Tabor v. Midland Flour Milling Co.

• Citation: 168 S.W.2d 458,237 Mo.App. 392
• Parties: Alva G. Tabor, Respondent, v. The Midland Flour Milling Co., and Lumbermen's Mutual Casualty Co., Appellant
• Decision Date: 01 February 1943
• Court: Court of Appeals of Kansas

168 S.W.2d 458

237 Mo.App. 392

Alva G. Tabor, Respondent, v. The Midland Flour Milling Co., and Lumbermen's Mutual Casualty Co., Appellant

Court of Appeals of Missouri, Kansas City

February 1, 1943

Appeal from Clay Circuit Court; Hon. James S. Rooney, Judge.

Affirmed.

Paul C. Sprinkle, Wm. F. Knowles and Sprinkle & Knowles for appellants.

(1) The Workmen's Compensation Commission erred in awarding respondent compensation because there was not sufficient competent evidence in the record to warrant the making of the award. (2) The Workmen's Compensation Commission erred in awarding claimant compensation because there was no competent evidence that the claimant's disability arose out of his employment or in the course of his employment because the evidence distinctly showed that any disability which the respondent sustained arose from horse play voluntarily engaged in by the respondent. (3) The circuit court erred in affirming the award of the Missouri Workmen's Compensation Commission for the reasons stated in assignments one and two. Hager v. Pulitzer Pub. Co. (Mo. App.), 17 S.W.2d 578; Keithley v. Stone & Webster Engineering Corp., 226 Mo.App. 1122, 49 S.W.2d 296; Gilmore v Ring Const. Co., 227 Mo.App. 1217, 61 S.W.2d 764; O'Dell v. Lost Trail, Inc., 339 Mo. 1108, 100 S.W.2d 289; Pearce v. Modern Sand & Gravel Co., 231 Mo.App. 823, 99 S.W.2d 850; Conklin v. Public Service Co., 226 Mo.App. 309, 41 S.W.2d 608; Blaine v Huttig Sash & Door Co., 232 Mo.App. 870, 105 S.W.2d 946; Dunnaway v. Stone & Webster Engineering, 227 Mo.App 1211, 61 S.W.2d 398; Secs. 3601, 3691, R. S. Mo. 1939; Subsec. B of Sec. 3695, R. S. Mo. 1939; State ex rel. Hussman-Ligonier Co. v. Hughes (Mo.), 153 S.W.2d 40; Sciortino v. Salia & Co. (Mo. App.), 157 S.W.2d 535.

Fred M. Roberts, Edward M. Tracewell and Roberts & Tracewell for respondent.

(1) (a) The event from which the injury and resulting disability arose, occurring, without any warning or word or act suggestive that such a thing was about to happen or was likely to occur, was sudden, unforeseen, and unexpected. (b) That conduct of Louis Morris constituted an act of violence is obvious from the resulting injury thereby immediately produced. (c) As to the objective symptoms of the injury, the respondent testified he had been totally disabled. (2) The act which caused respondent's injury was the voluntary act of Louis Morris, but not the voluntary act of the respondent, it appearing from the evidence that, at the time said Morris grabbed the respondent from behind, the respondent did not even know that said Morris was in the hall where respondent was engaged in sweeping the floor in the course of his employment. (3) It is well-settled law that injuries sustained by an employee at the hands of a fellow employee through jocular sportive acts, commonly designated horseplay, constitute accidents arising out of and in the course of the employment and are therefore compensable. Blaine v. Huttig Sash & Door Co., 232 Mo.App. 870, 105 S.W.2d 946, 953 (6) and cases there cited; Gilmore v. Ring Const. Co., 227 Mo.App. 1217, 61 S.W.2d 764, 766. (4) That respondent's injury was received in the course of his employment is emphasized by the fact that horseplay and sportive mischief among the employees at the mill where respondent was employed had been engaged in generally for a number of years with the permission of the employer's foreman, who not only had knowledge of such practices and consented thereto, but actually participated therein. Blaine v. Huttig Sash & Door Co., supra. (5) A finding of the Commission is a finding of fact, and is conclusive as would be the finding of a jury if supported by any circumstantial and competent evidence. Reed v. Sensenbaugh (Mo. App.), 86 S.W.2d 388, 392 (1); Keithly v. Stone & Webster Engineering Corp., 226 Mo.App. 1122, 49 S.W.2d 296, 299 (1).

OPINION

Cave, J.

This is an appeal from an award by the Workmen's Compensation Commission in favor of the respondent for an accident alleged to have occurred on or about April 22, 1941, while the respondent was in the employ of the Midland Flour Milling Company, one of the appellants. The claimant (respondent) contended in his claim for compensation that a fellow employee grabbed him while he was engaged at his work, and pushed him between a wall and a steam pipe so that he was thereby injured. To this claim the appellants filed their answer in which, among other things, it was denied that the claimant sustained any accidental injury which arose out of and in the course of his employment. It was further alleged in the answer that claimant was not suffering from any accidental disability and that any injury which he had resulted from "horseplay."

A hearing was held by one of the referees of the Commission, who made an award allowing the claimant compensation. This was reviewed by the entire Commission, which affirmed the award of the referee and found that the claimant as suffering "from an accidental injury arising out of and in the course of his employment." From the final award by the Commission, the cause was appealed to the Circuit Court of Clay County and that court affirmed the award, and appeal was perfected to this court.

The appellants assign three grounds of error, but in their argument very properly consider all three assignments together because, in effect, they raise but one issue, and that is whether there is substantial evidence to support the findings and award of the Commission. It is conceded that the respondent was employed by Midland Flour Milling Company at their mill in North Kansas City; that his duties consisted of cleaning and tempering wheat, looking after the machines, and cleaning and oiling them. On the day of the incident leading to this controversy, the respondent was on duty at the plant and at that particular time was sweeping dust and dirt in a hallway in which was located a man-lift which extended from the basement to the upper floors and was a power driven belt with steps and hand holds which would permit the employees to hold to in going from one floor to the other. One side of the belt would carry them to the upper floors, while the opposite side would bring them down.

While respondent was sweeping the hallway and within two or three feet of this man-lift, Brant Morris, a fellow employee, stepped on the man-lift and went to one of the upper floors. In a few minutes he returned to the floor where the respondent was working, and without saying anything to the respondent, grabbed him around his arms and body from the back and then followed a good natured scuffle for ten or fifteen seconds. No words were spoken, but respondent admitted it was all in fun. In trying to release himself from Morris' grip, respondent testified, "I got in a twist between the pipes and the wall and in the course of the struggle I hurt my back, and right away I felt like a tearing sensation." This incident occurred about one P. M., and respondent continued his work until his usual quitting time at three P. M. On his way home, he stopped at a toilet and noticed blood in his urine. He suffered considerable discomfort during the night and remained at home for three or four days and then was placed under the care of a physician and has not been able to return to work since. Brant Morris admitted the friendly assault and testified that as he went up the man-lift, the respondent "made a little motion at me as near as I remember," but the respondent said he had no recollection of doing that; however, if it was done, it was in a spirit of good humor. When asked if he was participating in the horseplay, claimant replied, "I was trying to get loose, yes."

The respondent had worked for this employer for approximately 22 years and testified that during that time various employees would engage in horseplay or bantering, such as people on friendly terms will do; but that A. J. Morris, the general superintendent, "would stop it when he caught them at it. I have always noticed him doing that." There was evidence that it was a common practice among the employees, as they went about their work, to engage in sportive acts in various ways which would bring their bodies in contact with each other and that one of the foremen "was the worst of all."

Respondent also testified that in 1925 and again in 1936, he had undergone an operation for stones in his bladder; that he had had treatments for prostatic trouble and had noticed blood in his urine probably half a dozen different times prior to this accident. Claimant does not recall violently striking the wall or pipe or any object, and there were no external evidence of bruises or injuries; but in the scuffle he was pushed against the wall and in between the pipe and the wall in a twisted position.

It is now the accepted rule in this State that the award of the Commission is regarded as a special verdict, and, if supported by substantial evidence, it must prevail, and in the absence of such supporting proof, it should be set aside. [Keithley v. Stone & Webster Engineering Co., 49 S.W.2d 296, and Reed v. Sensenbaugh, 86 S.W.2d 388.] Therefore, is...