Williams v. Anderson Air Activities

• Decision Date: 01 December 1958
• Docket Number: No. 7732,7732
• Citation: 319 S.W.2d 61
• Parties: Earl WILLIAMS, Respondent, v. ANDERSON AIR ACTIVITIES, Appellant.
• Court: Missouri Court of Appeals

Page 61

319 S.W.2d 61

Earl WILLIAMS, Respondent, v. ANDERSON AIR ACTIVITIES, Appellant.

No. 7732.

Springfield Court of Appeals, Missouri.

Dec. 1, 1958.

Riddle & Baker, Veryl L. Riddle, Charles H. Baker, Malden, for appellant.

Briney & Welborn, Bloomfield, for respondent.

RUARK, Judge.

This is an employer's appeal from the judgment of the circuit court reversing the final award of the Industrial Commission, which such final award had denied compensation.

Claimant was an employee who was working in 'plumbing and heating' at the Malden Air Base. On the occasion in question he and three others were engaged in installing a large automatic dishwasher. In so doing they had 'to make some new tables for the trays to come around on to push them in the dishwasher.' This was in a room with dry concrete floor which had a drain in the center and a slope which gave a fall of about three inches to the drain. After the tables were hooked together 'we discovered that the center in the corner was too high and we had to take the legs out from under them to cut them off.' They were so engaged upon the corner table. This consisted of a top, a small frame, and legs. The top, or drain board, was made of twenty-gauge galvanized steel, from six to eight feet long, three feet wide, with a four-inch rise in front and an eight-inch rise in back. This drain board weighed approximately one hundred twenty to one hundred twenty-five pounds. The drain board was supported by legs of pipe and these legs in turn were joined together by piping so they constituted one unit and had to be removed as such. The weight of this (leg) unit is not shown. Just how the drain board and legs were joined is rather indefinite, but 'the table and the legs the table set on was in a little frame that sets up about like that' (indicating); and 'the table set down in a little thing that sets up about like that' (indicating). The legs fitted into 'sockets' and in order to remove them it was necessary to take out certain screws and then raise the drain board (we are not sure about the frame) about four inches in order to let the legs come out underneath. Evidently the legs were not on the four corners, but at one end, in the corner of the room, there was an extended section or overhang which allowed sufficient space for a man to get underneath.

In this endeavor the screws which held the legs, in whatever the attachment was, had been removed. One employee stood at the end away from the corner in order to lift. The claimant got underneath the extended section in the corner, where he had the greater part of the weight to lift, 'the heavy end,' and the other two employees were underneath or at the side of the table in order to work the legs out. Claimant was in a bent-over position lifting with his back. They raised the table a few inches, but 'when I first picked it up so they could get this part of the legs out that thing was catching on the table, you see, and they had to pull it out underneath the other legs.' As claimant stated in answer to the referee, 'The legs was hung. I didn't have it quite high enough so the legs would come out from under' and the top of the assembly had to be lifted higher. In this exigency the claimant put his hands on his knees, rose on his toes, while in this bent-over position, and 'you know it was so heavy I didn't realize--it liked a little being high enough to get the legs out and I give a kinda extra surge and when I did I felt something just squash in my back.' There was no slip, no fall, and no jerking. The only conflict in the evidence is that claimant says he complained at the time that he had hurt his back; whereas two of those present testified that they didn't recall his complaining about his back until the next day. The medical evidence is that claimant has a herniated intervertebral disc L5, S1.

The referee's award (dated March 25, 1957) denied compensation because 'the employee's injury did not result from an accident arising out of and in the course of his employment.'

The Industrial Commission (July 30, 1957) denied compensation because 'we find from all the evidence that the employee's condition herein was not the result of an accident on July 18, 1956, arising out of and in the course of his employment with Anderson Air Activities, as alleged; compensation, therefore, must be and the same is hereby denied. Howard v. [St. Louis] Independent Packing Co., [Mo.App.] 260 S.W.2d 844; Crow v. Missouri Implement Tractor Co., [Mo.App.] 301 S.W.2d 423.'

After appeal, the circuit court in a decision rendered on the 28th day of April, 1958, held:

'Now on this day, finding and decision of Industrial Commission reversed because it is not supported by competent and substantial evidence upon the whole record and is contrary to latest ruling decision of Supreme Court. Cause ordered remanded to Industrial Commission.'

The questions we have are (a) whether the experience suffered by claimant was an accident within the meaning of the compensation act (Section 287.020, RSMo 1949, V.A.M.S.), and if so (b) whether the ruling of the commission is reversible as a finding based on an erroneous conclusion of law. In this instance the two questions are almost inseparable.

The Howard case, cited in the (July 30, 1957) finding of the commission, was one in which a lugger in a packing plant, engaged in his normal routine, was subjected to unusual strain when an extra-heavy forequarter of beef struck his shoulder with 'an unusual force.' The St. Louis Court of Appeals said, 260 S.W.2d at loc. cit. 845:

'* * * the injury itself is not the event but the result which the event produces, so that in a case of the character of the one at bar, where the injury results from the intentional act of the employee in exerting muscular force in connection with his handling of some inanimate object while performing the incidents of his employment, there must be some unusual occurrence, such as a slip, or a fall, or an abnormal strain, in order to bring the case within the coverage of the act.' (Italics supplied.)

And at loc. cit. 846:

'* * * the strain could not have been regarded as abnormal in the sense of being accidental unless it had been preceded or accompanied by some unusual occurrence, * * *.'

That case held that no compensable accident had occurred.

In the Crow case the claimant was assisting in the adjustment of an elevator of a corn picker, undertook to support one end while the supporting mechanism was adjusted, and the weight came down suddenly but expectedly on claimant's arms. The machine was a new model, was heavier than that to which the claimant was accustomed, and the amount or extent of the weight was unexpected. The weight caused an abnormal strain which resulted in the disability. The Springfield Court of Appeals said in substance that the event which causes the accident is the happening or occurrence, in part at least, external to the body itself, and, this being true, a strain, in and of itself, is not an accident. We quoted the Howard case to the effect that a strain could not be regarded as abnormal in the sense of being accidental when not preceded or accompanied by some unusual occurrence. And we said, 301 S.W.2d loc. cit. 428:

'If (as has been suggested) there was on claimant's part any mental misunderstanding or miscalculation with respect to the weight thus voluntarily assumed by him in an intended manner and at an anticipated time, such misunderstanding or miscalculation certainly was no more 'a happening or occurrence in part at least external to the body itself' * * * than was the abnormal strain, and...