Sweeny v. Sweeny Tire Stores Co.

• Citation: 49 S.W.2d 205
• Decision Date: 03 May 1932
• Docket Number: No. 22101.,22101.
• Parties: SWEENY v. SWEENY TIRE STORES CO. et al.
• Court: Court of Appeal of Missouri (US)

49 S.W.2d 205

SWEENY v. SWEENY TIRE STORES CO. et al.

No. 22101.

St. Louis Court of Appeals. Missouri.

May 3, 1932.

Rehearing Denied May 18, 1932.

Appeal from St. Louis Circuit Court; H. A. Rosskopf, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Ida M. Sweeny, for the death of Clarence A. Sweeny, her son, claimant, opposed by the Sweeny Tire Stores Company, employer, and the Hartford Accident & Indemnity Company, insurer. From the judgment of the circuit court affirming the final award of the Workmen's Compensation Commission in favor of claimant, defendants appeal.

Affirmed.

Holland, Lashly & Donnell and Harold C. Ackert, all of St. Louis, for appellants.

John T. Manning, of St. Louis, for respondent.

BENNICK, C.

This is an appeal from the judgment of the circuit court of the city of St. Louis, affirming a final award of the Workmen's Compensation Commission.

The claim was filed in due time by Mrs. Ida M. Sweeny, the mother, as the alleged dependent of Clarence A. Sweeny, the deceased employee. The Sweeny Tire Stores Company, of 1501 North Grand boulevard, in the city of St. Louis, is the employer, and the Hartford Accident & Indemnity Company is the insurer.

The death occurred shortly after nine o'clock in the evening of March 9, 1930; the claim alleging that the deceased "was shot and killed in holdup in store." The answer denied, first, that the death was by accident arising out of and in the course of the employment; and, second, that the claimant was a dependent within the contemplation of the act.

John L. Sweeny, the father of the deceased, is the president of the employer company, and the deceased was the secretary of, and a stockholder in, the same, though his stock holdings seem to have been small. He worked regularly as a salesman for the company, for which he received a salary of $35 a week and expenses. He did his selling both in the store and on the street, and the company provided him with the use of an automobile for the latter purpose.

On the Sunday evening in question, the father, the deceased, and one Charles Jamison, a tire changer, were alone in the store, when three armed robbers entered and covered the occupants of the store with their weapons. They forced the deceased back behind the counter to the cash register, and compelled him to open it, and, after one of the robbers had secured its contents, they all started towards the door. There is evidence that the father told the deceased to let the robbers have the money.

The exact course of events transpiring afterwards is not at all clear from the testimony. One of the robbers either paused in his exit to search the father, or else the latter attempted to grapple with him as he passed on his way to the door. The deceased thereupon started forward, and either stumbled over a rim which was lying upon the floor and was caused to fall against one of the robbers, or else deliberately attempted to seize the robber who had the cash in his possession. At any rate, another of the robbers opened fire upon the deceased, a bullet entering his forehead just above the left eye, and killing him instantly.

From the conflicting testimony in the case, the commission found the facts to be that "three men entered the store where Sweeny was working and robbed the cash register; that as they were leaving the store with the money from the cash register, Sweeny grabbed one of the men, and another one of the three drew a revolver and shot him, killing him instantly."

The commission ruled that the death was by accident arising out of and in the course of the employment, and awarded the mother compensation at the rate of $10 a week for 300 weeks. One of the commissioners dissented from the award upon the ground that the claimant had failed to prove her status as a dependent.

An appeal was taken by the employer and insurer to the circuit court, where, as has been heretofore indicated, the award of the commission was affirmed. From the judgment so rendered, and at the judgment term, the employer and insurer have duly perfected their joint appeal to this court.

For their first point, appellants argue that the facts found by the commission fail to show, and indeed that there is not sufficient competent evidence in the record to show, that the death of the deceased was the result of an "accident" within the contemplation of the Compensation Act. Incidentally, the commission did specifically find that there was an accident; but aside from this we think that the point is utterly without merit. Concededly, when the deceased grappled with the robber, as the commission found he did, he subjected himself to a large measure of risk of bodily harm and injury; but nevertheless his death was by no means a necessary and inevitable consequence of his conduct. Many acts which an employee is called upon to perform in the course of his employment are fraught with danger of more or less degree, and yet, if injury or death follows, it is said to be an unexpected and unforeseen result of the intentional act of the employee, and is properly to be classed as an accident within the meaning of section 3305 (b), R. S. 1929. Carr v. Murch Brothers Construction Co., 223 Mo. App. 788, 21 S.W.(2d) 897; Guillod v. Kansas City Power & Light Co., 224 Mo. App. 382, 18 S.W.(2d) 97. Cases where injury or death has followed under circumstances the same as or similar to those at bar are to be found reported from many jurisdictions, and we know of no case, nor has one been cited to us, where the court has hesitated to denominate the injury or death as an accident, so far as regards the right to compensation. This contention may therefore be ruled against appellants without further comment.

The next point, however, is a much more serious one. This is the suggestion, which is earnestly advanced by appellants, that there is not sufficient competent evidence in the record to show that the death of the deceased was the result of an accident "arising out of and in the course of the employment."

Of course, as we understand the law, the conclusion that the death of the deceased came "in the course of" his employment is not to be seriously questioned. It occurred within the period of the employment, on the very premises of the employer, and while the deceased was engaged in the fulfillment of the duties of his employment. But this alone is not enough to make the case compensable for the phrases "out of" and "in the course of" the employment are not synonymous, but are independent of each other; proof of the one does not necessarily establish the other; and the inclusion of both elements in the act makes it obligatory upon the claimant, in meeting his burden of proof, to establish that the injury or death arose, not only "in the course of" the employment, but also "out of" the employment as well. Smith v. Levis-Zukoski Mercantile Co., 223 Mo. App. 743, 14 S.W.(2d) 470; Jackson v. Euclid-Pine Investment Co., 223 Mo. App. 805, 22 S.W.(2d) 849; Stone v. Blackmer & Post Pipe Co., 224 Mo. App. 319, 27 S.W.(2d) 459; Metting v. Lehr Construction Co., 225 Mo. App. 1152, 32 S.W.(2d) 121.

The phrase "out of" the employment refers primarily to the origin or cause of the accident. In attempting to announce somewhat of a general rule which would be applicable in a fashion to all cases, the courts say that an injury arises "out of" the employment when it is reasonably apparent, upon a consideration of all the facts and circumstances, that a causal connection exists between the conditions under which the employee's work is required to be done and the resulting injury. The risk may be either an ordinary or an extraordinary one, so long as it bears a definite relation to the employment; it may originate either from within or from without the employment, if only the exposure to the risk is peculiar to the employment; and the particular act, in the doing of which the injury follows, may even be ancillary to the employment proper, so long as it tends ultimately to react to the benefit of the employer. In other words, it is enough for the injury to be held to arise "out of" the employment if it is a natural and reasonable incident thereof, even though not foreseen or anticipated; but in all events it must be the rational consequence of some hazard connected with the duties which the employee is called upon to perform. Wahlig v. Krenning-Schlapp Grocer Co., 325 Mo. 677, 29 S.W.(2d) 128; Cassidy v. Etermit, Inc., 326 Mo. 342, 32 S.W.(2d) 75; Smith v. Levis-Zukoski Mercantile Co., supra; Hager v. Pulitzer Publishing Co. (Mo. App.) 17 S.W.(2d) 578; Jackson v. Euclid-Pine Investment Co., supra; Bise v. Tarlton (Mo. App.) 35 S.W.(2d) 993; Metting v. Lehr Construction Co., supra.

Indeed, it has been wisely said that there is no justification, in the practical application of the act, for investing the words "arising out of and in the course of the employment" with a technical meaning; that they are plain, ordinary, and everyday words, and therefore should be given their plain, usual, and ordinary meaning; and that every case involving their application with regard to the right to compensation, where a causal connection is sought to be made between the act and the injury, should of necessity be decided upon its own peculiar facts and circumstances. Leilich v. Chevrolet Motor Co. (Mo. Sup.) ...