Toole v. Bechtel Corp., No. 45182
| Court | United States State Supreme Court of Missouri |
| Writing for the Court | EAGER |
| Citation | 291 S.W.2d 874 |
| Parties | Helen TOOLE, Dependent Widow of Earl A. Toole, Deceased Employee, Appellant, v. BECHTEL CORPORATION, Employer, and Pacific Indemnity Company, Insurer, Respondents |
| Docket Number | No. 45182,No. 2 |
| Decision Date | 11 June 1956 |
Page 874
Employee, Appellant,
v.
BECHTEL CORPORATION, Employer,
and
Pacific Indemnity Company, Insurer, Respondents.
Motion for Rehearing or to Transfer to Court En Banc Denied
July 9, 1956.
Page 876
Peter Cosmas and Thomas L. Sullivan, St. Louis, for appellant.
Albert I. Graff, Courtney S. Goodman, and Malcolm I. Frank, St. Louis, for respondents.
EAGER, Presiding Judge.
The present appeal is from an order of the Circuit Court reversing an award of the Industrial Commission in favor of claimant. Claim was filed for the death of Earl A. Toole, claimant's husband, and she was awarded, on December 21, 1954, the sum of Thirty Dollars per week for four hundred weeks, or until her prior death or remarriage, plus burial expenses and medical aid. It was admitted, expressly or by necessary inferences: that the deceased was, at the time of his injury, an employee of Bechtel Corporation, the employer; that the parties were subject to the Missouri Workmen's Compensation Law, Section 387.010 et seq. RSMo 1949, V.A.M.S.; that the employee died on April 23, 1953, as a result of injuries sustained on February 6, 1953, while an employee; that the employer was insured by Pacific Indemnity Company; that the claimant was and is the only dependent; and that the average weekly wage of deceased was at least Sixty Dollars. The answer of the employer was essentially a general denial, but the actual and sole issue developed was whether the injury arose out of and in the course of the employment. The findings of the Commission will be referred to later.
The deceased, Earl A. Toole, was a laborer, 50 years old, living in St. Louis. He had been working as such for this employer for a year or more on a large construction
Page 877
job in St. Louis County, specifically, a plant for Lever Bros. He was brought to this job by his brother-in-law, Richard C. Williams, the labor superintendent. Deceased had no children of his own, but his wife had a grown son and a daughter, one or more grandchildren, and also nieces and nephews; two of these nephews were working on this same job.About two months prior to February 6, 1953, Williams, the labor superintendent, placed deceased in charge of the 'toolroom' where all tools for the laborers and carpenters were kept and issued. This 'room' was actually a space in the southeast corner of a galvanized steel warehouse building, enclosed on two sides by the building wall and on the other two by a partition of poultry wire with wooden framework. To the west of this 'room' was a space used by the pipefitters for storing and issuing material; a door made of two by fours and poultry wire led from the toolroom into this pipefitters' space. Another door in the south building wall led from the pipefitters' space to the outside; this door was fitted with a Yale lock, whereas the inner wire door was locked with a hasp and a padlock. There was a sliding window at the south end of the toolroom through which tools were issued, and there were various bins where the tools were kept. An employee known on the job as Barney Barts (sometimes spelled Bartz, and whose real name was said to be Albright or Aubright) was in charge of the material for the pipefitters.
There was no requirement that deceased remain in the toolroom at lunch time, but he often ate his lunch there. He had been instructed that when he left he should lock the wire door. About 90% of the employees ate lunch on the premises, for the lunch period was only half an hour, from 12:00 to 12:30. Williams, the labor superintendent, testified that he put deceased in charge of the toolroom because he had 'not been feeling good' and the job was 'getting short,' i. e., they were cutting down the force; later on re-direct examination he said that a previous substantial loss of tools, which the superintendent had told him about, was 'one reason I took the other man out.'
On Friday, February 6, 1953, Toole was seen at his regular work about 11:00 A. M. and perhaps as late as noon; at about 12:20 P. M. a workman called in to a small group of laborers eating lunch in the nearby labor shed that the man in the toolroom had been hurt; they, including two or three of deceased's relatives, ran to him. They found no one else in the building, the outer door open and the wire door leading to the toolroom open. Deceased was lying on the floor in about the center of the toolroom; his head was bloody and there was a pool of blood on the floor; the top of his thermos bottle and most of a cigarette were on the floor in or near the blood, as was his cap; the bottle was on a bench. It was first thought that he had been struck on the head, and some time elapsed before it was learned that he had been shot. He was conscious but spoke only of pain and of his legs. An ambulance was called and he was taken promptly to the St. Louis County Hospital. It was found that he had been shot four times, once in the right temporal region, once in the lower left side (that bullet lodging near the spine), and twice in the left leg. He was operated on that night, chiefly to suture a perforated intestine, but no attempt was ever made to remove the bullets from the more serious wounds.
No one was found who admitted hearing any shots. Several witnesses testified that when deceased was found, or shortly thereafter, they saw nothing in the toolroom which appeared to have been disturbed or to be out of order; one witness, a partner of one of deceased's nephews by marriage, testified that when he was later placed in charge of the toolroom at 1:30 P. M. for the remainder of the afternoon, some tools were on the floor and some on benches (which apparently seemed out of place to him), but he admitted that he did not really know whether this was unusual or not. By 1:30 P. M. many persons had been in the place. The testimony of this witness, taken as a whole, was rather equivocal. All testified that there was nothing seen to indicate a fight or struggle; there was no evidence whatever that anything was missing from the toolroom, either on the date deceased
Page 878
was shot or at any time during the period when he had been in charge.Barney Barts was said to have left the plant at 4:30 P. M. on February 6, 1953; no one, however, testified to seeing him at any time after the shooting, and various witnesses testified that they did not see him after that date. An arrest order was issued for him, the officers looked for him, and he was presumably a fugitive at the time of the hearing. Investigation was made by the sheriff's office and by the local police; no one was found who saw the shooting, although one witness testified that deceased stated that one Baker and another were present. Baker declined to testify at the coroner's inquest. The other man flatly denied all knowledge of the shooting. There was much evidence from claimant's witnesses that deceased had never had any quarrels, disputes or trouble with anyone on this job; there had been no labor violence and only a few apparently minor jurisdictional disputes which were promptly settled by the Building Council. For whatever it may be worth, there was evidence that deceased had served a term for manslaughter in the Illinois Penitentiary beginning about 1926. The actual record was excluded on objection. There was also considerable evidence that he was a peaceful man and that he got along well with everyone. The entire transcript of the evidence taken at the coroner's inquest was received in evidence, and certain of our references to the facts are taken from that evidence.
In the hospital deceased had a private room for eight to ten days; he was then put in a two-bed room with one Ross who had been shot, and upon whom there was a sheriff's guard. There was considerable controversy concerning the rationality and mental condition of deceased after he was shot. The claimant and most of her witnesses testified, in substance, that he was 'not himself,' except perhaps for a few minutes at a time, and that he very frequently talked of impossible things; however, he was not unconscious and he frequently did talk. He recognized the family and spoke to them. The hospital pathologist described the physical injuries, and from the hospital record, stated that Toole developed hallucinations 'about a month after admission.' but that during periods when he did not have hallucinations he was 'apparently considered normal.' His physical condition gradually declined, and a purulent meningitis developed, with terminal pneumonia. He died on April 23, 1953.
The deceased did not tell any of his relatives the circumstances of the shooting, nor the identity of the person who shot him. Some of them asked him about this, but he either remained silent, closed his eyes, or (to one) said that this was 'his business' and that they had nothing to do with it. There was evidence that three deputies of the sheriff's office talked with him on different occasions about the shooting; one was the special deputy who was guarding Ross in a nearby room and had become acquainted...
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Davis v. Research Medical Center, No. WD
...second step of the analysis because art. V, § 18 demands that our review be "upon the whole record." See, e.g., Toole v. Bechtel Corp., 291 S.W.2d 874, 883 (Mo.1956) (holding that "the overall effect of all of the evidence," including that contrary to the Commission's award, must be conside......
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Ward v. Penn Mut. Life Ins. Co., No. 8000
...149 S.W.2d 404, 405-406(2); Ray v. Mutual Life Ins. Co. of N. Y., Mo.App., 218 S.W.2d 986, 990(3). See also Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, 2 Contrast Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 369, 1 S.W.2d 99, 101(1, 2), 57 A.L.R. 615 (erroneously regarded as cont......
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Heaton v. Ferrell, No. 7750
...See also the Culberson, Lunn, Dehoney, Foster, Morgan, Goetz, and May cases cited in footnote 1, supra. 3 Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, 880; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62, 65(6); Long v. Schultz Shoe Co., Mo.App., 257 S.W.2d 211, 4 Brown v. Anth......
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Lathrop v. Tobin-Hamilton Shoe Mfg. Co., TOBIN-HAMILTON
...573(12), and cases there cited. 4 See Kelley v. Sohio Chemical Co., Mo. (banc), 392 S.W.2d 255, 257, 258; Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, 880; Liebman, supra note 2, 391 S.W.2d at 950(2); Kammeyer v. Board of Education, Mo.App., 393 S.W.2d 122, 127; Scherr, supra note 1, 305 S.......
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Davis v. Research Medical Center, No. WD
...second step of the analysis because art. V, § 18 demands that our review be "upon the whole record." See, e.g., Toole v. Bechtel Corp., 291 S.W.2d 874, 883 (Mo.1956) (holding that "the overall effect of all of the evidence," including that contrary to the Commission's award, must be conside......
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Ward v. Penn Mut. Life Ins. Co., No. 8000
...149 S.W.2d 404, 405-406(2); Ray v. Mutual Life Ins. Co. of N. Y., Mo.App., 218 S.W.2d 986, 990(3). See also Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, 2 Contrast Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 369, 1 S.W.2d 99, 101(1, 2), 57 A.L.R. 615 (erroneously regarded as cont......
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Heaton v. Ferrell, No. 7750
...See also the Culberson, Lunn, Dehoney, Foster, Morgan, Goetz, and May cases cited in footnote 1, supra. 3 Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, 880; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62, 65(6); Long v. Schultz Shoe Co., Mo.App., 257 S.W.2d 211, 4 Brown v. Anth......
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Lathrop v. Tobin-Hamilton Shoe Mfg. Co., TOBIN-HAMILTON
...573(12), and cases there cited. 4 See Kelley v. Sohio Chemical Co., Mo. (banc), 392 S.W.2d 255, 257, 258; Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, 880; Liebman, supra note 2, 391 S.W.2d at 950(2); Kammeyer v. Board of Education, Mo.App., 393 S.W.2d 122, 127; Scherr, supra note 1, 305 S.......