Stone v. Blackmer & Post Pipe Co.

• Decision Date: 06 May 1930
• Parties: MRS. FLORENCE STONE, DEPENDENT OF EVERETT STONE, DECEASED, RESPONDENT, v. BLACKMER & POST PIPE COMPANY (EMPLOYER), AND T. H. MASTIN & CO. (INSURER), APPELLANTS. [*]
• Court: Missouri Court of Appeals

27 S.W.2d 459

224 Mo.App. 319

MRS. FLORENCE STONE, DEPENDENT OF EVERETT STONE, DECEASED, RESPONDENT, v. BLACKMER & POST PIPE COMPANY (EMPLOYER), AND T. H. MASTIN & CO. (INSURER), APPELLANTS. ^[*]

Court of Appeals of Missouri, St. Louis

May 6, 1930

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

REVERSED.

Judgment reversed.

Fordyce Holliday & White for appellants.

Complainant having failed to prove, by the preponderance of the evidence that the death of deceased was caused "by accident arising out of and in the course of his employment," is not entitled to an award of compensation under the Missouri Workmen's Compensation Commission, and therefore the court erred in not affirming the award of the Missouri Workmen's Compensation Commission. Sub-paragraph B, sec. 7, Missouri Workmen's Compensation Act; Board of Education of the City of Chicago v. Industrial Commission et al., 151 N.E. 499, 500 (Ill.); Babineau case, 150 N.E. 4 (Mass.); Hoenig v. Industrial Commission of Wisconsin et al., 159 Wis. 646, 150 N.W. 996, L.R.A. 1916A, 339, 341; Kalwinski v. Lake Shore-Michigan Southern Ry. Co., 152 N.W. 213 (Mich.), L.R.A. 1916A, 342, 343; Kelly v. Kerry County Council, 22 Irish Law Times 23, 1 B. W. C. C. 194; M. & O. R. Co. v. Industrial Commission of Illinois et al., 28 F.2d 228 (Illinois, 1928), 230; Wiggins v. Industrial Accident Board, L.R.A. 1918F, 932 (Montana); Slanina v. Industrial Commission of Ohio, 158 N.E. 829 (Ohio); Gale v. Krug Park & Amusement Co., 114 Nebr. 432, 208 N.W. 739, 46 A.L.R. 1213; Thier v. Widdifield, 178 N.W. 16 (Mich.); Pottani v. State Industrial Accident Commission, 250 P. 864 (Cal.); McNicol case, 102 N.E. 697 (Mass.), L.R.A. 1916A, 306; Baker v. State Ind. Comm., 280 P. 3 (Okla.).

Lorts & Breuer for respondent.

As a matter of law and a matter of right the court very properly set aside the final award of the commission "upon the ground that the facts found by the commission do not support the finding of the commission and on the ground that the evidence in the record warranted the making of an award which the commission denied." Central Ill. P. S.C. v. Industrial Commission, 13 A.L.R. 967 and cases there cited 291 Ill. 256; Re Harrigen, 66 Ind.App. 298, 118 N.E. 142; McManamon's case, 113 N.E. 287 (Mass.); Memorandum Opinion Judge Sale, Ab. 49.

HAID, P. J. Becker and Nipper, JJ., concur.

OPINION

HAID, P. J.

--This is an appeal from the judgment of the circuit court reversing an order of the Workmen's Compensation Commission denying an award to the widow of an employee who was killed by the falling of a brick smokestack which was blown down by a tornado.

On the afternoon of September 29, 1927, about one o'clock, a tornado occurred in the city of St. Louis which swept in a general direction from the southwest part of the city to the northeast. In its course it did considerable damage, injuring several hundred people and caused the loss of some seventy-three lives. The tornado started at a point a short distance south of the Blackmer & Post Pipe Company, the employer in this case. Everett Stone was an employee of that company and had been in its employ for more than a year prior to September 29, 1927. The company was engaged in the manufacture of clay products, such as sewer pipes, drain pipes, and other similar products. There were three furnaces in use by the company, located in a building of the company, the furnaces being placed side by side, and they were equipped in the usual manner, with a high stack--being a brick chimney approximately eighty-five feet high; the building, itself, was approximately twenty-four feet high, and the smokestack extended some thirty feet above the highest point of the roof of the building. The deceased was an assistant fireman, his duty being to fire the furnaces and in the performance of his duty the deceased was required to stand in front of the furnaces, in order to shovel coal into them, and his position in the performance of such duties required that he stand in close proximity to the smokestack, where he was standing when he was struck by the falling stack and buried beneath some two feet of debris, consisting chiefly of the brick and mortar composing the smokestack; it further appeared that, as a result of the falling smokestack, a number of iron pipes at the front of the boiler and furnaces were broken, and, in consequence thereof, large quantities of steam and boiling water poured out and upon the bricks and mortar where Stone, the deceased, lay buried, so that when the body of the deceased was removed, within probably an hour after the falling down of the stack, his body was scalded and burnt almost beyond recognition.

The findings of fact of the Commission are that--

"The employee was killed by falling brick, caused by the collapse of a brick smokestack. The cyclone was the cause of the stack collapsing. This act of God was the direct cause of the employee's death. While it may be true that by reason of the high smokestack and the high-pressure-steam boiler, the place where the employee was working was more hazardous, there was nothing about either the smokestack, the boiler or the other surroundings that attracted lightning."

but the Commission was divided in opinion as to the application of the law and the denial of an award was, therefore, by a majority of the Commission.

The finding that the employee was killed by the falling brick is supported by the evidence and seems to admit of no doubt, and therefore, like the finding of a jury is conclusive (State ex rel. v. Missouri Comp. Comm. (Mo.), 8 S.W.2d 897; Hager v. Pulitzer Pub. Co. (Mo. App.), 17 S.W.2d 578; Woods v. American Coal & Ice Co. (Mo. App.), 25 S.W.2d 144), so that the question is whether, under the act, the employer is to be charged with a death benefit under such circumstances.

Section 7 (b) of our act (Laws 1927, page 495) provides, among other things, that:

"The word 'accident' as used in this act shall, unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury. The term 'injury' and 'personal injuries' shall mean only violence to the physical structure of the body and such disease or infection as naturally results therefrom."

It can hardly admit of doubt that the death of the employee was the result of an accident (Drecksmith v. Universal Carloading & Dist. Co. (Mo. App.), 18 S.W.2d 86), but an accident, to be a compensable one, must arise both in the course of the employment and out of such employment (Smith v. Levis-Zukoski Merc. Co. (Mo. App.), 14 S.W.2d 470; Hager v. Pulitzer Pub. Co. (Mo. App.), 17 S.W.2d 578), because "a mere showing that the employee was injured by accident occurring on the premises of his employer, at or near the regular place of service, does not serve to establish liability under the act. In other words, the fact that the employee was on the premises during his regular working hours, and was injured, will of itself form no basis for the presumption that the accident arose out of and in the course of his employment." [Smith v. Levis-Zukoski Merc. Co. (Mo. App.), 14 S.W.2d 470.]

An accident, therefore, which results in the course of the employment may also be said, we think, to arise out of such employment when it results as an incident to the character of the business which is being carried on. On the other hand if such accident is the result of a hazard unconnected with the prosecution of the work in hand, then there is a lack of that causal connection which would bring it within the terms of the act. We think there can be no question that this is the intent and meaning of the compensation act of our State, as well as those of other states, as seems evident from a consideration of the reasons for the adoption of those statutes. The purpose of all such acts was to place, as an expense of operation of a business, the loss of efficiency in the usefulness of its employees occasioned by accidents arising as an incident to the conduct of such business just as other costs of operation are chargeable, but such laws were not intended to insure employees against accidents that do not so arise. While it is true that our act commands that it shall be liberally construed with a view to the public welfare (sec. 76, Laws 1927, page 522), that does not authorize the allowance of a claim that lacks some of the essential elements required by the act.

In the present instance the death resulted from a cause wholly disconnected with the...