Williams v. Great Atlantic & Pacific Tea Co.

• Decision Date: 01 February 1960
• Docket Number: No. 23064,23064
• Citation: 332 S.W.2d 296
• Court: Missouri Court of Appeals
• Parties: James H. WILLIAMS, Appellant, v. GREAT ATLANTIC & PACIFIC TEA CO., Respondent.

Page 296

332 S.W.2d 296

James H. WILLIAMS, Appellant, v.GREAT ATLANTIC & PACIFIC TEA CO., Respondent.

No. 23064.

Kansas City Court of Appeals, Missouri.

Feb. 1, 1960.

Francis H. Welch, Buford, Welch & Fitzgerald, Kansas City, for appellant.

Bellemere & Bellemere, Kansas City, for respondent.

HUNTER, Judge.

Appellant, James H. Williams, sought workmen's compensation from his employer-respondent, The Great Atlantic & Pacific Tea Co., for injuries he suffered when a tornado blew on him a portion of the wall of the building where he was working.The Referee, the Industrial Commission of Missouri, and the Circuit Court denied recovery.Hence, this appeal.

The salient testimony is uncontroverted.On May 20, 1957, appellant was pursuing his duties as checker at his employer's store located in the Ruskin Heights Shopping District in southern Jackson County, Missouri.The check out stands where appellant tabulated customers' purchases and accepted payment were located on the east side of the store near the doors.He had reported for work and had been assigned a check stand at 5:00 p. m.

It was a stormy day, and the radio throughout the afternoon broadcasted tornado warnings for the entire Kansas City and Jackson County area.At approximately 7:38 p. m. a tornado struck and Ruskin Heights area causing many fatalities and inflicting severe injury to persons and property.

At 7:30 p. m. the lights in respondent's store went out.About seven minutes later appellant stepped outside the store and went to the south side to look.He then went back inside the store and warned the assistant manager, who was then in charge, that a tornado was coming from the southwest.The assistant manager went outside to look for himself.Appellant unhesitatingly decided to act.He went to the back (west side) of the store to warn some 8 to 10 other employees and customers of the approaching tornado.He warned them to seek shelter at the front (east side) of the store where approximately 30 to 35 other employees and customers were.

After warning the last of his fellow employees he started back to the front of the store.It was his intention to seek shelter in the northeast part of the store as it had a double section of concrete and in his opinion was the strongest part of the building.He proceeded just a short distance when the southwest wall caved in causing him to be knocked unconscious and injured.

Several others were trapped back there with him and one of them was killed.Only about a minute or a minute and a half elapsed from the time appellant came back into the store to the time the tornado struck it.About 30 feet of the back (west) end of the building wall was demolished.The front walls were intact.The manager who was not in the store when the tornado struck testified that as it turned out the front was the safest place.He admitted he did know the location of those injured.

Respondent's store, the first and southmost of several located adjacent to each other, faces east.Its east wall (where the check stands are located) is glass.Its west and south sides, which are exposed, were brick.Its north side, is adjacent to a hardware store.Appellant knew of no store of a more substantial construction in the area.

Other testimony described the havoc caused by the tornado as it swept a wide path through this home and business area.The other somewhat adjacent buildings were substantially damaged although their walls did not cave in.The roofs were lifted off all of them, and the Crown Drug Store to the north was completely demolished.Numerous houses immediately adjacent to the store as well as throughout the area were levelled and reduced to rubble.The nearby Ruskin Heights High School building constructed of brick and tile located about a block and a half away and its wooden gymnasium were demolished.

In its final award denying compensation the Industrial Commission made the following finding: 'Appellant sustained an accident on May 20, 1957, while on the employer's premises and during the usual hours of business.We further find that the fact that the employee was injured in this particular building, which was one of many damaged by the tornado, cannot be held to have subjected him to a greater hazard than others who were in the path of the storm.Stone v. Blackmer & Post Pipe Co. , 27 S.W.2d 459;and see: Kripplaben v. Jos. Greenspon's Sons Iron & Steel Co. , 50 S.W.2d 752.The accident did not 'arise out of' the employment.'

Findings of the Industrial Commission must be supported by 'competent and substantial evidence upon the whole record.'V.A.M.S.Const. Article V, Sec. 22.On review of questions of fact decided by the Industrial Commission, our inquiry, as that of the circuit court, is limited to whether or not the findings of the Commission are supported by competent and substantial evidence upon the whole record.This does not mean that the reviewing court may substitute its own judgment on the evidence for that of the administrative tribunal.But it does authorize it to decide whether such tribunal could reasonably have made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence.Kansas City v. Rooney, en Banc, 363 Mo. 902, 254 S.W.2d 626.

Additionally, decisions of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on the reviewing court and fall within the court's province of review and correction.Vaseleou v. St. Louis Realty & Securities Co., 344 Mo. 1121, 130 S.W.2d 538, Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61.

Our Workmen's Compensation Law requires the accident to be one 'arising out of and in the course of' the employment in order to be compensable.Section 287.120 RSMo 1949, V.A.M.S.These are separate tests and each must be satisfied.Every case must be determined upon its own facts.

It is tacitly conceded in the present case that the instant injury arose 'in the course of' the employment for it occurred within the period of the employee's employment, at a place on the work premises where he might reasonably be and while he was engaged in a laudable effort to warn fellow employees and customers of the advancing tornado and to seek a place of safety.SeeGraves v. Central Electric Power Cooperative, Mo.Sup., 306 S.W.2d 500, 503.

But did it arise 'out of' the employment?The Referee, Industrial Commission and Circuit Court ruled it did not.

Tornadoes are acts of God.The generally accepted rule is that an injury resulting to an employee by reasons of the elements or act of God may be compensable as an injury arising out of his employment only where it is shown that the nature of the employment subjects the employee to hazards from the forces of nature over and above those to which the public generally is exposed.The character of the employment in the involved aspect must be such as to...