten, claimant, opposed by Long-Turner Construction Company, employer, and Liberty Mutual Insurance Company, insurance carrier. From a judgment affirming an order of the Workmen's Compensation Commission which denied compensation, claimant appeals.
Affirmed.
E. Robert Klein, of Kansas City, for appellant.
Leo T. Schwartz, of Kansas City (R. S. McKenzie, of Kansas City, of counsel), for respondents.
BOYER, Commissioner.
This is an appeal from a judgment of the circuit court of Jackson County affirming an award of the Workmen's Compensation Commission which denied compensation for an injury received by appellant. All facts necessary to establish jurisdiction of the commission over the claim of Booker T. Staten, an employee, against Long-Turner Construction Company, employer, and Liberty Mutual Insurance Company, its insurer, are admitted in the record.
The claim for compensation was filed January 29, 1943, in which it was stated that the accident occurred January 7, 1943, and in answer to the question how accident happened, cause, and work employee was doing for employer at the time, claimant states: "Entered tool shed at site of work during working hours to fetch lunch box and was struck by heavy, blunt instrument wielded by Frank Campbell, co-employee, in unprovoked assault." The employer and insurer filed a general denial in answer to said claim for compensation.
The case was duly heard by a referee for the commission beginning May 3, 1943, at the conclusion of which hearing the referee found in favor of the employer and insurer and against the employee and awarded no compensation for the alleged accident. The referee recited: "I find from all the evidence that the condition complained of by employee herein was not the result of an accident arising out of and in the course of his employment on January 7, 1943, as alleged; therefore, compensation must be and same is hereby denied." Claimant applied for a review of said finding by the full commission which was granted, together with the privilege of oral argument. After the hearing before the full commission the commissioners unanimously affirmed the award of the referee and made the same finding as that shown in the report of the referee quoted above. The employee appealed to the circuit court of Jackson County where the award of the commission was affirmed and then duly appealed to this court, and seeks a reversal of the award of the commission and the decision of the circuit court mainly on the statutory ground that there was not sufficient competent evidence in the record to warrant the making of the award. Sec. 3732, R.S.Mo.1939, Mo.R.S.A.
Appellant's chief contention as shown in his assignments of error, brief and argument is that the court erred in affirming the award because there is no substantial evidence in the record upon which to base a finding that appellant's injuries and disability did not arise out of and in the course of his employment. Respondents contend to the contrary. The chief issue for decision on this appeal is thus presented. The parties do not agree upon the facts and the question for decision calls for a search of the record to ascertain whether or not there is sufficient substantial evidence to support the finding and award of the commission.
At the beginning of the hearing on May 3, 1943, claimant asked leave and was granted permission to amend his claim and his answer to question 15 as to how the accident happened and the work the employee was doing at the time so that it would read: "Entered tool shed at site of work during working hours to obtain a tool and fetch lunch box and was struck by heavy, blunt instrument wielded by Frank Campbell, co-employee, in unprovoked assault."
It appears from the evidence that Long-Turner Construction Company was the general contractor engaged in the construction of the Pratt-Whitney aircraft motor plant outside Kansas City in Jackson County. A very large number of workers were employed. The work was divided into numbered operations and tool houses were assigned to each operation. Claimant testified that he was engaged as a common laborer with a crew of workers consisting of forty or more black and white persons. The work of his particular crew was to salvage lumber that had been used in making concrete forms and they were engaged mainly in drawing nails from said lumber with various tools supplied for that purpose. The workers were identified by a metal disc with a number on it called a brass, and when going to work they would check in at their designated tool house. Claimant testified that the workers were instructed by the foremen where to get their tools and that they could only get them at one place. When a worker checked in he presented his brass and called for the tools which he desired in his work, and the brass was put on a hook and an additional tag showing the tools he had drawn. It was the custom that the employees were permitted to leave their lunch buckets in the tool house in order to prevent freezing and they did so. Claimant says that he checked in about eight o'clock January 7, 1943, to go to work and went directly to the tool house where he was supposed to go; that he checked out a hammer and went to the salvage yard where he was working opposite another employee who bore the number 6391. Claimant did not identify him by name, but his name was Donnelly as shown by other evidence, and he was a white man. Claimant had forgotten his lunch bucket that day and did not have any with him, and says that about ten-thirty o'clock in the morning he asked one of his co-employees about lunch, who offered to share his with him, and then Donnelly who was working opposite him said: and that Donnelly also said he didn't feel very good. About eleven o'clock, Staten says that he had finished pulling nails out of light lumber and he decided to get a crowbar to finish pulling nails out of heavier lumber; that he did not tell his foreman that he was going to get a crowbar and did not obtain permission from any one to get it, but stated that his information from the foreman was that any time another tool was needed he should go to the tool house to get it and have the other numbers placed on his brass at the tool house. Claimant left his place of work and says he went to get a crowbar and Donnelly's lunch bucket. He did not go to the tool house that was assigned to his crew, but went to another place a block away from his own tool house which was called a bolt house and was adjacent to the carpenters' tool house where the carpenters were at work on a large platform. He says he went into this particular tool house where he met Campbell who asked him what he was looking for. Campbell was a carpenters' foreman and in the absence of a Mr. Johnson, who was the man regularly in charge of that particular tool house, Mr. Campbell had placed a man by the name of Silvers in charge. Claimant says he was looking for Mr. Johnson who was usually in charge at that station. There were four white men in the tool shed at the time, two carpenters' foremen including Campbell and Bohn, Baellow who was a field time checker, and Silvers, a carpenter's helper. They were engaged mainly in examining plans and records. Claimant says that he answered Campbell and said: "I am looking for a lunch bucket with the number 6391 on it," and that Campbell said: "You ain't going to take anything out of here." Staten then said: "I am not going to take anything out but a lunch bucket which I was sent for," and that Campbell replied: "You ain't going to take a damn thing out of here." Staten then began looking around over the door for the lunch bucket and Campbell repeated the statement that he was not going to take anything out of there, and Staten replied with a vulgar remark indicating that if he found it, he would take it. He says that as he started to reach for the lunch bucket which he thought was 6391, and as he turned his head, he was struck and fell to the floor unconscious. He was assisted to the first aid, thence to the hospital, and finally was taken home. Claimant was severely injured. He sustained a skull fracture and permanent total disability estimated at fifteen to twenty per cent, but the occurrence took place, as shown by other evidence, under entirely different circumstances. Claimant was corroborated by witness Davis, who worked near him, to the effect that claimant said he was going for a wrenching bar and that the white man gave claimant permission to get his lunch bucket and told him the number of it.
Mr. Donnelly testified on behalf of respondents and stated that his lunch box was in the laborers' tool house and not at the place where claimant was injured; that he had offered to share his lunch with Staten at twelve o'clock, but testified positively and repeatedly that he never did authorize Staten to go get his lunch and did not know that he had gone for it. Donnelly also testified that when the crew quit work that evening there were an extra crowbar and claw hammer left on the job; that the foreman asked him where Staten had gone and called attention to the extra bar and hammer and asked if they belonged to him.
The next day after Staten was injured and had been removed to his home a representative of the insurer called on him, and in an interview with him and his wife wrote out a statement concerning the accident which was made to him by Staten. The statement was then read by claimant's wife to him and no objections or corrections were made. This statement was offered in evidence on the theory that it contained...
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