Opinion
No. 41952.
November 13, 1961.
1. Workmen's compensation — any presumption that employee's death arose in course of employment disappears where all facts relative to injury and death were in evidence.
2. Workmen's compensation — course of employment — evidence sustained finding that employee's death resulting from explosion did not arise in course of his employment.
Evidence sustained finding that death of rubber company chemist from explosion at employer's premises, when he was testing a coating material, for an individual unconnected with his employer, which the individual had brought to him, by his direction, at employer's premises, did not arise out of and in course of employment.
3. Workmen's compensation — finding of Commission supported by substantial evidence conclusive on appeal.
Headnotes as approved by Jones, J.
APPEAL from the Circuit Court of Adams County; JAMES A. TORREY, J.
Carl A. Chadwick, Natchez; Barnett, Montgomery, McClintock Cunningham, Jackson, for appellants.
I. If Connell was making the experiment in part to solve Jackson's problem and also in part to obtain an answer to Armstrong's problem of finding a way to eliminate damage to its uncured rubber and other tire material by the rays of the sun, then Connell was acting within the scope of his employment for the rule is that "an act may be within the scope of employment although done in part to serve the purpose of the agent." Fatheree v. Griffin, 153 Miss. 570, 121 So. 119; Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 507; Vestal Vernon Agency v. Pittman, 219 Miss. 570, 69 So.2d 227; Whittemore Bros. Corp. v. De Grandpre, 202 Miss. 190, 30 So.2d 896.
II. In the absence of a positive showing to contrary in compensation proceeding the law presumes that accident occurred while employee was in course of employment, and when employer denies that employee was in course of employment the burden is on the employer to prove that the accident did not take place in course of employment and employer must establish such denial by direct and positive evidence and negative evidence will not suffice. Goodnite v. Farm Equipment Co., 234 Miss. 342, 103 So.2d 391; Pearson v. Dixie Electric Power Assn., 219 Miss. 884, 70 So.2d 6; Retail Credit Co. v. Coleman, 227 Miss. 791, 86 So.2d 66; Sanford v. A.P. Clark Motors (Fla.), 45 So.2d 185.
III. The undisputed proof shows that Connell received his mortal injuries while in the employ of Armstrong Tire Rubber Company, while performing the very type of work his employment required, and in the company laboratory, where he might properly have been in the performance of his duties, and during the hours of his work.
IV. The undisputed proof shows that Connell received his fatal injuries at a place where his duties ordinarily required him to be, and where he would have properly been in the performance of his duties to Armstrong and during hours regularly and customarily devoted by him to the performance of such duties, and in the absence of evidence that he was not engaged in his master's business there is a presumption that the accident arose out of and in the course of the employment. Goodnite v. Farm Equipment Co., supra; Lewis v. Trackside Gasoline Station, 223 Miss. 663, 103 So.2d 868; Majure v. William H. Alsup Associates, 216 Miss. 607, 63 So.2d 113; Pearson v. Dixie Electric Power Assn., supra; Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So.2d 357; Shannon v. City of Hazlehurst, 237 Miss. 828, 116 So.2d 546; Winters Hardwood Dimension Co. v. Harris' Dependents, 236 Miss. 757, 112 So.2d 227.
V. Claimant is not required by the workmen's compensation law to prove his claim by a preponderance of the evidence, but is only required to show a state of facts from which it may be reasonably inferred that the deceased was engaged in the master's business when the accident occurred and if so it is no defense to claimant's claim that he was at the same time, engaged in part to serve his own purpose. Lee v. Haltom Lumber Co., 230 Miss. 655, 93 So.2d 641; Pearson v. Dixie Electric Power Assn., supra; Retail Credit Co. v. Coleman, supra.
VI. The Workmen's Compensation Act should be given a broad and liberal construction and doubtful cases should be solved in favor of compensation. Cameron v. Hootsell, 229 Miss. 80, 90 So.2d 195; Goodnite v. Farm Equipment Co., supra; Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; King v. Westinghouse Elec. Corp., 229 Miss. 830, 92 So.2d 209; Lee v. Haltom Lumber Co., supra; Merchants v. Tracy, 175 Miss. 49, 166 So. 340; National Surety Co. v. Kemp, 217 Miss. 537, 64 So.2d 723; Pearson v. Dixie Elec. Power Assn., supra; Wilson v. International Paper Co., 235 Miss. 153, 108 So.2d 554.
VII. The undisputed facts in this case show that Connell was in the employ of Armstrong Tire Rubber Company at the time he was injured, was performing the type of work his employment required of him and in the place provided for its performance, and a legal presumption arises that the accident arose in the course of employment thereby making out a prima facie case of liability, placing upon Armstrong the duty to prove that the accident did not take place in the course of employment. This Armstrong failed to do and the only reasonable inference that can be drawn from the evidence as a whole is that Connell received his injury in the course of his employment.
W.A. Geisenberger, Joseph E. Brown, Jr., Natchez, for appellees, Armstrong Tire Rubber Company and United States Fidelity and Guaranty Company.
I. Response to Point I. Fatheree v. Griffin, 153 Miss. 570, 121 So. 119; Primos v. Gulfport Laundry Cleaning Co., 157 Miss. 770, 128 So. 570; Vestal Vernon Agency v. Pittman, 219 Miss. 570, 69 So.2d 227; Whittemore Bros. Corp. v. De Grandpre, 202 Miss. 190, 30 So.2d 896.
II. Response to Point II. Allman v. Gulf S.I.R. Co., 149 Miss. 489, 115 So. 594; Goodnite v. Farm Equipment Co., 234 Miss. 342, 103 So.2d 391; Gulf, M. N.R. Co. v. Sparkman, 180 Miss. 456, 177 So. 760; Gulf S.I.R. Co. v. Odom, 133 Miss. 543, 98 So.2d 60; Majure v. William H. Alsup Associates, 216 Miss. 607, 63 So.2d 113; Nichols v. Gulf S.I.R. Co., 83 Miss. 126, 36 So. 192; Owen v. Illinois Cent. R. Co., 77 Miss. 142, 24 So. 899; Pearson v. Dixie Elec. Power Assn., 219 Miss. 884, 70 So.2d 612; Retail Credit Co. v. Coleman, 227 Miss. 791, 86 So.2d 666; Sanford v. A.P. Clark Motors (Fla.), 45 So.2d 185; Secs. 1741, 1742, Code 1942; 2 Larson's Workmen's Compensation Law, Sec. 80.33.
III. Response to Points III and IV. Goodnite v. Farm Equipment Co., supra; Lewis v. Trackside Gasoline Station, 223 Miss. 663, 103 So.2d 868; Majure v. William H. Alsup Associates, supra; Pearson v. Dixie Elec. Power Assn., supra; Russell v. Sohio Southern Pipe Lines, Inc., 236 Miss. 722, 112 So.2d 357; Shannon v. City of Hazlehurst, 237 Miss. 828, 116 So.2d 546; Winters Hardwood Dimension Co. v. Harris' Dependents, 236 Miss. 757, 112 So.2d 227; Anno. 120 A.L.R. 684; Dunn's Mississippi Workmen's Compensation p. 229.
IV. Response to Point V. Lee v. Haltom Lumber Co., 230 Miss. 655, 93 So.2d 641; Malley v. Over the Top, Inc., 229 Miss. 347, 90 So.2d 678; Pearson v. Dixie Elec. Power Assn., supra; Retail Credit Co. v. Coleman, supra.
V. Response to Point VI. Cameron v. Hootsell, 220 Miss. 80, 90 So.2d 195; Ingalls Shipbuilding Corp. v. Powell, 271 Miss. 824, 74 So.2d 863; King v. Westinghouse Elec. Corp., 229 Miss. 830, 92 So.2d 209; Lee v. Haltom Lumber Co., supra; Merchants v. Tracy, 175 Miss. 49, 166 So. 340; National Surety Co. v. Kemp, 217 Miss. 537, 64 So.2d 723; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582; Wilson v. International Paper Co., 235 Miss. 153, 108 So.2d 554.
E.C. Ward, Laub, Adams, Forman Truly, Natchez, for appellees, E.T. Jackson, d.b.a. Sun Shield Coating and Lumbermen's Mutual Casualty Company.
I. Mr. Connell was not an employee of E.T. Jackson, d/b/a Sun Shield Coating within the meaning and contemplation of the Mississippi Workmen's Compensation Law, as amended. Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408; Crosby Lumber Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285; Demere Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Lee v. Haltom Lumber Co., 230 Miss. 655, 93 So.2d 641; Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 48 So.2d 148; Malley v. Over the Top, Inc., 229 Miss. 347, 90 So.2d 678.
This is a workmen's compensation claim that comes to us from the Circuit Court of Adams County. The attorney-referee, the full commission and the circuit Court denied the claim.
Mr. Harmon Connell was a chemist and chief compounder for Armstrong Tire Rubber Company, living and working in Natchez, Mississippi. On Sunday, December 30, 1956, in the laboratory of said company, Mr. Connell, by reason of an explosion, received burns from which he died the following day. The question here presented is whether the claimants have established that he received his injuries in the scope and course of his employment. The essential facts for an understanding of the issue are these:
Mr. Connell was, as aforesaid, chief chemist for the company. He was a conscientious and valuable employee, often working at night, on Saturdays, and on Sundays. The company was engaged in the manufacture of rubber products. For sometime it had had a problem known to some of the officers as to the effect of sunlight shining on rubber in storage. It was the custom of the company through its officials to refer to Mr. Connell various problems on which to work, and according to the record he was not supposed to work on any matters other than those referred to him. There had never been referred to him the job of preventing or endeavoring to prevent ultra-violet rays and other rays of the sun from penetrating through the windows onto the materials or products stored.
On Sunday, December 30, one E.T. Jackson, who lived at Natchez and was engaged in the operation of a television and radio repair shop and also a business under the name of "Sunshield Coating", called Mr. Connell at his home. Jackson and Connell were unacquainted. Connell's name had been given Jackson by a neighbor. Jackson advised him that he, Jackson, had a problem with the liquid that he used to coat windows in that the liquid, after being used and recaught for re-use several times would cloud and fog. He asked Mr. Connell if he could help him determine what caused this. Mr. Connell advised him to come to the company gate at two o'clock that afternoon and bring about four gallons of the liquid. He would see what could be done. They did meet, and went into the labortory. Mr. Jackson testified as to what there happened. He said Mr. Connell would pour some of the liquid into a vial or container, would heat same, and then test to see whether it was still "clouding". There was no discussion between Jackson and Connell as to compensation for this service, but Jackson testified that he was willing to pay for the work.
Mr. Jackson left the laboratory for about an hour and said when he returned Mr. Connell was heating and testing the liquid. While he, Jackson, was there in the laboratory and while Mr. Connell was testing some of his, Jackson's, fluid there was an explosion which burned Mr. Connell and as a result of which he died the next day.
There is no evidence that Mr. Connell was testing a material to determine whether it would filter the ultra-violet rays or other rays of the sun. Mr. Jackson testified it was used on windows to prevent glare and heat from penetrating. The tests, however, so far as here shown, were all confined to trying to ascertain the cause of the "clouding" or "fogging" so that Mr. Jackson could continue to use it without being met with such fogging conditions.
The claimants argue that because the accident happened in the laboratory of the rubber company where Mr. Connell worked, and because the company had a problem about sun rays, the presumption is that he was in and about the business of Armstrong Tire Rubber Company.
The claim was originally filed against Armstrong and Jackson and their respective carriers. On appeal, however, it is not argued that there was any error as to the finding that Mr. Connell was not an employee of Jackson but the assignment of errors and argument are based solely upon the liability of Armstrong.
(Hn 1) This is not a case where an employee was found injured or dead at the place of his employment with no proof as to cause of the injury or death. All facts relative to the injury and death are in evidence. Under such circumstances, any presumption would disappear. Highway Patrol, et al. v. Dependents of Neal, (Miss.), 124 So.2d 120.
(Hn 2) Furthermore, there was a full hearing and the Commission unanimously decided on the facts that the accidental injury and subsequent death did not arise out of and in the course of the employment of the decedent by Armstrong Tire Rubber Company, nor was he at the time of the accident and death an employee of E.T. Jackson.
(Hn 3) This finding of the Commission was supported by substantial evidence and, under many decisions of this Court, is conclusive on appeal. Malley v. Over The Top, Inc., 229 Miss. 347, 90 So.2d 678; United Funeral Homes, Inc., v. Culliver, 128 So.2d 579; Cole v. Superior Coach Corporation, 234 Miss. 287, 106 So.2d 71; Jackson Oil Products Co. v. Curtis, 129 So.2d 403; I.B.S. Manufacturing Company v. Dependents of Cook, 130 So.2d 557.
Affirmed.
McGehee, C.J., and Kyle, Ethridge and Gillespie, JJ., concur.